Parenting Orders for Infants and Very Young Children

Agreeing on parenting arrangements is often a challenge for separated parents, especially when it involves infants or very young children. The developmental needs of a very young child complicate the usual legal and logistical considerations that arise in parenting cases. This article explores the nuanced considerations and evolving legal landscape surrounding parenting orders for infants and very young children in Australia.

Gender neutrality and parenting orders for infants

Many people still hold the view that infants and young toddlers belong with their mothers and that the mother should always be given physical “custody” of very young children. Certainly, statistically, infants and toddlers are less likely to have a father as their primary caregiver.

Research shows that in their first years of life, children develop crucial bonds with primary caregivers. The consistency and quality of this bond can be crucial for the child’s ability to explore the world with confidence and relate to other people as they grow older. In cases like Barreto & Vogel [2013], the Federal Circuit and Family Court of Australia (and the Family Court of Western Australia) has emphasised the importance of providing a stable environment for the child with their attachment figure.

However, just because it is crucial to have a consistent and nurturing bond between child and caregiver does not presuppose that this bond can only be created between a child and their mother. If the primary attachment figure for a young child is their father, then this is the bond that must be protected when making parenting arrangements. In Australia, there is no legal assumption that children of any age must primarily reside in the care of their mothers. Rather, when making parenting arrangements, each parent’s ability to meet their child’s developmental and emotional needs is evaluated. In Valdez & Frazier [2016], the court highlighted the need for case-specific evaluations rather than biased gender presumptions. The court will evaluate past caregiving responsibilities, attitudes toward parenthood, and willingness to seek out support when necessary.

When an infant or very young child has an attachment to both parents, because both parents provided consistent and nurturing care to the child since birth, then the ideal parenting arrangement is crafted to protect the bond between the child and both parents. In fact, until 2024, there was a legal presumption that both parents had equal and shared responsibility for a child. This did not mean that parents would have equal time with the child, but it certainly suggested that both parents should have a say in the important decisions regarding the rearing of their very young child. Of course, this presumption could always be rebutted, as it was in cases where family violence made it inappropriate for one parent to exercise parental authority.

Parenting orders musr prioritise the child’s best interests

With the amendments to the Family Law Act 1975, the presumption of shared and equal parental responsibility was overridden by a prioritisation of the best interests of the child. In family law disputes from 2024 onwards, the court is compelled to consider the welfare of the child as the paramount consideration. As such, it is necessary to make a careful evaluation of the child’s physical and emotional needs, as well as their stability and security, when determining parenting arrangements. The court will also consider factors such as the child’s wishes (if they are old enough to express them), their relationship with each parent, and the parents’ caregiving capacity when determining the overall best interests of the child.

These recent amendments also prioritise the safety of the child and other involved parties. This extends beyond physical safety to encompass emotional well-being, particularly in cases involving family violence or high conflict. Creating a secure and calm environment for the child is paramount in parenting arrangement decisions.

The importance of the child’s view is also central to the amendments to the Family Law Act, which underscore the child’s right to be heard in parenting matters. While it is challenging for very young children to express their preferences verbally, their non-verbal cues and interaction with each parent can still be considered when deciding parenting arrangements.

Considerations for Indigenous children

For Aboriginal and Torres Strait Islander children, preserving cultural connections is an additional consideration. When making parenting orders, the court emphasises a young child’s right to explore and appreciate their cultural heritage with family support.

Navigating co-parenting arrangements for infants and toddlers demands a comprehensive understanding of both legal principles and child development. By prioritising the child’s best interests, fostering secure attachments, and ensuring safety, parents and courts can create nurturing environments that support healthy growth and development. If you need assistance with parenting orders or legal guidance, do not hesitate to reach out to the family law team at Go To Court Legal on  1300 636 846.


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 of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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