One of the most troubling issues in Family Law proceedings is the need to ensure that infants and young children are able to form strong attachments with both their parents, even though those parents no longer live together. At Gordon & Barry Lawyers we understand how emotionally sensitive this issue can be. Much has been written on this topic, both by academic researchers and in public forums by aggrieved parents. This month we are taking a look at some representative Family Law cases decided over the past five years to see what decisions the Courts are actually making in relation to overnight stays for very young children.
Barreto & Vogel [2013] FCCA 550
In this case, the court ordered that the parents have equal shared parental responsibility for their almost 2 year old child. The child was to live with the mother and spend alternate weekends with the father, as well as one night per week. The judge found that both parents were intelligent and loving, and was “quite confident that the child will be looked after responsibly and competently whether he is living with one parent or spending time with the other.” Before this judgement, the interim orders provided for the child to spend two days with each parent, resulting in frequent handovers. This was agreed to be problematic. After reviewing the evidence which supported his conclusions about both parents’ capacity to provide the child with a caring home, the judge said:
“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.”
In this case, that was determined to be the mother, a conclusion reached by the judge following consideration of all the factors required by the Family Law Act, including the Family Consultant’s report. The judge also stated that:
“I cannot help but conclude that the mother displays a greater willingness and ability than the father to facilitate and encourage the child’s relationship with his other parent.”
The decision in this case demonstrates the importance of shielding the child from any conflict while actively encouraging a strong and healthy relationship with the other parent, which was the attitude taken by the mother.
Parks & Collins [2014] FCCA 1786
In this case, the child was 4 years old. The Court chose not to order overnight time with the father and only supervised time during the day. Despite this, the judge made it clear that even though the final orders ruled against overnight stays, the father had the right to seek a variation on these orders in the future, after his relationship with his daughter had improved. The Court agreed with the Family Consultant’s conclusion that given the father’s lack of child focus, under the circumstance the child was “too young for overnight visits.” This decision was based on the Family Consultant’s observation that:
“At present [the child] does not appear to have the linguistic, cognitive or emotional competence to communicate her needs clearly or self-soothe during a lengthy visit, the mother has no confidence in the father’s parenting and the parents cannot communicate to ensure the arrangements are flexibly adaptable to the child’s needs.”
From this case we can see that the appropriateness of overnight stays depends on a range of factors, not simply the age of the child. The reliability and consistency of a parent’s conduct will be an important factor in deciding whether overnight stays are in a child’s best interests, as will the child’s resilience and stage of emotional development.
Elliot & Day [2015] FCCA 2529
In this case, the parents had separated when the two children were very young, the elder being 14 months and the younger only 7 weeks. There was a one year period during which there was no contact, followed by the introduction of regular supervised visits. There were concerns about the mother’s willingness to communicate and promote the father’s relationship with the children. On the other hand, the mother’s evidence of serious family violence was also accepted by the Court. The Family Consultant recommended that:
“Even if all child welfare concerns about the father could be banished, careful consideration would still be required about how best to extend the subject children’s time with the father in carefully staged increments. They currently are too young for weekend separations from their mother in a strange environment.”
The judge confirmed that while family violence would be an important issue to consider when determining a time frame for the father’s visits to progress from supervised to unsupervised, the primary deciding factor against overnight visits in this case was the developmental needs of the children.
Valdez & Frazier [2016] FamCA 68
The father in this case claimed that the judge should recuse himself from the case because he held a bias, common in society, against ordering young children to spend overnight time with their father. The judge dismissed the application, stating that:
“A fair minded observer would be well aware of the duty incumbent upon all judges of this Court to ensure the independent and impartial administration of justice. A fair minded observer would also understand that the outcome of any parenting matter before this Court or the Federal Circuit Court will be determined upon the specific evidence before the Court, as it pertains to the individual case, rather than by reference to the general findings of researchers or the extra-curial remarks of other judges of this Court.”
He went on to refer to the decision of McGregor & McGregor [2012] FamCAFC 69, which was overturned on appeal because the judge had relied on published research to make a decision instead of the evidence before the court regarding the best interests of the child.
Perceival & Kinsella [2017] FCCA 123
This most recent case is the polar opposite of the one we started with. In this case, the judge expressed serious concerns about the maturity and parenting capacity of both parents. The mother in particular expressed extreme hostility towards the father and had prevented the child, who was 3 years old and had special needs, from forming any relationship with his father. The judge said:
“Let it be very clearly stated that the Court finds the Mother’s attitude towards the Father appalling in the circumstances. That does not necessarily mean that her proposal to the Court is not in [the child]’s best interests. The Court makes an objective assessment in this regard and feels not in the least bit hostage to the Mother’s intransigence. If the emotional cost to [the child] of creating a relationship with his Father is ultimately so great that it outweighs the benefits to him of the relationship with his Father, then the option of no contact or communication becomes the obvious one.”
The Court’s recommendation was effectively for the father to wait until the child was independently able to speak for himself before seeking again to establish a relationship with him, pointing out that the certainty of emotional trauma that would result from forcibly exposing the child to his parents’ ongoing conflict had priority every other consideration.
CONCLUSION
As we can see from this brief overview of cases, the question of overnight stays for young children is never an easy one. The Courts insist that there is no single formula being applied, with every case being decided on its individual merits.
Here at Gordon & Barry Lawyers we are strong supporters of the rights of both parents to have a meaningful relationship with their children. Come and chat to us about your situation today.