When families with infants and toddlers break up, the mother is usually the primary carer of the young children. The father’s time is often limited to spending some hours weekly with their young children.
Today, many fathers desire to develop a close bond with their children from a young age and are increasingly seeking family court orders for substantial time including overnight contact with their young children. Here, “young children” refer to children below 4 years of age.
The question is what factors the family court will consider in determining whether a father ought to spend overnight time with their young children and the frequency of such overnight time.
In Australia, parenting arrangements are governed by the Family Law Act 1975 (Cth). There is nothing in this act to limit or prohibit a parent from having overnight time with their young children. Under the Family Law Act, the paramount consideration is “the best interests of the child.”
The following family court decisions illustrate the court’s approach to fathers seeking overnight time with their young children when the mother is the primary carer.
Barreto & Vogel [2013] FCCA 550
Facts: The child was almost 2 years old. Both parents were responsible and competent in their care of the child. At the time of the hearing, interim orders were in place where the child was spending overnight time with each parent every 2 days. Both parents sought orders that the child live primarily with him or her respectively.
Decision: The court found that the mother displayed a greater willingness and ability than the father to facilitate and encourage the child’s relationship with the other parent. The court decided that the child should live predominantly with the mother and spend regular time with the father including overnight time. The court ordered that the child spend alternate weekends with the father from Friday 4.00 pm to Monday 9.00 am and another overnight contact with the father on a weekday.
Reasoning: The court formed an overarching view: –
“It seems to me that social scientists appear to be united in their view that a very young child needs a stable base in order to form proper attachments and feel secure. In general, that is best facilitated by ensuring that the child lives predominantly with the person to whom he or she is primarily attached.”
The court further referred to the following statement from a report from the Australian Association for Infant Mental Health: –
“In Family Court populations, when conflict is high and parents do not cooperate over the care of their children, regular overnight stays should commence once the young child’s ability to communicate and tolerate separation is consolidated – usually from the age of three years.”
Elliot & Day [2015] FCCA 2529
Facts: The 2 children were about 2 and 3 years old at the time of the interim court hearing. When the parents separated, the father did not spend any time with the children for about a year. Thereafter, the father had limited supervised visits. In an interim application, the father sought unsupervised time, including overnight time, and submitted that the mother’s unilateral relocation of the children contrary to the court order established her lack of willingness to facilitate the children’s relationship with the father. The father admitted to some of the mother’s allegations of family violence.
Decision: The court did not grant the father overnight time with the children and made orders continuing with the supervised visits.
Reasoning: The court found that the father’s proposals lacked “child focus” as it subjected the children to “the burden of extensive travel” to spend time with him. The father failed to recognise his limited relationship with the children and that that at their developmental stage, the children were “plainly” not ready to spend more time with him.
PADULA & PADULA [2021] FCCA 71
Facts: The child was less than 2 years old and lived with the mother. The father was spending regular daytime hours with the child. The father sought overnight time seeking a gradual progression to 2 consecutive overnight stays per fortnight. The mother opposed the application, citing concerns about the child’s young age and potential emotional and psychological impact. She proposed a slower, incremental increase in time and highlighted the child’s dependence on breastfeeding.
Decision: After considering the child’s young age, developmental stage, and practical considerations, the court ordered the father to be granted overnight time, with a gradual increase from 1 overnight per fortnight to 2 consecutive overnights per fortnight.
Reasoning: The court acknowledged the mother’s concerns but found no evidence of unacceptable risks. The Court emphasised that the child would benefit from developing a meaningful relationship with the father. A reasonable progression of overnight stays was deemed appropriate and, in the child’s best interests.
Key Principles from Family Law Cases
- Best Interests of the Child:
The court prioritises the child’s best interests, considering factors such as the benefit of a meaningful relationship with both parents and the need to protect the child from harm. - Infants and young children under the age of approximately 4 years old should live predominantly with one parent
While each case turns on its own fact, child experts are of the view that due to their developmental needs, young children should live predominantly with one parent and spend time on a regular basis with the other. The family court tend to adhere to this view. This means that a parent is unlikely to obtain orders for a young child to spend time with the parents on a 50 -50 basis or for the parent who is not the primary carer to have substantial overnight time. - Child Focussed
The parenting arrangements proposed by the father must be focussed on meeting the children’s physical, intellectual and emotional needs. This calls for an understanding of the children’s developmental stage and their existing relationship with their father. The court values evidence of a parent’s active involvement in the child’s life, such as attending organised activities and school events, medical appointments, and providing daily care. - Gradual Introduction of Overnight Time:
The court often implements a phased approach, starting with daytime visits to limited overnight stays and increasing them as the child grows older and adjusts to the arrangements. - Expert Evidence:
The court may rely on expert evidence (e.g. from psychologists or child development specialists) to determine whether overnight time is appropriate for the parties’ very young children.
Preparation for court application
If you wish to apply to the family court for overnight time with your young children, you should commence preparation of evidence to support your application: –
- Your involvement in the children’s lives (e.g. daily care, medical appointments, organised children’s activities, school events).
- Your ability to provide a safe and stable environment for overnight stays.
- Your willingness to facilitate and encourage the child’s relationship with the other parent.
- Your response to any allegations of domestic violence.
- Prior to commencing court action, you should attempt negotiations or propose mediation with the other parent with the aim of reaching agreement on parenting arrangements. The outcome may be more favourable that a decision made by the court and will save time and legal costs.
- Be prepared to undergo drug and alcohol testing to allay any concerns for the child’s well-being.
The focus is on demonstrating that overnight time is in the best interests of the children and you can provide a safe, stable, and nurturing environment for the young children. The family court approaches such cases with caution, considering the developmental needs of very young children and their attachment to the primary caregiver.
Contact us
For all enquiries on property division, children matters or divorce or any other family law matter, please get in touch with the family lawyers at Robertson Hayles Lawyers at (08) 9325 1700 or by email at enquiries@robertsonhayles.com or via our contact form on our website, and we will be happy to assist you with your family law matter.
Note: The above content is only intended to provide a general overview of the topic discussed. It is not intended to be comprehensive, nor does it constitute legal advice. You should seek legal advice specific to your circumstances before acting or relying on any of the above content.