Co-Parenting After Separation: Creating a Parenting Plan and Effective Parenting Arrangements

Before a child reaches 12 years of age, they are considered not to have sufficient maturity or understanding to decide what is in their best interests, unless they are particularly mature for their age.

While their wishes are listened to by the Court, there is unlikely to be a large amount of weight given to those wishes when determining what parenting arrangements are in the child’s best interests. The younger and more immature the child, the less weight will be given to their wishes.

From 12 years of age, a child’s wishes start to be given weight so as to have a real impact on what is considered to be in their best interests. This increases with their age until by 14 years of age they can generally make decisions for themselves, including how they spend time between parents, which school they attend, how they communicate with their non-resident parent, and so on (unless the child is particularly immature or developmentally delayed).

If parenting Orders have been made for a child who is over 14 years and starting to “vote with their feet”, parents must be careful to ensure that the choices of the child are not causing an unintended breach of the Orders. In this case, a parent should seek that the Orders be changed or dismissed.

It depends on the circumstances. There is no legal requirement that the Court must consider an equal time arrangement.

Equal time may nevertheless continue to be the arrangement of choice for parents and may still be an order imposed by the Court, either at the interim or final stage. Sometimes, equal time is not practical due to the distance between parents’ homes, parents’ work commitments and so on.

Quite often, equal time is not in the child’s best interests due to the age of the child. Where a child is under four (4) years old, equal time will generally not be in their best interests due to the time they would need to spend away from their primary attachment figure and/or the frequency of transitioning between parents.

Where a child is in primary school and has a good relationship with both parents, equal time may be in their best interests.

The factors which the Court will consider where one party wants equal time are:

• The parents’ capacity to communicate and co-parent with each other.
• The distance between the parents’ households and their proximity to the child/ren’s school.
• The prior care arrangements for the child/ren.
• The parents’ ability to address on a continuing basis the practical considerations that arise when child/ren live in two homes.
• The child/ren’s wishes and the relationships which they have with each of their parents and other significant persons living in their household, such as step-parents and other siblings.

Unless the other parent of your child/ren agrees to you relocating with them, you cannot make changes to your child/ren’s living arrangements that make it significantly more difficult for them to spend time with the other parent.

Therefore, you can relocate the child/ren’s residence to a different house, but not such a distance away from your current house that it will be significantly more difficult for the child/ren to spend time with the other parent.

In practice, this means that it is likely to be acceptable for you to move the child/ ren’s residence to the next suburb, but not more than about 30 minutes away from your current home. Please note the relevant residence is that of the child/ ren and not of you. Therefore, you can move as far away as you want, but not with the children, unless the other parent consents. If you choose to move far away from the child/ren, their time with you is likely to be limited due to the distance.

Moving a child’s residence (with your own change of residence), particularly interstate or overseas, can have the effect of reducing the child’s time with the other parent so significantly that they cannot enjoy the benefit of a meaningful relationship with that parent. Whether or not you are permitted to do so is determined in the child’s best interests and the outcome is dependent on the circumstances of each case.

Factors including a parent’s need to return to their native country for family support or increased work opportunities in the proposed new location can be circumstances that are sufficient for relocation to be approved by a Court, however, this is usually on the basis that a meaningful relationship can be continued with the other parent through additional holiday time and frequent communications.

Molly has left Perth to spend a year backpacking around the east coast of Australia. She meets Max in Sydney (Max’s hometown) and they start a relationship. Three (3) months later, Molly falls pregnant.

Molly is anxious to return to Perth where her entire family and support network resides. Molly and Max decide to relocate to Perth by the time Molly is six (6) months pregnant to establish themselves permanently in preparation for the birth.

Molly sees her Obstetrician for the last time before they depart for Perth. The Obstetrician informs Molly that she cannot fly as she is at significant risk of deep vein thrombosis, posing a risk to herself and the baby. Molly regretfully remains in Sydney until after the birth of the baby when she is cleared to travel.

Molly and Max travel to Perth when the baby is eight (8) weeks old. After a week there, Max decides that he wants to return to live in Sydney and insists that Molly and the baby return with him. Molly refuses to return with him wanting to remain with her family. The relationship breaks down and they separate.

On Max’s return to Sydney, he starts Court proceedings for Molly and the baby’s return to Sydney. Max is initially successful and Interim Orders are made for Molly to return to Sydney, however, at final hearing, Molly establishes to the Court that it would not be in the baby’s best interests to return to Sydney without her, as the baby’s primary attachment figure, and that she is unable to leave Perth due to her reliance on her support network there.

Further, the Court is satisfied that the baby will continue a meaningful relationship with Max through frequents visits by Max to Perth, which he is readily able to afford.

Grant and George have 2-year-old twins at the time of separation.

Grant works in Sales for an IT company and works long hours. He is also required to travel interstate at least twice a month in his role.

George has been the primary carer for the twins since their birth by surrogate and thereafter has taken time off work to care for them full time. He has taken care of almost all the twins’ care needs since their birth, with Grant assisting where he can when he is not at work.

On separation, Grant moves out of the home and rents a unit close by. The fathers consider that the twins are too young to spend more than one (1) night a fortnight away from George, as their primary attachment figure, however, they agree that Grant should spend as much time with the twins as his work permits.

The fathers come to an arrangement where the twins spend time with Grant from Saturday morning to Sunday afternoon each fortnight, and also during two (2) afternoons each week from 4pm to 6pm when Grant’s work permits.

The fathers agree to revisit this arrangement when the twins are four (4) years old with a view to increasing their time with Grant.

At the time of separation, Simone and Steven have three (3) children, aged 10, seven (7) and four (4) years old. The separation has mainly been due to Simone’s ongoing use of methamphetamine, which has caused Simone to experience psychotic episodes leading to her violent conduct around the children and Steven.

Steven leaves Simone, taking the children with him. He tells her she cannot spend any time with the children until she can prove that she is clean of drugs and alcohol. Simone rejects this proposal and starts Court proceedings seeking the primary care of the children.

At the time of the Court proceedings, Simone is still taking methamphetamine and smoking marijuana. Steven’s Lawyer seeks an Order that Simone produce at least three (3) months of blood test results to the Court showing that she is clean of drugs and alcohol before she spends any time with the children, which is to be firstly day time only, supervised for six (6) months with the requirement for clean drug and alcohol tests continuing through this period.

The Court grants this Order. Simone produces three (3) months of clean blood tests and commences time with the children supervised by her parents.

After a further two (2) months, Simone misses a drug test and, pursuant to the Orders, her time with the children stops. She produces a further three (3) months of clean tests and supervised time with the children recommences.

She continues her sobriety throughout the six (6) months of supervised time and the Court requirement for supervision is removed. She starts unsupervised day time visits with the children and progresses to overnight time without any relapse. She continues her sobriety and builds the children’s time with her over the next three (3) years to equal time, shared with Steven, in a week about arrangement.