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Co-Parenting of Infants and Young Children

Following a divorce or separation, it is often difficult to reach a parenting arrangement, all the more so when it comes to co-parenting of infants and very young children. Parenting arrangements for young children require careful attention to their developmental needs, with a view to their long-term best interests.

Legal framework

Australian law does not provide specific regulations on the co-parenting of very young children. Under the Family Law Act 1975, the care of children of all ages is guided by the same rules. Until recently, these rules started from the presumption that parents should share equal parental responsibility. This presumption meant that regardless of the age of the child, it was assumed that both parents should have an equal say in important decisions about the child. These rules were recently amended to remove this presumption abd place a greater emphasis on the best interests of the individual child in parenting arrangements.

In the future, in all parenting matters before the  Federal Circuit and Family Court of Australia (or the Family Court of Western Australia), the orders will be determined based on what is in the best interests of the child. In determining what is in the best interests of a child, the court will consider the child’s physical and emotional needs, their need for stability and security, and the desirability for them to maintain a relationship with both parents.

Co-parenting of infants

Very young children have distinct care requirements. This includes frequent feedings, frequent changing, and consistent care. In Barreto & Vogel [2013], the court noted that a very young child needs “a stable base to form proper attachments and feel secure”, which is facilitated by living predominantly with the person to whom he or she is primarily attached. As such, the court must assess whether shared care is in the best interests of a young child. For this reason, it is less common for a very young child to have equal time with each parent, compared to older children.

Forgotten fathers?

In Australia, it is more common for very young children to spend most of their time with their mothers. This is sometimes related to practicalities (such as breastfeeding and access to paternity leave), but also a reflection of the fact that, in Australia, mothers are still statistically more likely to provide the bulk of physical care for young children. The court is reluctant to disrupt this pattern until the child is at least two or older, causing considerable distress and concern for fathers involved in family law matters with young children. According to research, infants cannot recall people who are absent until they are two to three years of age. For fathers who live separately, this presents the fearful prospect that they will not be able to properly bond with their children.

However, it is important to note that there is no presumption in the law that the person providing the dominant care for a young child will be the mother. As emphasised in Valdez & Frazier [2016], the outcome of any parenting matter is determined on the specific evidence of the individual case, and not based on presumptions about parenting gender roles. In cases where the father was previously the primary carer for the child, then it is more likely that he would continue to provide the bulk of physical care for the infant after separation. In addition, in cases where both parents were providing similar levels of physical care for the infant from birth, then the court is more likely to make an order of equal time between the parents.

Capacity and co-parenting

Of course, there are other considerations when it comes to making a Parenting Order. The capacity of each parent (or proposed caretaker) to provide for the child’s developmental, emotional, and psychological needs is an essential factor in deciding who should care for a child. An important inclusion in this consideration is the person’s willingness to seek support to assist with caring. This applies especially to parents with a disability, who might otherwise struggle to manage. This can also apply in circumstances when a person who has experienced family violence may otherwise have less capacity to care for a child due to unresolved trauma.

Overnight care

There is little consensus on whether infants and toddlers should stay overnight with the non-resident parent. Children are often at their most vulnerable and in need of the familiar at night. Arrangements should be guided by what is optimal for the child but limited to what is practicable in the parents’ circumstances. For instance, considerations could include the distance that the child must travel to the other residence, the accommodations for the child, whether the baby is breastfed, the child’s habitual sleep routines and the working commitments of the parents.

The consistency and reliability of a parent’s conduct is also an important factor in deciding whether overnight stays are in a child’s best interest, as well as the child’s stage of development and resilience. For instance, in Parks & Collins [2014], the court ordered that the father should not have overnight visits with his young child because he was not focused on the needs of his child, and the child was too young to communicate their own needs or self-soothe. The court did note, however, that the father could seek a variation on the order in the future, if the circumstances changed.

Navigating parenting arrangements for infants and young children under four years of age creates an additional level of stress. Please contact the family law team at Armstrong Legal on 1300 038 223 for any assistance with applying for a parenting order for a young child, or any other legal assistance.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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