Macri and Macri
[2010] FMCAfam 662
•1 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MACRI & MACRI | [2010] FMCAfam 662 |
| FAMILY LAW – Children – mother’s wish to commit three children to Jewish religion – father not opposed to children attending Jewish and Catholic events but says commitment should be deferred until children are of an age to make informed decision. |
| Family Law Act 1975, ss.60B, 60CA, 60CC |
| Paisio and Paisio (1979) FLC ¶90-659 C & B [2007] FMCAfam 539 Y & H [2005] FMCAfam 229 L & O [2005] FMCAfam 223 |
| Applicant: | MR MACRI |
| Respondent: | MS MACRI |
| File Number: | DGC 1156 of 2010 |
| Judgment of: | McGuire FM |
| Hearing date: | 24 May 2010 |
| Date of Last Submission: | 24 May 2010 |
| Delivered at: | Dandenong |
| Delivered on: | 1 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Da Gama |
| Solicitors for the Applicant: | Vernon Da Gama & Associates Solicitors |
| Counsel for the Respondent: | Mr Meehan |
| Solicitors for the Respondent: | Susan Snyder |
ORDERS
That the husband and wife have shared parental responsibility for the three children of the marriage [X] born [in] 2000, [Y] born [in] 2001 and [Z] born [in] 2001.
That the children live with the applicant on alternate weeks and the respondent on alternate weeks with the changeover to take place on the Monday of each week through the children’s school save that on non school days the changeover take place at 3.30 pm on Monday.
That the children live with each of the parties for one half of each of the school holidays.
That the children spend their birthdays with the parent with whom the child is living on that day and the other parent be allowed to attend a birthday party for that child.
That on Mother’s Day the children spend time with the mother at times as agreed and in default of agreement from 9.00 am to 5.00 pm.
That on Father’s Day the children spend time with the father at times as agreed and in default of agreement from 9.00 am to 5.00 pm.
That each parent advise the other of all matters relating to the children’s education and all matters relating to any serious medical issues which may arise when the children are in the their respective care.
That each party provide to the other school reports, newsletters and invitations to parent teacher nights and ensure that the other party is registered as an emergency contact at the children’s school.
That the children:
(a)Live with the wife from 6.00 pm on the eve of Passover in each year until 3.30 pm the following day and from 6.00 pm the evening of the Jewish New Year in each year until 3.30 pm the following day, for one night or day during the Purim festival in each year and for the night during the Chanukah festival in each year which coincides with the celebration known as [location omitted].
(b)Live with the husband from 9.00 am on 24 December to 5.00 pm on 26 December in each year and from 9.00 am on Holy Thursday until 9.00 am on Easter Monday in each year.
That without admissions as to the necessity for same each party be restrained from denigrating the other to or in the presence of the children.
That the wife’s time with the children in the week commencing 28 June 2010 conclude at 5.30 pm on 5 July 2010.
That each party permit the children reasonable telephone communication with the other party.
That the mother be and is hereby restrained from causing or allowing the children or any of them to take part in any Bar Mitzvah or Bat Mitzvah without the express written consent of the father.
NOTATION
The Court notes that there is nothing in these orders prohibiting or preventing:
(a)The father taking the children to Catholic Mass or events.
(b)The mother taking the children to the Jewish Synagogue for regular events or observances or partaking in Jewish feasts, festivals and celebrations.
IT IS NOTED that publication of this judgment under the pseudonym Macri & Macri is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 1156 of 2010
| MR MACRI |
Applicant
And
| MS MACRI |
Respondent
REASONS FOR JUDGMENT
This application concerns three children [X] born [in] 2000 (aged 10 years) and twins [Y] and [Z] both born [in] 2001 (aged eight years).
The parents, to their great credit, have agreed most of the living arrangements for the three children. They will live on a week-about arrangement between the parents and for one half of school holiday periods. The parents will have equal shared parental responsibility for the children.
The issues remaining for determination by the Court are these:
a)Whilst the parties agree that the changeovers for the week-about arrangement will happen on Mondays through the children’s attendance at school, they do not agree as to the time for changeovers on non-school days. The father prefers the changeovers to be at 9.00 am. The mother argues that they should take place at 3.30 pm on the Monday.
b)Despite the general agreement for a week-about arrangement, the father says that the children should spend Sundays with him when the mother is at work. The mother says that, although she works part-time on most Sundays, she makes proper and alternative arrangements for the care of the children and that the general week-about arrangement should continue.
c)The major issue between the parties is that the wife wants the ability to educate the children in the Jewish tradition and religion. Specifically, she would intend to have the children participate in their Bar Mitzvah or Bat Mitzvah when they are of age. The father seeks an injunction to prevent the children undertaking these religious ceremonies. His position is that the children should be free to choose their own religious persuasion and preference when they are of sufficient age, maturity and to do so in a voluntary and informed manner.
The father is 44 years of age and is a self-employed [occupation omitted]. The mother is 37 years of age. She works part-time as a [occupation omitted] including for a number of hours on most Sundays.
The parties co-habited from 1992. They were married in 1998 and separated on 25 December 2008.
The father was raised in the Catholic religion. His evidence is, however, that he now attends church irregularly. He emphasises that his argument is not one of preference of the one religion over the other but, rather, that the children should have the benefit of exposure to and participation in the culture and traditions of both religions but without commitment for them by either parent.
The mother continues to practice the Jewish religion. The parties were married by a Jewish celebrant and their son has undergone circumcision in accordance with traditional Jewish practice. It is conceded by the father that he attended some religious ceremonies and Jewish traditional family events during the course of the marriage.
The children have attended some classes in the Hebrew language but these have apparently lapsed at the behest of the children themselves.
The mother has enrolled the children in a Jewish youth group which takes place each Sunday for a few hours. Their continued attendance is an issue between the parties. The father argues that the youth group is a part of a course of religious instruction for the children and perhaps with an element of political content. He cites an example of the children informing him that they have discussed the Israeli-Palestinian conflict at the youth group. The mother paints a different picture of their activities at the youth group. She says that they play games, make pizzas etcetera. It is clear from her evidence, however, that the participants in the youth group are not secular and that the activities include some basic education in the Jewish tradition, culture and religion.
The father says that the children have shown some reluctance to attend the youth group. The mother concedes that this has happened on one occasion only when the children expressed a preference to play with their friends rather than to attend the youth group. She says that they are otherwise keen to attend and enjoy the socialising and content of the group activities.
The mother works most Sunday afternoons. Her hours vary and may be for up to five or six hours. The children are cared for by the maternal grandmother at their own home during these times. This is a situation that has continued for some considerable time. The mother says that the children enjoy the company of their grandmother and they have the advantage of being in their own home. The father says that the children have expressed a preference “to be with a parent” during these times rather than with their grandmother.
The law
I must determine these issues in accordance with the relevant sections of the Family Law Act1975 (“The Act”). Section 60B set outs the objects and principles of Part VII of the Act as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
It is trite to emphasise that the fundamental basis of my determination is that the children’s best interests are the paramount consideration.[1]
[1] See s.60CA of the Act.
Section 60CC(2),(3) and (4) set out the matters which I must take into account in determining what is in the best interests of the children. Those matters are divided into “primary” considerations and “additional” considerations. I must reference each of those considerations insofar as they are relevant to the probative evidence before me and the proposals of the parties. The considerations to be had are:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
This is not a matter in which each party directly argues that their own religious persuasion is better, more desirable or preferable than the other. Nevertheless, it is important to point out that by way of a long line of authority the Family Court have made it clear that it is not the role or task of the Court to decide whether one religion is preferable to another. As the Full Court said in the well known decision of Paisio and Paisio[2] at [78,513]:
An Australian Court cannot commence with any premise that as a matter of public policy one religion is to be preferred to another or that a “religious” upbringing is to be preferred to a “non-religious” one.
[2] (1979) FLC ¶90-659.
Time of changeovers
The parties are in general agreement as to a week-about arrangement for the three children. They agree that changeover should occur at school on the Mondays. The disagreement arises in respect of non-school days. The father’s proposal is to have changeovers at 9.00 am which is effectively consistent with school days. The mother’s proposal is for 3.30 pm.
The father’s argument is essentially one of consistency and routine. The mother’s argument is that in the event of a long weekend both the children and the relevant parent would be able to enjoy the full benefits of that long weekend. It is a fact, of course, that long weekends occur variously throughout the calendar year. They usually take place on a Monday. It may be that over a single year one or other of the parents may have one or two more days with the children if they were to stay over a long weekend until 3.30 pm on the Monday. However, in the long term it is likely that this situation would balance out. There is no evidence that the children are making a preference either way in respect of this issue.
Overall, I prefer the argument of the mother. If the children are with one particular parent for a weekend and that is a long weekend then it would seem to be in the children’s best interests that they be able to fully enjoy the benefits of a long weekend. There would be no detriment to either party in respect of school holidays as the changeovers could consistently occur at 3.30 pm. Consequently, I intend to order that changeovers during school holidays and gazetted public holidays occur at 3.30 pm.
Sundays – children’s involvement in the Jewish youth group
The parties generally agree a week–about arrangement for the children. The father, however, says if the mother is working on a Sunday then the children should spend that time with him. The mother concedes that she works regularly on a Sunday but argues that she makes proper alternative arrangements for the children’s care namely that they spend the time with the maternal grandmother but in their own home.
There is a related issue as to Sundays. The mother has enrolled the children in the Jewish youth group on Sunday afternoons for about two or three hours. The father is opposed to the children attending the youth group. He says that he has an “ideological difference” with their attendance as he sees it as leading to an entry into and a commitment to the Jewish religion.
The children have been going to the youth group now for some months. They attend between 3.00 pm and 5.00 pm. The grandmother drops them at the venue at 3.00 pm. The mother collects them at 5.00 pm. However, they do not attend the youth group on the alternate Sundays when they are with the father. Given that the mother works most Sundays, should the children spend that time with the father as he wishes then they would not attend the Jewish youth group at all, at least not without the force of a Court order.
The mother works as a [omitted] she starts work between 10.00 am and 12.00 pm. She finishes at 4.00 pm. She has been working in this role for the last two years. It follows that generally the children have been cared for by the grandmother during that time but have also been attending the youth group from 3.00 pm.
The father says that the children have expressed a preference to be with one or other of the parents rather than with their grandmother. The mother concedes that this might be the case. She argues, however, that the children enjoy their grandmother’s company and are comfortable with her. This time takes place in the children’s home. It allows them to attend at the youth group which the mother sees as something the children enjoy and generally of benefit to them.
The father says that there has been “at least one occasion” the children or one of them has shown a reluctance to attend the youth group. He particularises only one occasion. The mother concedes the circumstances of that occasion but says that it was because the children had been playing with some neighbourhood friends before the time for the youth group. She says otherwise they enjoy the time and activities at the youth group.
Under cross-examination the mother conceded that only Jewish children attended at the youth group. It is clear from her evidence that there is some basic religious content to the program although I accept her evidence that the children also play games and partake in other general children’s activities.
The mother concedes that she enrolled the children in the youth group without first discussing the issue with the father but it is equally clear that he became aware of the children attending this activity almost immediately.
At this point it is worthy of emphasising that the father, to his credit, at no stage directly criticises the Jewish religion or seeks an order that the children should have no participation whatsoever in that religion. As I understand his case, he is in fact keen for the children to have the advantages of exposure to the culture and traditions of the Jewish tradition but not a formal commitment to the exclusion of other religious practices and traditions.
I place no emphasis on any stated views of the children. The father particularises only one isolated event. The children are only eight and ten years of age. There is no evidence of the children or any of them having expressed any rational, consistent or committed views as to religious preference.
After considering all the evidence and the proposals of the parties I am of the view that the arrangements that have occurred now for some considerable time since separation should continue. The children are in their own home when the mother is at work. She works for only a part of the Sundays. There is no criticism of the grandmother as a carer. The statement by the children that they may have a “preference” to be with one or other of the parents at that time is not necessarily inconsistent with them benefiting by being in their home with their grandmother and enjoying the relationship with their grandmother. Obviously, such an arrangement also avoids the need for two further changeovers for these children thereby taking away from them one of the benefits of the week-about arrangement.
I do not see that the children’s attendance at the Jewish youth group to be inconsistent with the father’s position or his ideological views. Indeed, the evidence suggests to me that the father’s quest for the children to receive a basic understanding of each religion to allow them to make an informed and mature choice is in part achieved by them attending a children’s youth group. It is for a period of two hours only. It will occur only every second Sunday. There is no evidence that it requires ongoing commitment to the Jewish religion or involves any formal ceremony or initiation.
Children’s Bar Mitzvah or Bat Mitzvah
This would on the evidence appear to be the most serious and fiercely contested issue between the parties and is at the crux of their ideological and parenting differences. The father’s position is clear. He wants the children to adopt a religion, if any, being fully informed, and at an age when they are of such maturity that they are able to rationalise the decision being undertaken. He stresses that he does not wish to impose Catholicism on the children by way of communion or confirmation. He simply argues that similarly the children should not be formally inducted into the Jewish religion.
The Bar Mitzvah takes place when a boy is 13 years of age and the Bat Mitzvah when a girl attains 12 years. The mother says that there were discussions between the parties during their relationship and perhaps when the children were infants as to them being raised in the Jewish religion and participating in the Bar or Bat Mitzvah. Regardless of any discussions that may have happened at the time, the fact is that the parties are now in dispute.
The wife concedes in her evidence that the Bar or Bat Mitzvah itself is a form of “initiation” into formal practice of the Jewish religion. The example she gives is enlightening in that she says that the children would not be able to marry in the Jewish religion if they had not undertaken the Bar or Bat Mitzvah.
The children are ten and eight years of age. There is no evidence of any weight as to their own views in regard to this issue and I would not, in all likelihood, afford weight to the views of children of this age to such a complex and philosophical issue.
The mother argues that by reason of her own religious practice the children have been “considered Jewish since birth”. In answer to a question from me, the mother said that she considered the Bar or Bat Mitzvah to be a “coming of age” rather than an entering into the Jewish religion. Nevertheless, her evidence also made it clear that the Bar or Bat Mitzvah is preceded by a course of education. There is a prerequisite of a learning and understanding of the Hebrew language. The education process appears on the evidence to take at least one year.
There is also a suggestion in the mother’s evidence that she is willing to take into account the views of the children, if any, as to their religious preference. However, it is also clear that the order she seeks is one made now, when the children are aged ten and eight years, that she be able to provide them with the Bar or Bat Mitzvah when they are of age which is at least three and perhaps five years in the future.
The Courts have regularly been called upon to make determinations such as that currently before me. My colleague Federal Magistrate Altobelli in C & B[3] was confronted with a similar factual situation. The child in that matter was only two years of age at the time of judgment. The father was Catholic and the mother Jewish. The father did not seek any injunctive orders. The mother, however, sought an order restraining either parent from allowing the child to take part in sacramental celebrations or having a Bar Mitzvah unless with the written consent of the other. As in the matter now before me, there was no issue with the children participating in regular Catholic and/or Jewish events such as attending Catholic mass or Jewish observances.
[3] [2007] FMCAfam 539.
Federal Magistrate Altobelli ultimately did not make the injunctive order. Interestingly, his Honour noted at [113] in respect of any possible contravention:
I doubt it can be enforced. Even if it were contravened it would be almost impossible to fashion an appropriate sanction.
His Honour noted that the issue is one of parental responsibility and that the parents in that case were articulate and intelligent. His Honour was of the view that this was an issue best left for the parents rather than the Court and specifically it would not be in the child’s best interests to make such an order.
With respect to his Honour, whilst agreeing with the philosophy of his Honour’s reasoning which, of course, restates the objects and principles of s.60B of the Act, I believe that I am mandated to make a determination where parents are either unwilling or unable to do so in respect of their children.
Counsel for the mother referred me to two authorities being decisions of Federal Magistrates at first instance. Y & H[4] is a decision of Federal Magistrate Baumann. In that matter the father was a practicing Anglican although not the primary carer of the child. The mother was an atheist. The father wished to have the child baptised into the Anglican religion. The child was 15 months of age. His Honour made an order that the father be permitted to have the child baptised into the Anglican faith.
[4] [2005] FMCAfam 229.
I believe that the facts of Y & H are easily distinguished from those currently before me. The child in that case was 15 months old. His Honour at [22] saw the issue being as to:
whether a Christian baptism which at least on the father’s case, opens up an option for the child, should take place now or at some future date.
The issue before me is that the father argues that the injunctive order would, in fact, preserve the options for the children. The issue in
Y & Hwas not as between two religions but between religion per se and the mother’s atheism. It is obvious that the fundamental basis of his Honour’s reasons was to give a child the option to choose a religion. The issue before me is as to whether or not I preserve those options for the children.
[5] [2005] FMCAfam 223.
Secondly, I was referred to a decision of Federal Magistrate Phipps in
L & O[5]. In that matter the wife sought an order prohibiting the husband taking the children of the marriage to Jehovah’s Witness meetings until they were ten years of age. The wife was Catholic although not consistently practising the religion. The husband and wife had been married in a Catholic church. Following separation the wife learned that the husband had begun taking the children to Jehovah’s Witness meetings. At the time of his Honour’s decision the children were five and four years of age. His Honour, in rejecting the application for an injunction was of the view that it was important for the children in their relationship with their father that they fully participate in his life which included his commitment to the Jehovah’s Witness religion. His Honour noted that the children would inevitably be exposed to the father’s Jehovah’s Witness beliefs regardless of their attendance at the Sunday meetings. The facts in L & O can be distinguished from those before me in that the mother in this case seeks an order permitting the children to undertake a “induction” into the Jewish religion by way of the Bar or Bat Mitzvah. The father in L & O did not seek any such orders in a prescriptive fashion. Indeed the facts and reasons for judgment in L & O might in many ways be more in accordance with the father’s position in this case being that the children should have exposure to both of their parents’ religious observations pending them making their own choice as to commitment.
Conclusion
It is clear that both these parents are devoted to their children. It is to their credit that they have been fundamentally able to agree the living arrangements for those children. The issue of religion is obviously important to each parent themselves. The mother practices the Jewish religion. It is understandable that she would like to have her children follow her into that religion and enjoy the practise of the religion with her. It is clear from the evidence that she sees the Bar or Bat Mitzvah to be a fundamental step in that process.
The issue of religion is also important for the father. He takes a more secular view and believes that the children should decide when they are sufficiently mature but importantly he advocates a fully informed decision.
I prefer the view of the father in respect of this issue. Australia is a multicultural and secular society. These children are fortunate in that they have the opportunity to directly experience the culture and traditions of the religions practised by each of their parents. Neither parent seeks a prohibition on general attendance and enjoyment of religious observances and events. Essentially, the mother wants to commit the children now. The father’s view is that such a decision should be deferred. I have no evidence before me that the deferring of a decision even at the age of 13 or 12 would prohibit a later choice to enter the Jewish religion. Indeed, this is the very point given that the children are now only 10 and eight years of age. It may be, on the father’s case, that the children convince him at the age of 13 or 12 that they are sufficiently mature to make an informed and voluntary choice. For the moment, I prefer the position of the father that such a decision not be made for them at this stage. I intend to make the injunctive order sought by the father.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of McGuire FM
Associate:
Date: 30 June 2010