There is a lot of debate around and research into when overnight stays for 0-4 years olds should commence, or at least when this should happen with regularity. The research tells us that the 0-4 period is a very significant development stage in a child’s life, both neurologically and behaviourally. It is also the period when a child’s attachments are established.
As noted by Federal Magistrate Robyn Sexton:[1]
Children of this age group are especially vulnerable to disturbance in the development of their attachments to
their primary carers. Failure to protect the development of healthy secure attachments in a young child can have profound long term negative effects on the development of the child.
We encourage our clients to think laterally about what arrangements might work best for their infant child, having regard to what we know about the research in this area, how the court applies this research, and of course the application of family law principles to the issue.
Different care arrangements work better for children of different ages. Older children benefit from unstructured time so that the children actually enjoy quality time with each parent. Younger children benefit from more structured time so that the children feel secure.
Since the amendments in 2006 to Part VII of the Family Law Act 1975 in relation to shared parental responsibility there seems to be a move towards arguing for equal time or substantial and significant time even with infant children. That is, there seems to be a move towards fathers’ seeking more time with children at an earlier age.
The court has expressed some concern that parents are increasingly fighting for their infant child to spend more time with them, seemingly on the basis that unless they do, it may be harder to achieve more time later.
For infant children there are issues of attachment (as noted above), and the circumstances of each case must be considered. Both parents ought to allow for flexibility as the child’s needs change. The child’s circumstances, the practicalities of what is being proposed and the need to remain focussed on the needs of the child is critical.
Some experts are of the view that infants up to the age of 18 months should not spend overnight time with the other parent, the concern being so as to not compromise the infant’s attachment with the primary carer. Some experts are of the view that the ban on overnight time with the non-primary carer should even extend to up to 4 years. Other experts are of the view that infant children form multiple attachments which should be encouraged by including overnight time with each parent, even during infancy.
It is important to consider how best to go about building emotional bonds with infant children. The question becomes – is it better to spend frequent, daily time with an infant, perhaps with the occasional overnight rather than less frequent and extended time (given that days are an eternity for such young children)?
Stability and predictability for infants is important. If a child is securely attached to both parents, then overnight stays may well be appropriate.
Some other considerations might include commitment of each parent to consistent feeding and sleep routine, whether or not the mother is breast feeding, and siblings who might provide added comfort to the infant.
At all times it is the best interests of the child that is of paramount importance (section 60CA), not the parent’s interpretation of their “rights”. In addition, section 65DAA(5) requires the Court to consider “reasonable practicality” when considering communication issues, and the impact the proposed arrangement might have on the child.
We have sourced information from the relevant statutory instruments, from much legal literature for this article including from myFamilyLaw.
These matters may require tailored legal advice. Contact us for a consultation.
For legal advice please contact
Dinesh Weerakkody LLB; PDLP
Barrister & Solicitor (An Australian Legal Practitioner)
An Australian Migration Agent (0742843)
President – LawHelp Australia
Treasurer – Eastern Suburbs Law Association (ESLA) of LIV
Law Institute Migration Law Committee- Member
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