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 Sexton1:
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 or toddler, having
regard to what we know about the research in this area, how the
court applies this research, and of course the best interests of
Different care arrangements work better for children of
different ages. Speaking in very general terms, 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.
1 Sexton, Robyn (2011) Parenting
Arrangements for the 0-4 year age group, Legal Aid NSW Family
Law Conference, Sydney, August 2011, page 1.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Sect.117 can deal with false statements and knowingly making false allegations of violence could justify a costs order.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).