MULCASTER & MULCASTER

[2018] FCCA 2946

FEDERAL CIRCUIT COURT OF AUSTRALIA

MULCASTER & MULCASTER [2018] FCCA 2946

Catchwords:
FAMILY LAW – Interim – parenting – relocation.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Morgan & Miles [2007] FamCA 1230

Applicant: MR MULCASTER

Respondent: MS MULCASTER

File Number: SYC 341 of 2017

Judgment of: Judge Henderson

Hearing date: 28 September 2018

Date of Last Submission: 28 September 2018

Delivered at: Sydney

Delivered on: 4 October 2018

REPRESENTATION

Counsel for the Applicant: Ms Dart

Solicitors for the Applicant: Douros Jackson

Counsel for the Respondent: Ms Munk

Solicitors for the Respondent: Matthews Folbigg Pty Ltd

Counsel for the Independent Children's Lawyer: Ms Robertson

Solicitors for the Independent Children's Lawyer: Robertson Solicitors

ORDERS

1. The matter is listed on 17, 18 and 19 June 2019 at 10am for Final Hearing in relation to parenting only.

2. The father is to file and serve one trial affidavit and any affidavit of any witness on which they intend to rely at hearing, together with his case outline consisting of the affidavits they will be relying on at the hearing, the orders sought and a chronology by 26 April 2019.

3. The mother is to file and serve one trial affidavit and any affidavit of any witness on which they intend to rely at hearing, together with his case outline consisting of the affidavits they will be relying on at the hearing, the orders sought and a chronology by 24 May 2019.

4. Affidavits filed after these dates cannot be relied on without leave of the Court.

5. The parties are to provide a joint tender bundle at least 3 days prior to the trial.

6. I DIRECT the Independent Children’s Lawyer to ensure that the family reporter is available to attend court on the last day of the hearing.

7. I DIRECT each party’s solicitor forward copies of the parties’ trial affidavit to the family consultant by no later than 4.00p.m. 14 days prior to hearing.

8. The mother is permitted to live with the children [X] born 2011 and [Y] born 2013 in the Location A area.

9. The mother is permitted to remove the children’s permanent residence to the Location B and enrol the children in the following:

   (a)The child [X] at School A; and

   (b)The child [Y] at Location A Kindergarten or such other day care near the mother’s residence.

   (c)Or as the parties may otherwise agree.

10. The children spend time with the father as follows:

    (a)From after school Thursday to before school Friday in week 1; and

    (b)From after school Thursday to before school Monday in week 2.

11. In relation to the 2018/2019 Christmas School holidays, the children spend time with each parent as follows:

    (a)With the mother from the cessation of school to 6pm on Christmas Eve and each alternate week thereafter; and

    (b)With the father from 6pm Christams Eve until 6pm New Years’ Eve and each alternate week thereafter.

12. In relation to mid-year school holiday periods and commencing in 2019, the children spend time with the father for the first half, from the cessation of school to 12 noon on the second Saturday and with the mother from 12 noon on the second Saturday until before school on Monday.

13. Changeover shall occur at the children’s school and day care and on a non school day or when the children are not in attendance at school, then at:

    (a)If on a Sunday evening the mother shall cause the children to be collected from the Location C or such other location as may be agreed in writing and for the purpose of this Order the parent delivering the children to the other parent shall meet inside the hotel reception and the delivering parent shall allow the other parent to collect the children and leave the hotel first;

    (b)On all other days the mother shall cause the children to be collected from the Location D and for the purpose of this Order, the parent delivering the children to the other parent shall meet inside the restaurant and the delivering parent shall allow the other parent to collect the children and to leave the restaurant first.

THE COURT NOTES THAT:

1. Although the parties have not resolved the property issues they are confident same will be resolved prior to the Final Hearing and the Final Hearing is only in relation to parenting.

IT IS NOTED that publication of this judgment under the pseudonym Mulcaster & Mulcaster is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 341 of 2017

MR MULCASTER

Applicant

And

MS MULCASTER

Respondent

REASONS FOR JUDGMENT

1. The matter of Mulcaster is an application, originally filed by the father. However, it turned into, ultimately, an application by the mother to change the children’s school and preschool from Location E, to Location A as she plans to move from the Location E area to Location A.

2. Ms Dart of Counsel represented the father, Ms Robertson the children’s lawyer, and Ms Munk represented the mother. Both the father and the Independent Children's Lawyer resist this application on an interim basis.

3. The mother’s proposal at the interim hearing was that if she was permitted to remove the children’s school to Location A, which is, effectively, what we are talking about here, because she wants to live in Location A, their time with their father, which is currently five nights a fortnight, would continue, although it would be in perhaps a different regime of time, but it would certainly continue to be five nights a fortnight. That was not the mother’s application in her response, which she filed in answer to the father’s application in a case.

4. This matter started off with a father’s application to spend time with the children on an increasing basis in the holidays, and for family therapy and the like. The mother’s initial response was that these children go from five nights a fortnight with their dad to alternate weekends. I indicated this was not an alternate weekend matter, and I would be most concerned to reduce the children’s time with their father so radically unless there was overwhelming or cogent reasons why I should do it.

5. The material I read was as follows:

   a)A family report which had been released and dated 10 May 2018, which was a most helpful document, prepared by Ms K, Family Consultant of the Court.

   b)For the mother:

   i)Affidavit filed 4 September 2018;

   ii)Amended response; and

   iii)A case outline prepared by Mrs Munk.

   c)For the father:

   i)An application in a case dated 27 July 2018;

   ii)Affidavit of the same date

   iii)A very helpful and impressive case outline by his Counsel, Ms Dart.

   d)The Independent Children's Lawyer prepared a case outline together with the minute of orders sought.

6. As I said, the father was, effectively, the moving party in relation to school holidays, and the mother’s response.

7. The father’s current time with his children is Thursday to Friday in week 1, and Thursday to Monday in week 2.

8. As I said, I had the benefit of a family report, which is unusual in an interim hearing, and I have listed the matter for a final hearing in mid-June 2019. The mother has not, as many parents do, simply up and left. She has put her desire to move to Location A on hold until the Court makes a decision. This is a child-focused and responsible attitude to have been taken by the mother.

9. Dealing with what I regard as the simple issue first - the school holidays. I see absolutely no reason why the Court would not make the holiday time orders sought by the father in his case outline. The mother sought, effectively, that the most time the children spend with their father be five nights in the school holidays, which is a similar period of time to that which they spend with him during the week. I could not quite understand why it would not go to a full alternate weeks, given that the children spend five nights a fortnight with their father during the week.

10. Holiday time is a very different arrangement of time for children with a parent, and what might regularly happen during the school week, or the school term, can be quite different on holidays, and children can certainly cope. I did not see a reason to restrict the children’s time with their father in school holidays as the mother sought I do.

11. Now, the mother’s case is that the father engaged, and continues to engage, in coercive, controlling and, at times, very aggressive behaviour. He did this during the marriage, and she said the children witnessed it. His coercion and control continues with the comments he makes to her, text messages, giving her name and address to people she has not given authority to do so, countermanding what she says in his way of dealing with the school and the children’s extracurricular activities and with her as well.

12. The parents cannot communicate. They dispute, when children are sick which parent should care for them. There is a very rights-based focus going on in this matter, and the dynamic of that is well set out in the family report. If the mother’s position, or view, of the father’s behaviour during the marriage and continuing is found to be correct by the Court, it would make his application for an equal time order virtually untenable. It would be very difficult to make such an order if this be the parental dynamic.

13. The mother’s material is replete with very concerning and poor behaviour by her husband, threatening, coercive emails, and it was also contained in her description of her marriage, and the treatment by the father of her during the marriage.

14. The father makes a complaint about the mother in terms of her not supporting his relationship with his children. Now, if I go to the family report, it really is most insightful. Paragraph 39, the report writer reports that:

    The mother alleged serious coercive, controlling, family violence from the father post-separation. This, she claims, has impacted on mental health, the children’s wellbeing, and she has had to change her residence to protect herself and the children from his alleged stalking, abusive and threatening behaviour.

15. There was an AVO taken out in 2017 and because of this the mother cannot come face-to-face with him, and she has other people collect the children because of her fears of dealing with him. It is a terrible situation for a parent to feel they are in. She says he has harassed her and threatened anyone that supports her, including her friends, the nanny and her family, and he has contacted her work for example. She says the father has told her work about the family situation, what he wants, and has made allegations to her employer that she is not allowing him to see the children.

16. At paragraph 120 of the family report, the report writer comments:

    The serious allegations made by the mother against the father appear complex, serious and concerning, and the Court may need further information.

17. This will be one matter which the final hearing will be about.

    The type of violence alleged by the mother is considered to be coercive and controlling, and have a detrimental impact on safety and wellbeing, as this can be associated with limited parenting capacity.

18. The question of whether or not there is family violence in the parental relationship is a matter for the Court’s determination, and that is precisely what the recommendations were. If the Court finds that the father perpetrated coercive, controlling, family violence, he should complete a men’s behavioural course and etcetera. That finding is a matter for me at a final hearing.

19. At paragraph 121 the report writer says:

    If the Court accepts the mother’s allegations regarding family violence, then her apparent lack of preparedness to facilitate [X] and [Y] spending any further time, which is more than the five nights a fortnight, because the father is very focused on equal time, and her consideration for a possible reduction of time could be considered protective.

20. The report writer says, “There has been poorly managed conflict between them over a period of time.” And “if the mother’s complaints are found to not have substance, then the Court would be concerned about the mother prioritising her own need for the parenting arrangement of the children that she prefers, to both parents having an equal and significant involvement in the children’s care and needs every day.”

21. This is a complex issue the Court ultimately has to determine.

22. The father is alleged to have said this directly to the report writer at paragraph 35:

    The mother is not prioritising the children’s needs over her own. He could see no reason why [X] and [Y] should not be living in an equal time parenting arrangement and sees the benefits to them. He considers that the mother is not willing to do the right thing by the children, and if she continued to fail to support his relationship with the children, he believes it might be in the interest that the children live with him.

23. The family report writer says, at paragraph 123:

    This claim does not seem consistent with the history of the parenting arrangement in which the father has enjoyed increasing amounts of time with the children since separation, resulting in five nights per fortnight with the children.

24. The youngest child is just five. This is significant and substantial time to have with your children, and to allege that the mother has not supported your time with your children is difficult for me to accept, even on an interim basis, on the facts of the matter.

25. It is also a concern that the father has this view that the mother has not supported the relationship because it is clear from the family report, paragraph 114:

    [X] and [Y] presented as playful, well-natured young children who are greatly loved and well cared for by their parents. They have a positive relationship with their mother and their father. Both sessions appeared warm, positive for [X] and [Y] who were animated and engaged in their interactions with each parent. The parents both demonstrated a capacity to engage with [X] and [Y] in a warm and child-focused way. And they had excellent relationship with their parents’ partners.

26. Children who relate like that, in this case to their father have been supported in an ongoing relationship with him by their mother for if she did not support it we would not be seeing this reaction in the children to their father, and the father’s view maybe a concern for the Court.

27. As the mother was seeking alternate weekends, perhaps the position she took was being protective to the children. I could not accept that given the time these children have spent with their father and the positives they clearly receive from spending that significant and substantial time with their father. As I said, paragraphs 114 and 115 of the family report show children who are well supported in spending time with the parent they do not primarily live with, which in this case is their father.

28. In addition, there are comments by the family consultant at paragraphs 110 and 113 of the report of the father’s behaviours and treatments of third parties. Ms L from [Y]’s preschool. There was one occasion when the father came to collect [Y] because he believed she was in her mother’s care on the day. Ms L said:

    The father did not respond well to the school, first wanting to check with the mother.

29. Ms L said the school’s relationship with the father is slowly repairing following this, and the school are mindful of their interactions with the father.

30. Again, in relation to [X], the afterschool care and the teachers at Location E were spoken to by the family consultant, Ms W. She said [X] is well cared for, loved, and well looked after by both the parents – happy. They have a generally amicable relationship with both parents. She reported a recent dispute with the father in regard to his request for information about [X]’s attendance, the time of being signed in and signed out.

31. Ms W said he told her he required this information so he could then provide this to Centrelink regarding his claim for childcare rebate. Ms W said she was not required to provide the information, and she provides it directly to the government agencies. She commented, though, since this dispute with the father about his request for information and the conflict between them over this, she is more cautious with the father.

32. At paragraphs 33 and 35 of the family report the father says he believes an equal time parenting arrangement for the children is beneficial to [X] and [Y] because it provides them with stability and predictability. He also believes it is a fair arrangement. The word “fair” does not appear in the Family Law Act.

33. Paragraph 35, “that the mother is not prioritising the children’s needs.”

34. I have referred to these comments and to support or indicate that the father may have a demanding, rights-based attitude to his children and this may support the mother’s position that it is the father’s way that must be followed and that he has great difficulty in accepting another authority figure, for example, the preschool and school teacher’s position, when it comes to his children.

35. This very poor parental relationship and the mother’s clear incapacity to even speak to the father about who should care for the children when they are sick or at any time, may be contraindicated to an equal time order, however that is a matter for a final hearing. I raise these issues as there is, clearly, in this family report independent support of the mother’s position that the father can be controlling, somewhat coercive, and he has a very negative attitude towards her and she of him.

36. As I have said, it is, in my view, foolish for a parent who is having five nights a fortnight time with his children only aged seven and five who are reported to enjoy his company with whom he has a strong, established relationship, that their mother does not support this. The mother clearly does support this relationship, because the children primarily live with her. They spend the majority of their time with her, and, if she did not want this relationship to be ongoing, there would be significant difficulties and the children would not be as well settled or relaxed in their father’s care as they clearly are.

37. The family report may, at one level, raise the father’s inability to support the children’s relationship with their mother. I do not know. That is a matter for a final hearing. However, it is clearly raised in that report, and that is possibly the opposite of what the father views his position to be, however that is another way of looking at this report. The reflective parent, the parent who can see matters through their children’s eyes, is the parent we all should strive to be. Easy to say, difficult to achieve. It is not a competition for affection, a competition for time, but what regime of time is in the children’s best interests that this Court is tasked to order.

38. Going to paragraph 82 of the family report. The mother has made significant complaint in her material that the father engages the children in the conflict and the dispute, and there is significant conflict and dispute. At paragraph 82 she talks about the children being unable to determine at which home or which parent for care for children when they are unwell, unable to agree at what time or where the children should be collected if they are unwell. This is not a child-focused approach. This is all about parents. The mother describes [X] having some difficulties, and she sees the psychologist. That she is the more anxious child, and the mother has some concerns about [X]’s emotional functioning as she may be caught up in the parental dispute.

39. Paragraph 89 of the family report is cause for concern. [Y], who was not five years of age at the time of this report, is described as such “She presented as confident, chatty and friendly – appeared comfortable with the family consultant, conversations about her and her family.” This is in marked contrast to [X]. When the family consultant began to explain to [Y] why she was talking with her, [Y] interjected and said, “If Mum does not get fifty-fifty, we have to come back. Daddy says so.” When [Y] was asked what she meant by fifty-fifty, she said, “Mum one, Daddy one”.

1. That is clearly the child being involved in this dispute by her father, not her mother, again perhaps supporting the mother’s position. [X] was an entirely different prospect: [X] was happy and cheerful, however, when asked about how she felt about the parenting arrangement she said, “I don’t know”. And asked how to express her feelings about it, she said, “I don’t know” and instead “crawled under the chair and lay down on the floor”. Clearly a child caught in the middle of the conflict.

2. The decision of where children live, the regime of time children live aged seven and five is not a matter for children. It is a matter for adults, preferably and primarily their parents. If their parents are unable to agree on these issues, that task falls to the judge. These children are under some pressure, and the preponderance of this evidence, even on an interim basis, would lead to the conclusion that it is the father who is pushing this issue, not the mother, such is his desire for him to maximise the time he spends with his children. Each of these parents are obligated to take the burden of this decision off their children and place it where it should be – on their shoulders.

3. At paragraph 125, the family consultant opines that [X] struggles to spend time away from her mother and that an equal time arrangement would impose further separation from their mother, and this would be a difficulty for [Y]. They are matters ultimately for a final hearing, but this is what the family consultant has observed, and this is no criticism of the father’s capacity, no criticism of his connection with or capacity to care for his children. It is the child’s capacity to be away from the parent who they are most closely emotionally attached, and for [X] it would appear to be her mother in this matter.

4. The other’s position is this. She and her partner, Mr G, are engaged to be married, and they are due to have a child in 2019. They currently live in the Location E area in a two-bedroom apartment, and they will soon have three children. The mother says she needs to move accommodation. In May of this year the mother secured a new job with her current employer at an increased pay. This is based at Location A, and she intends to take up that job in the new year after the birth of her child, and that will be her third child.

5. The mother will be seeking new and additional accommodation given she will have three children under the one roof, and assesses she will struggle to pay for larger accommodation in the area she currently is due to her lack of finances. She currently pays $1200 a week rent for a two-bedroom secure apartment because of her fears of the father, she says. The mother seeks to move to Location A. She intends to take up a new position after the birth of her child in January. I am not sure when that will be – if it will be three months, four months, five months, six weeks. I am unclear.

6. The mother says in her affidavit of 3 September 2018 at paragraph 77, what will be, she says, the positives for she and the children moving to Location A:

   If I am permitted to move from Location E to Location A, I anticipate a new round trip to work including delivering the children to and from school is about 15 to 20 minutes. My remuneration will be increased by $26,000 per annum. If I’m not permitted to move with my new baby, I won’t be able to take up this new role. Currently, my employment in the CBD involves me travelling in the school traffic for an hour and a half each way from Location E and preschool at Location E then to town and in the afternoon the reverse. Whilst I’m pregnant I’ve been undertaking some work from home and spending more time with the children.

7. The mother says if she moves suburbs she will be more available for the children, leave later, return home earlier. She has assessed that she can rent a home for about $800, $900 per week. That the cost of preschools is cheaper, holiday care and out of school care is cheaper. That [X] will attend School A and [Y] Location A Kindy, or a local day care, and as [Y] will be attending big school in 2019, and she and [X] can attend the same primary school at School A. No doubt they can each attend the same primary school in Location E in 2019 as well.

8. This is an interim hearing. As I have said, I am unable to make findings on contested issues of facts, however the father’s own attitude and beliefs expressed to the family consultant – that the mother is not facilitating time, she is not focusing on the needs of children, not putting them first – and his conduct to third parties at the children’s school and preschool does lend some support to the mother’s position that his style of dealing with her, is coercive and aggressive. I do not say it is, but that is what the mother finds it to be.

9. The law for interim and final hearings in any parenting matter is the same, and, although this is not a relocation in that there is not overseas or interstate travel – in fact, it is a 35 kilometre change – it is an application which will effect changes for the children. They will change school and preschool. They will change from their usual routines including the regime of time with their father, although possibly not. The mother is open to that continuing. She gave me two options.

10. Their father says he will not be able to pop into the school or their preschool, which apparently he has done on occasions, because it will be far away. He, too, works in the city. Much was made by the Independent Children's Lawyer and the father that to allow the mother and children to move now may prejudge a final hearing or cause the children to have to move back again if, in June or whenever it is I deliver my judgment, I determine there should be an equal time. Or if the father makes an application for the children to live with him and they do live with him, there would be two changes for the children. It is true the Court should try and minimise any change for children, particularly if a final hearing is coming up.

11. However, what was not even contemplated by the Independent Children's Lawyer or the father in his material anywhere that I can see is his capacity to move closer to where the children might live in Location A if, indeed, I make an order as the mother seeks at a final hearing. I did not say he has to move to Location A, but closer to Location A so that he could take up an equal time parenting arrangement, for example, if that be the order of the Court.

12. I accept, consistent with the principles enunciated in Morgan & Miles[1], from Justice Boland that in interim relocation these cases often will have far-reaching consequences for children and they therefore require a full investigation which can only occur at a final hearing. I accept that, but this relocation is not going to have a far-reaching consequence for these children. It is a move of 35 kilometres and a change of school. At paragraph 88 Boland J in Morgan & Miles[2] says this:

    It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the … 2006 Relocation report … make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the types of cases in which the child’s present stability may be extremely relevant on an interim basis.

    [1] Morgan & Miles [2007] FamCA 1230.

    [2] Above, note 1.

13. Justice Warnick supported this also. However, one must look at the facts of what has been proposed here. The move proposed by the mother is within Sydney. I accept it will have an impact upon the children. If I permit it, they will have much more travelling time when spending time with their father, who lives in the Sydney Location E area, if they are to go to school in the School A, Location A area, and that may happen four or five times a fortnight. I accept this will be a change to the school [X]’s has attended since she commenced school, however [Y] does not even attend school, and her first year of school can be at any school because it will be her first year of school. However, it would be a change for [Y] to a new preschool because she still has a term to attend preschool before big school starts in 2019.

14. As I have said, [X] is a child with some anxieties, and she has clearly been caught up in the conflict between her parents and may be a naturally anxious child in any event. If [Y]’s comments are correct and if the court finds that the father has been speaking like this to his daughter, and it must lie at his feet because [Y] says so this is poor. Stability and consistency are very important for children but so is reducing the conflict between parents because that has really heightened, it appears to me from the family report, [X]’s anxieties, and [Y] now is repeating things she says her father said to her.

15. So possibly for [X], given her anxieties, a move to a new school may heighten her anxieties, increase that. I must accept that. It appears [Y] is a more robust child. I accept that moving the children’s school and preschool now, when the consequence of my decision in June 2019 are not known, may be a disruption to the children. There may be another change. I cannot possibly say. And that may have a negative impact upon the children, and stability is certainly an important factor for children.

16. I agree the father may not have the same capacity to just drop into the child’s school or preschool as he apparently has in the past if the children are being schooled in the Location A, School A area. There will be, as I have said, significant travel for the children when they are spending time with their father five nights a fortnight which they currently do not have. They are the negatives.

17. What are the positives? The mother will be living where she wishes to live, providing, as she sees it, better financial security for her family, her three children, and she will have put a distance between herself and the father, something she raises in her material as being a concern for her, and says that is why she has this particularly secure apartment, as she believes this may assist in making it harder for the father to intervene or intrude into her life and the decisions she makes. I am not saying that happens, but that is certainly the mother’s case.

18. The children will maintain five nights a fortnight with their father because they have a very strong relationship with him, and they will maintain what has been for them a very meaningful relationship with him and his partner. The children will retain, living with their parent that they have primarily lived with all their life, who is their mother, and a mother who is living where she wishes to live and, presumably, would be in a happier and less fearful state than she says she is living nearby to where the father lives in Location E area. That must, of itself, provide stability for the children.

19. The mother’s evidence is that her capacity to provide superior accommodation for her children, being a home with a yard and the like as opposed to apartment, and reduced costs of that rental from what she has now as well as well as day care fees will improve the children’s capacity to engage in activities and have the things that currently perhaps she would like but cannot afford, and the costs for her in caring for her children will be less in the Location A area than in the Sydney CBD area.

20. Going to the Act[3]. I am not going to deal with the issue of equal shared parental responsibility. I am not sure whether it has been dealt with in prior orders. I tried to find it but I could not.

    [3] Family Law Act 1975 (Cth).

21. If not each parent has joint parental responsibility, and the father is well across all issues concerning his children. The children clearly benefit from the meaningful relationship with each of their parents. The children have been subjected to poor behaviour. Both parents agree there has been bad behaviour at changeover. [X]’s anxieties are a concern, and [Y]’s comments are a concern.

22. However these parents have never harmed their children, would never harm their children, and provide safe and loving homes for them, as do each of the parents’ partners.

23. The wishes of the children are irrelevant, and they were not expressed. [X] would not say anything in the family report, and [Y] only parroted what her father told her. I do not particularly know. In any event, this is not a decision for children to make.

24. Each of these parents have a very high capacity to parent their children to a high level. They take their responsibility seriously. They are devoted to their children. They maximise all their time with their children. They just have a different approach to life. That does not mean they do not have a capacity to parent their children socially, emotionally, and psychologically.

25. [X] clearly has some significant difficulties in being too long away from her mother and that is raised in the family report and has some emotional anxieties which could have many reasons but one of them must be the high parental conflict that she has observed herself.

26. Neither parent has a positive attitude to the other parent as a parent of the child. If the mother’s case is correct and the father is actually engaged in a campaign or war to achieve his end that is taking a poor attitude to a different level. That is a matter for a final hearing.

27. The parental relationship is toxic, and the most significant and destabilising impact upon their children is this toxic parental relationship – not what school they go to but that their parents do not get on and I cannot fix that by order. Only the parents can do that.

28. These are two good people. Both are experienced and caring parents who are totally child focused on their children and their children’s best interests in caring for them, yet their own relationship is toxic.

29. I see the balance for these children is their primary care with their mother and spending significant and substantial time with their father and minimising the conflict between their parents and their parents coming into contact with each other, and ensuring each parent is able to carry out their parenting obligation as they see it to the best of their ability.

30. The school or preschool a child attends is important, however living with your parents whose living circumstances are conducive to that parent best supporting you as a child and their parenting of you as a child is also a significant factor in the stability and care arrangement for a child. I have found to be the tipping factor in this finely balanced matter, being an interim change of the children’s school from the Sydney area to Location A. I find the best interests of the children is that the mother be permitted to live in Location A with the children, and my decision to make that order will not be a factor or predetermine any decision I make about equal time or if the father makes an application for the children to live with him.

31. It is a move of 35 kilometres in the Sydney region and involves a change of their school, not a change of their time, and there are many options available at a final hearing for the parties to consider. I will permit the mother to forthwith change the children’s school and preschool even though it is the last term of school. This is to allow her to get her children and her family into a situation before the birth of her third child and have herself in a position to be able to take up her new position, more highly paid position in Location A as soon as she is able.

32. I redact what I said about the mother moving forthwith that was an error. I am going to have a hearing in 2019, I do not have to go too far into the school holiday situation. I will make orders in accordance with the father’s order for holiday time as follows.

33. Finally the father’s time will effectively be the same now and in 2019 and the mother can move to the Location A area forthwith.

I certify that the preceding seventy two (72) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 17 October 2018