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Leaving the nest

10 October 2021

Choosing where children will live immediately after a separation can be a difficult decision.

One arrangement that is becoming popular is called “nesting”, where the children remain living in the home, and the parents take turns staying with them. But is it the right decision?

The parent not currently staying in the family home lives elsewhere for a period of time, usually a week, and then swaps over with the other parent.

Nesting could be a comfortable initial or temporary solution, with less stress and disruption for the children.

A nesting arrangement may also provide a “holding pattern” for the family, while major long-term decisions are made regarding future separate accommodation with the children, and the time that the children will spend with each parent.

While nesting is a useful initial solution, it’s unlikely to provide a permanent or final arrangement for children’s care, particularly given the need for parents to finalise their finances and secure a property settlement.

The continuation of holding jointly owned or leased properties for the sake of providing a “single neutral” residence for the children runs contrary to the Family Law principle for property settlement which requires ‘financial finality’ between parties.

Nesting arrangements might also bring to the surface the parents’ inability to positively communicate with each other, or it may prove that one of the parents does not have the capacity to provide for the children’s emotional and intellectual needs.

The court assumes that it is in the best interest of the children for their parents to have equal shared parental responsibility, and that means equal responsibility for making long-term decisions about their children’s care.

In a recent case, a family began a nesting arrangement with their three children, who were aged 9, 7 and 5 at the time of the parent’s split. The children stayed living in the former matrimonial home and the parents cared for the children on an equal time basis, each parent living elsewhere during their “off” week.

However, the house was returned to the owner of the property, and the family had to vacate. The parents could not then agree about whether the children should spend equal time with each parent, or whether they should live with one parent and spend “significant and substantial” time with the other parent.

The judge was asked to consider the impact of change on the children’s circumstances.

“The children have enjoyed an equal time arrangement with both parents in the former matrimonial home,” the judge said.

“Where they live will necessarily change because of circumstances beyond this family’s control. Change will therefore be inevitable.

“The equal time parenting arrangement does not appear to have been working as well as the parties hoped.”

The court takes into account a number of matters including:

  • How far apart the parents live from one another.
  • The parents current and future capacity to implement a shared care arrangement.
  • The parent’s current and future capacity to communicate with each other and resolve difficulties that might arise in implementing that form of arrangement.
  • The impact that an arrangement of that kind would have on the children.

In this case, although the judge acknowledged that a change in living arrangements would have an impact on the children, the most significant issue was the relationship of the children with each of their parents and the parents respective capacities to care for their children, including their capacity to provide for their emotional and psychological welfare.

The court determined that the period of time in which the nesting arrangement had been in place had allowed for an examination of whether the equal time arrangement was in the children’s best interests and concluded that in the future, the children would live with one parent, and spend significant and substantial time with the other parent, instead of equal shared care.

Each family law matter is unique and needs to be addressed according to your personal circumstances. If you’d like to discuss nesting arrangements, or any other custody, or family law issues, please contact Michael Lynch Family Lawyers on: (07) 3221 4300 or email: [email protected]

Image to accompany an article 'Leaving the nest"
2021-09-22T15:50:57+10:00

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