Vickers, Hannah --- "Judicial Decision Making in Parenting Proceedings for Overnight Care of Young Children and the Impact of Social Science Research" [2017] UNSWLawJlStuS 2; (2017) UNSWLJ Student Series No 17-02

---

JUDICIAL DECISION MAKING IN PARENTING PROCEEDINGS FOR OVERNIGHT CARE OF YOUNG CHILDREN AND THE IMPACT OF SOCIAL SCIENCE RESEARCH

HANNAH VICKERS^[1]

I INTRODUCTION

A decision made in parenting proceedings can completely change the life of a child. It is therefore imperative that this decision is informed by the best information available and that the processes involved in the determination of these proceedings are transparent in nature and consistent between decision-makers. The age at which overnight time away from a primary carer is appropriate for young children is a current area of contention and uncertainty within the family law system. Social science research has been largely divided on whether decision makers should make orders for young children to spend overnight time with the non-resident parent and Australian legislation is largely silent on whether young children should be considered differently to other age groups. It is currently unclear how judicial decision-makers are making these decisions and whether age plays a key role in the determination.

The impact of overnight time away from a primary carer on children aged less than four years is a divided area of social science research. There is evidence of both benefits and detriments to a child spending overnight time with the non-resident parent. However, a recent collaboration of individuals from both sides of the debate has provided points of consensus within the arguments and encouraged a more integrated approach to this debate in the future.^[2] This study has produced a set of guidelines that could be utilised by decision-makers to help inform determinations of overnight time away from the primary carer for young children. While research has focused on the impact of overnight time away from a primary carer on young children, little research has explored how decision-makers are approaching this issue in reality.

While social science research has focused on the impacts of overnight time away from a primary carer on young children, very few studies have investigated how these decisions are made in practice. While no research has been conducted within an Australian context, a recent study performed by Woodhead et al in New Zealand investigated the way that family law judges reach decisions for children under four years of age and whether this is impacted by social science literature. ^[3] They examined 110 New Zealand family law decisions from 2010-2011 concerning parenting decisions and overnight time for children aged less than four years. They found that a common theme in decision making was that decisions were made on a case-by-case basis with consideration of a child’s individual circumstances with no clear overarching principles utilised within the case law to justify decisions. Overnight time with the non-resident parent was ordered in 54 cases despite 37 of these cases referencing the age of the child explicitly and 21 cases referring to the child’s developmental stage. An equal time arrangement, including equal overnight time, was ordered in 13 cases. Interestingly, an assessment of a child’s attachment security was made in 3 cases without any evidence provided from a psychological report or expert.

This study aimed to determine how Australian family law judges make interim decisions concerning overnight time for children under four years of age and whether this differs from decisions for children of other age groups. It was hypothesised that judges would be more likely to consider the age of the child as a key factor when the child is aged less than 4 years. It was further hypothesised that judges would use social science research within their decisions.

To provide the relevant context to explore the above issues, this article will provide a review of the application of the Family Law Act 1975 (Cth) in parenting proceedings in section 2. Section 3 will explore the relevant social science literature examining the impact of overnight time away from a primary carer for children under the age of four years. Section 4 will examine the reported authorities on the use of social science research in judicial decision-making. The methodology will be explored in section 5 and results will be presented in section 6. Finally, section 7 will include a discussion and analysis of the results as well as implications and conclusion.

II THE LEGISLATIVE FRAMEWORK

The Family Law Act 1975 (Cth) provides a legislative pathway for the determination of parenting proceedings. This pathway was introduced in 2006 following the push from interest groups advocating for increased involvement of fathers following separation. The legislative pathway also applies to interim decision-making following the case of Goode & Goode.^[4] The legislation does not provide any indication that overnight time is of particular significance or identify a younger age group as vulnerable. However, the court must consider the ‘maturity’ of the child within their decision.^[5]

The Family Law Act 1975 (Cth) states that the paramount consideration in parenting proceedings is what is in the best interests of the child.^[6] Throughout the legislative pathway, the best interests of the child must always be considered within decision-making. The determination of what is in a child’s best interest is based on two primary considerations.^[7] The first, and most important, consideration is the need to protect the child from harm. The second primary consideration is the importance of a child maintaining a meaningful relationship with each of their parents. Family law decision-makers are afforded large discretion to consider these factors as well as a number of additional factors in their determination. As part of the additional considerations that must be considered, the court is required to consider the ‘maturity’ of the child as well as a myriad of other factors such as the effect of a change in the child’s circumstances and the capacity of each parent to provide for the needs of the child.^[8] However, overnight time is not specified as a significant time period and specific age ranges are not included.

The legislative pathway for parenting proceedings under the Family Law Act 1975 (Cth) begins with a presumption of equal shared parental responsibility.^[9] This entails that each parent must be able to contribute to major long-term decisions in the child’s life and will be presumed unless there is a risk of harm to the child. If there is an order for equal shared parental responsibility, the court must then consider whether an equal time arrangement would be appropriate.^[10] If equal time is not considered reasonably practicable or is not in a child’s best interest, the court must then consider ordering substantial and significant time with the non-resident parent and whether this would be in a child’s best interests.^[11] This legislative pathway is applied in both final and interim decisions.^[12]

As a result of Goode & Goode (2006), interim hearings are conducted in a similar way to final hearings and act as a platform to determine arrangements to be made leading up to the final hearing.^[13] Interim decisions are of increasing practical importance given long waiting periods for final hearings. However, in interim proceedings decision-makers are constrained by a number of factors. Judges are required to make decisions in limited time, with limited evidence and without the ability to make determinations on contested issues of fact. The determined arrangement can be in place for significant periods of time.

Expert evidence exploring the needs of the specific child in proceedings may be available at an interim stage in the form of either a single expert report or Family Report prepared by a Family Consultant. However, it is frequently the case that Courts are asked to determine interim disputes without the benefit of such expert advice. A short Child Dispute Conference ("CDC") Memorandum written by a Family Consultant may often be available at the interim stage to provide an indication of the context and issues arising in the proceedings for the child. However this document rarely provides the Court with any analysis or opinion as to the specific measures to be adopted in a child’s best interests, since such recommendations are usually only made following a detailed review of evidence, parent-child observations and interviews, which are not conducted at the CDC stage.

In summary, the legislative framework presented in the Family Law Act 1975 (Cth) provides no indication of whether children under four years of age should spend overnight time away from their primary carer. While the Court is required to consider ‘maturity’ there is no guidance as to how this factor is to be considered in decision-making.

III GUIDANCE FROM SOCIAL SCIENCE RESEARCH

The age at which a child should begin to spend overnight time away from their primary carer following parental separation is a controversial issue within social science literature. This area of research has become highly polarized with some researchers advocating for no overnight time for children younger than four years and others arguing for immediate overnight time away from the primary carer regardless of age. This area of social science is further complicated by the fact that there is limited scientific data available as this area of research is still in development. In 2012, renowned psychologist Dr Jennifer McIntosh stated that, in terms of on-point scientific data within this field: ‘there isn’t enough to roast a marshmallow on’.^[14] In the last few years there has been some new developments and progression towards collaboration within this research.

Despite difficulties within this area of research, it is necessary to establish a clear position in relation to young children and overnight time in a family law context. In two complementary studies performed by McIntosh, Pruett and Kelly, social scientists from both sides of the debate have collaborated to form a set of guidelines for the determination of overnight time for young children.^[15] Within their work they have adopted a pragmatic approach in an attempt to provide guidance to decision-makers through some points of consensus within the social science literature.

A Arguments Discouraging Overnight Time With The Non-Resident Parent

Many social science researchers have argued that overnight time away from a primary carer can be damaging for a children younger than four years of age. A number of empirical studies have provided evidence to support this assertion.

Solomon and George (1999) conducted a longitudinal study testing the attachment relationships between a child and their primary carer when the child was 1 and 3 years of age.^[16] It was found at 3 years of age, children with greater than weekly overnight time with their non-resident parent displayed increased anxiety, anger and agitation than children in comparison groups.

McIntosh et al conducted a longitudinal study on the impact of overnight time on a number of behavioural outcomes for children aged 0-2, 2-3 and 4-5 years through an analysis of data collected by the Australian Institute of Family Studies.^[17] This study investigated behaviours such as irritability, monitoring of the primary carer and persistence in play. They found that infants aged 0-2 years who spent at least one overnight/week with the non-resident parent displayed increased irritability and less monitoring of the primary carer than groups with daytime only care. Children aged 2-3 years who spent 35-50% of overnight time with the non-resident parent displayed lower persistence in play than children in lower contact groups. No impact was found for children aged 4-5 years.

Within their study, McIntosh et al investigated behaviours that have been linked to measures of attachment security. It has been theorised that the reason that overnight time away from a primary carer can be damaging for young children is that it can damage the attachment relationship they share with the primary carer. Attachment theory postulates that children are unable to regulate their emotions at a young age and therefore need this parental figure to calm them in times of distress.^[18] An infant will remain in close proximity to this parental figure and use them as a secure base from which to explore the world, as they are able to return to this figure in times of distress. An attachment relationship can be classed as secure, insecure and disorganized.^[19] There is evidence that if a child is securely attached to a primary carer this will assist in the development of empathy, emotional regulation and increase trust in future relationships.^[20] Conversely, insecure attachment has been linked to behavioural difficulties and issues with self-image.^[21] Disorganised attachment has been linked with severe difficulties with emotional regulation, lack of behavioural control and issues with identity later in life. ^[22]

Tornello et al conducted a similar longitudinal study to McIntosh et al in the US for children aged 0-3 years through an analysis of information collected by the Fragile Families and Well-being Study.^[23] For children aged 1 year, it was found that attachment insecurity was significantly higher when infants spent at least one night/week with the non-resident parent. For children aged 3, children who spent at least 35% of overnight time with the non-resident parent showed significantly higher attachment insecurity than other groups.

While attachment theory has recognised that children can form attachments to multiple parental figures, it is argued that only one parental figure acts as a child’s primary source of comfort and fosters attachment security.^[24] It has been postulated that it is necessary for a child to have an attachment with one primary figure as this allows them to learn social information and emotional regulation from a predictable and consistent source.^[25] This is supported by neurobiological evidence that in the first two years of life a child’s right brain hemisphere is in a state of plasticity undergoes rapid development and can be influenced by environmental factors such as non-verbal social interactions.^[26] Engagement with the primary attachment figure allows the infant to learn non-verbal social cues from a consistent, predictable and comfortable source.^[27]

B Arguments Supporting Overnight Time With The Non-Resident Parent

Many researchers have argued that overnight time with the non-resident parent is necessary to foster strong relationships between a young child and their non-resident parent. In addition, there is evidence that it is beneficial for a child to spend overnight time with the non-resident while they are young. Arguments supporting overnight time with the non-resident parent for children under the age of four years are supported by practical and research based arguments within the literature.

Within their respective research, both Warshak and Ludolph have argued that overnight with the non-resident parent is necessary as work commitments and transport concerns can make it difficult for the non-resident parent to spend meaningful time with the child during the day.^[28] It is argued by these studies that overnight time allows the non-resident parent to spend more meaningful time with the child as it eliminates time pressure and transport concerns and allows the child to become settled in the different environment.^[29] It also allows the non-resident parent to become more involved in the child’s routine.^[30] Warshak also argues that no overnight time and therefore decreased involvement of the non-resident parent in the child’s early life has been shown to result in an increased chance of father disengagement in a child’s life.^[31]

In addition to practical considerations, there is some evidence that increased involvement of the non-resident parent can improve outcomes for young children both when they are young and in later life. In their study, Kennedy et al (2015) determined that increased involvement of the non-resident parent resulted in improved child-peer interactions for children aged 13-72 months (average age 33 months).^[32] It was concluded by this study that a measurement of low parental involvement of the non-resident parent on five scales resulted in higher levels of reactive aggression by a child towards their peers.^[33] In contrast, socio-economic status and an assessment of primary carer attachment did not significantly predict quality of child-peer interactions.

There is evidence to suggest overnight time with the non-resident parent for young children can lead to benefits for the child in later life. In their study, Pruett et al determined that girls aged 4-6 who had spent overnight time with their non-resident parent in previous years demonstrated improved developmental outcomes compared to girls who had not spent overnight time with non-resident parent.^[34] Interestingly, this effect was not found in boys and was not found in children aged 2-3 years. This suggests that some young children can benefit from overnight time with the non-resident parent but that this benefit may only surface as the child grows older. Tornello et al (2013) obtained similar results where it was found that children aged 5 years performed better on child adjustment measures such as ability to regulate aggression and incidence of problem internalization if they had spent overnight time with the non-resident parent when they were 3 years of age.^[35]

Lamb and Kelly have argued that most children older than two years should be able to tolerate two consecutive days of overnight time with each parent without distress.^[36] They argue that young children need to spend consistent time with each parent as they do not have an understanding of time and cannot understand why parents are no longer present in their lives.

Studies have also criticized the research methodology of previous empirical studies discouraging overnight time with the non-resident parent. Cashmore and Parkinson have critiqued the studies of Solomon et al and McIntosh et al and concluded that both have methodological flaws.^[37] It is argued that Solomon et al was problematic as many measures relied on the mother’s report only and many children within the sample had never lived with both parents.^[38] Similarly, Cashmore and Parkinson argue that the study undertaken by McIntosh et al is methodologically flawed as the statistics are based on information provided by the primary carer only.^[39] Warshak has also criticized this article as no record is made of the relationship the child spent with the non-resident parent prior to separation.^[40] The study conducted by Tornello et al has also been criticized as it was conducted in a low socio-economic area and was based on reports of the primary carer.^[41]

C A Collaborative Approach

In 2014 McIntosh, Pruett and Kelly developed a set of guidelines that can be used to aid decision makers in making decisions concerning overnight time for children younger than four years.^[42] This work represented a collaboration of theorists from both sides of the debate. The set of guidelines is hierarchical with safety positioned as the most important consideration followed by additional considerations of varying levels of importance. The guide does not support overnight time with the non-resident parent if the child is younger than 18 months but supports some overnight time after this time if certain conditions are met. Factors include but are not limited to the relationship the child had with each parent in the six months prior to separation, the co-parental relationship, the presence of older siblings and the temperament of the child.^[43] The guideline aims to achieve of balance of a sufficient amount of overnight time to foster the relationship with the non-resident parent without risking child wellbeing outcomes by being away from the primary carer.

IV JUDICIAL AUTHORITY ON THE USE OF SOCIAL SCIENCE RESEARCH IN PARENTING PROCEEDINGS

In the past attempts have been made to incorporate social science research into decision making in many aspects of parenting proceedings. This incorporation is understandable given that social science research appears to provide a potential for an objective assessment of the determination of a child’s best interests. However, the Court has adopted a conservative approach to the admissibility of this evidence in recent years.

A Social Science Research In Parenting Proceedings

Early decisions following the 2006 amendments appeared to endorse the use of social science research in decisions. It was held in Murphy [2007] that: ‘judges are relatively free to consult accredited writings and make their own extrinsic enquiries from non-legal materials in forming and applying their own views on social issues’. ^[44] This position was affirmed in the decision of McCall v Clark [2009] where the trial judge was criticized for not considering research on attachment theory in his judgment concerning parenting proceedings for a 3-year-old child. ^[45] It was held by the Full Court that the trial judge should have informed the parties that social science research on attachment theory would be relevant to the proceedings.

More recent case law has employed a more conservative approach to the use of social science research. In Salvati & Donato [2010] and SCVG & KLD [2011], Federal Magistrate Altobelli (as he then was) considered social science research within his respective decisions. ^[46] He held in each case that the research was used as ‘background material, and it assists in understanding the expert evidence provided by the Family Consultant’. ^[47] The case of Salvati v Donato [2010] was appealed on a different ground, however the Full Court commented on the inclusion of social science research within the decision. It was stated that:

We consider that it was inappropriate for the Federal Magistrate to refer to the journal articles and for them to inform his decision in circumstances where...the parties had not been given the opportunity to make submissions in relation to them.^[48]

In SCVG & KLD [2011] the references made to specific social science research were the grounds for the appeal. ^[49] The appeal was ultimately unsuccessful as it was determined that the decision was based on factual information and the social science research was not a part of the decision. However, in obiter, the Full Court stated that the material should not have been referred to in the judgment.

The Court’s disapproval of the use of social science research was strengthened in the decision of the Full Court in McGregor [2012]. ^[50] In this case the Full Court held that social science research should not be included in judicial decision-making as it is not part of the evidence of the case available to the parties and goes against the principle of natural justice. It was held that parties should have the opportunity to verify and question this evidence in Court and that it does not fall within the exceptions set out by s144 of the Evidence Act 1995 (Cth). Under s144 of the Evidence Act 1995 (Cth) it is possible for a judge to reference information that is common knowledge shared by the Judge and the community. In upholding the appeal, the Court held that:

If an issue in proceedings is controversial, it is almost inevitable that there will be differing credible expert opinions in relation to it and demonstrably it would not fall within the operation of s144.^[51]

B The Dangers Of Using Social Science Research In Judicial Decisions

Cashmore and Parkinson have provided a detailed analysis of the dangers associated with reliance on social science literature in judicial decision-making. ^[52] They have argued that in order for an individual to gain an appropriate understanding of social science research they need to be able to assess the reliability and validity of the research methodology and a sound understanding of statistical and practical significance. They state that in order to completely understand a research study it is necessary to appreciate their flaws and limitations. If lawyers and decision-makers do not have this statistical training this can be problematic. In addition, it is difficult to use individual social science articles as justification for a decision as scientific principles are usually grounded in a large body of research and rarely emerge from individual studies. McIntosh has warned of the dangers of applying social science literature concerning attachment theory to judicial decision-making, as there is no universally accepted default position within this research, which is currently in its infancy. ^[53]

It is unclear whether an approved set of guidelines similar to those constructed by McIntosh, Pruett and Kelly would be accepted as an aid in the determination of parenting proceedings. Given that this guide would need to be approved by policy makers and can be scrutinised by researchers, many of the dangers identified may be resolved. While no clear default position is available within the research, a decision still needs to be made in parenting proceedings and without guidance the decision making process lacks transparency and may be inconsistent.

V METHODOLOGY

This study aimed to examine whether the age of the child has an impact on interim judicial determinations of whether children should spend overnight time away from their primary carer, and further to determine whether reference is made to social science research when justifying decisions relating to overnight time away from a primary carer for young children. An analysis was conducted through a comparison of interim decisions for children aged 0-3 years and 4-7 years. It was hypothesised that the age of the child would be included as an important consideration for the denial of overnight time with the non-resident parent if the child is 0-3 years of age. It was further hypothesised that social science research would be utilised within case law to justify these decisions.

A Data set

This study examined all interim decisions made from 1 December 2015 to 30 April 2016 in the Family Court of Australia and the Federal Circuit Court of Australia where the non-resident parent was seeking overnight time with a child aged between 0-7 years. Interim decisions that considered Rice & Asplund arguments for varying Orders were excluded as they contained additional considerations and a higher threshold test for the determination of current Orders. ^[54] An initial search on the LexisNexis Casebase website using the search term ‘child’ produced 866 cases identified for the 5-month period, of which 29 met the selection criteria. Cases were divided into the age groups of 0-3 and 4-7 years based on the age of the youngest child in the proceedings. All cases where no time was ordered with the non-resident parent due to a risk of harm to the child were excluded, as safety was the only consideration. A list of these excluded cases can be found in the Appendix. The final data set consisted of 21 cases with 8 in the younger age group and 13 in the older age group. A list of cases is included in the appendix.

B Data analysis

This study employed a thematic analysis to identify common factors considered in judicial determinations of overnight time with the non-resident parent. After review of the cases contained within the dataset, common themes within the different age groups were extrapolated and explored.

VI RESULTS AND ANALYSIS

Of the 21 cases included in this study, overnight time with a non-resident parent was ordered in 33% (n=3) of cases for children aged 0-3 years,^[55] and was ordered in 77% of cases (n=10) for children aged 4-7 years. ^[56]

In 4 cases in the older age group (n=4; 30%) and 1 case in the younger age group (n=1, 13%), the Court had the benefit of expert opinion on the issue of overnight time in the form of either an expert report or Family Report. Whilst the Court in a number of cases in both the older (n=2, 15%) and younger (n=4, 50%) age groups had received a Child Dispute Memorandum, the recommendations contained in those memoranda were of a general nature and lacked any specific recommendations as to overnight time. In more than one case, the memorandum recommended an increase in the father’s time with the children, but in none of those cases did the memorandum address the specific issue of overnight time.

A number of key themes were identified through examination of the data set. However it must be recognised that no test of statistical significance was conducted in this study.

A No Direct Reference to Social Science Research

In all 21 interim decisions reviewed, there was no explicit reference made to specific social science research. However, as will be discussed below, it appeared that a number of judgments made reference to assumptions regarding appropriate ages for the commencement of overnight time, which may have been based upon social science literature.

B The Age of the Child

Analysis of the data set revealed that the age of a child was a key theme within judicial determinations of overnight time with the non-resident parent within the 0-3 age group. Conversely, the absence of this consideration was a key theme in cases where the child was aged 4-7 years.

A Younger Age Group

In 100% of cases (n =8) in the younger age group, age was considered a factor in the determination of overnight time with the non-resident parent. In 88% of cases (n = 7), the age of the child was considered a justification for either no overnight time or a reduction in overnight time if the child was already spending overnight time with the non-resident parent. For example, in Newman & Sables [2016] it was held that a 3-year-old child should spend substantial daytime with the non-resident parent but should not commence overnight time, as ‘this little boy is too young’.^[57] A further example is Joyce & Bayden [2016] where it was determined that a 20 month old child required large amounts of day time with the non-resident parent but no overnight time by reason of her age.^[58] However, it was further determined based on expert evidence that the child should begin overnight time after her second birthday.

In Kirkpatrick & Higgins [2015], the age of the child was considered a factor in favour of increasing overnight time with the non-resident parent.^[59] This case was highly complex as there were safety concerns in relation to both parents and the 2-year-old child had been removed from his primary caregiver. A week about arrangement was ordered in this case based on the justification that:

This is a child of tender years. He is two years and just over two months old. He needs to be spending regular time with each parent...regular time with parents is necessary so that he can build up a proper attachment relationship...^[60]

While this case resulted in an equal time arrangement, it was clear that the decision was made in an attempt to mitigate the risks involved with both parents and ensure that the child was able to spend time with his primary carer. Despite the risks, the week about arrangement is not supported by most social science research within this field.

In 50% of cases (n = 4) in the young age group, specific age markers were referenced within the judgment for when overnight time is appropriate for young children. In Sander & Sander [2016], no overnight time with the non-resident parent was ordered in the case of a 3 year old child, the Court stating, without reference to supporting evidence, that:

...it would be preferable to wait until [the child] has reached her fourth birthday before overnight time with the father starts.^[61]

Similarly, in Seever & Sutor [2016] a 4 year age mark was referenced as the age when overnight time should commence without further justification.^[62] In this case the mother of a 3-year-old child in a week-about arrangement was seeking a reduction in the child’s overnight time with the father. In granting a reduction in overnight time the Court stated:

Had the parties sought legal advice at the time, it is likely that they would have been informed that equal time shared care arrangements on a week about basis are seldom in the best interests of children under the age of four years, as young children need time to develop an attachment to a primary care giver and then to build up an attachment with the other parent.^[63]

Reference was also made to an arbitrary age marker for the beginning of overnight time in Reid & Douglas [2016] where it was determined that a 15 month old child should only spend day time with the non-resident parent.^[64] The judge commented that:

As with many cases involving children under three years of age, the significant issue is overnight time. Although I appreciate I do not have any expert evidence at this stage, there is great controversy about the viability of overnight time for children which occurs away from a child’s primary carer in children who are under three years of age...It, of course, being the case in generic terms that children – and I emphasise generic terms – are likely to be more anxious at night time, particularly if they are separated from the person who has become their primary carer and, therefore, their primary source of emotional support.^[65]

Unusually, in Joyce & Bayden [2016] the Court had the benefit of advice from two experts as to when overnight time should commence for a 20-month-old child.^[66] One expert in this case:

... thought that as a general rule, children were ready to spend overnight time with the non-resident parent at the age of between 20 and 24 months^[67]

This assertion was not accepted by the second expert who advocated for a more cautious approach to the introduction of overnight time. The judge in this case adopted the more cautious approach and ordered that the child not transition to overnight time until a few months after her second birthday and ordered large periods of daytime contact.

B Older Age Group

In 54% of cases where the child was aged 4-7 no reference was made to the age of the child within the decision (n = 7). In the remaining 46% (n=6) of cases within this age group, reference was made to age in order to justify an introduction or increase in overnight time. For example, in Coulter & Coulter [2015] it was held that ‘given the age of the children there is no reason why the holidays should not be shared on a week about basis’.^[68] Similarly in Tallant & Kelsey [2015] it was held in the case of a 4-year-old child that:

...despite the circumstances and the age of the children...it is not a matter that the best interests of the children require a slow introduction.^[69]

In Lee & Zaplan [2015] it was stated in the case of a 5-year-old child that: ‘given [the child]’s age, in my view, this indicates that she needs to spend more...[time] in her father’s care’.^[70] However due to other factors such as the father’s alcohol use, this case resulted in large periods of day contact and no overnight time.

C Child’s relationship with the non-resident parent

1 Younger Age Group

The relationship the child shared with the non-resident parent in the past was considered in 88% (n=7) of cases for children in the 0-3 age group. For example, in Sander & Sander [2016] it was held in the case of a 3-year-old child that:

It does not seem appropriate at this stage that there should be overnight time between the children and their father, especially as they have not spent more than four hours at a time with him...^[71]

Further, in Newman & Sables [2016] no overnight time was awarded in the case of a 3-year-old due to the ‘need for the establishment of more time with his father’.^[72]

2 Older Age Group

The relationship shared with the non-resident parent and previous time spent together was referenced in 54% of cases (n=7). It was determined in 4 of these cases that the non-resident parents had undertaken significant previous care of the child. For example, in Madden & Callanan [2016] it was considered in the case of children aged 5 and 7 that:

These children unquestionably had a meaningful relationship with their father until his time and communication with them was restricted^[73]

As a result, overnight time was ordered for 2 nights/week with the non-resident parent. Similarly, in Hill & Anor & Johnston [2016] overnight time was ordered for a 5-year-old child following consideration that:

...the father has spent time consistently with [the child] on a supervised basis over quite some period now, and that has gone well.^[74]

However this decision was also influenced by recommendations of time with the non-resident parent contained within a family report.

Conversely, in 3 of the cases within this sample, the previous absence of the non-resident parent from the child’s care was considered relevant to judicial decision-making. For example, in Tallant & Kelsey [2015] it was considered that the father had not spent any time with the children in 14 months.^[75] In this case a transitional approach to overnight care was ordered. However this approach was also influenced by the recommendations of a Family Report. Similarly, in Lee & Zaplan [2015], a gradual progression to overnight time was ordered as the father had not been involved in the care of the child for the previous 6 months.^[76] In Atkinson & Atkinson [2016] it was considered that the father had spent limited time with the two 7-year-old children since 2013 due to his professional commitments as a fly-in-fly-out worker.^[77] No overnight time was ordered in this case.

D Impact on Parenting Capacity of the Primary Carer

1 Younger Age Group

For children younger than 4 years, 25% of cases (n=2) considered the impact of ordering overnight time on the parenting capacity of the resident parent.

For example in Joyce & Bayden [2016] it was found in the case of a 20-month-old child that ‘In my view, the less anxious X’s primary carer is, the less anxious X is likely to be’.^[78]

2 Older Age Group

The impact of overnight time with the non-resident parent on the parenting capacity of the primary carer was considered in 4 out of 13 cases in the older age group. In Zema v Kristo [2015] the court considered that a gradual transition to overnight time with the father would help to alleviate the mother’s anxiety of separation from a 4-year-old child.^[79] Similarly, it was recognised in Lee v Zaplan [2015] in the case of a 5 year old child that given that the mother:

...has been [the child]’s predominant carer, certainly since the parties separated, her anxiety, in this regard, may have implications for her capacity to parent [the child] to the full extent of her abilities.^[80]

E Increasing Future Parental Involvement in a Child’s Activities

No cases for children in the young age group of 0-3 years considered the facilitation of parental involvement in a child’s activities as supporting overnight time with the non-resident parent. However, in the older age group, it was held in 3 cases out of 13 that overnight time for the non-resident parent was beneficial as it increased parental involvement in the life of the child. For example, it was held in Zema & Kristo [2015] that ‘The husband would wish to have some involvement with the child’s kindergarten. That does not seem unreasonable’.^[81] This case determined that overnight time allowed the father to drop the child at his kindergarten class and collect him from swimming lessons during the week. Similarly, it was held in Fong & Lam [2016] in relation to a 6-year-old child that if the father:

...collects the children from after school on Tuesdays and returns the children to school on Wednesdays, that means that the children will experience him being interested in their schooling and provides the father with the opportunity to talk to their teachers if they are there or see their school by taking them to and from school.^[82]

F Protective Factor of Siblings

In the 0-3 age group, only Fort & McIntosh [2016] made any reference to the presence of siblings.^[83] In this case the siblings had been separated in the past and it was stated that:

...the children need to be reunited because the children provide one another with a source of support when they feel like the adults around them are not always providing that support.^[84]

No cases in either age group considered the presence of siblings when determining whether to order overnight time with the non-resident parent.

VII DISCUSSION AND ANALYSIS

The results of this study provide some insight into the principal factors considered by judicial decision-makers in the determination of whether a young child should spend overnight time away from their primary carer. Overall, the results suggest that judges are more cautious in ordering overnight time for children under the age of 4 years. While the small sample size studied limits the broader significance of this study’s findings, the thematic analysis suggests that the age of the child does impact decision making for overnight time with non-resident parent.

Two hypotheses were presented in this study. Firstly, that the age of the child would be included as an important consideration for the denial of overnight time with the non-resident parent when the child is 0-3 years of age. Secondly, that social science research would be utilised within case law to justify these decisions.

The results of this study support the first hypothesis that the age of the child will be included as an important consideration for the denial of overnight time with the non-resident parent if the child is 0-3 years of age. The age of the child was always referenced within the decision if the child was aged 0-3 years and in many cases acted as a barrier to overnight time with the non-resident parent. Conversely, in the older age group, the child’s age was seldom considered. This suggests that the court approaches decisions of overnight time for children aged 0-3 differently than other age groups.

There was also evidence within the results of this study that decision-makers are considering particular factors differently for younger and older children. A small number of cases in the 4-7 age group ordered overnight time to directly facilitate the parental involvement of the non-resident parent. This was not found in the younger age group. It is possible that this discrepancy is due to the commencement of school and other activities in the older age group. Once children commence school and other after-school activities it will be more difficult for parents to schedule clear time to spend with them due to this busy schedule. Additionally, as the child’s life becomes more complex it is necessary for parents to be more involved in order to be a part of all aspects of a child’s life. Conversely, the impact of family violence, parental conflict, impact on parenting capacity and previous time spent with the child were considered comparably in both age groups.

The results of this study may support the second hypothesis as while social science research was not directly referred to in any of the cases contained within the data set, particular age cut-off points of 3 and 4 years of age were stated in three decisions in the younger age group in the absence of expert evidence. As these cut-off points have previously been commonly utilised within the social science literature, it is possible that Judges have been influenced by their awareness of this literature. This indirect quotation of social science literature is similar to results obtained by Woodhead et al where it was found in three cases that Judges had made assessments of attachment security.^[85] Whilst it is also possible that these statements reflect a general community value, decision-makers may be influenced by routine exposure to expert evidence provided in the cases they preside over as well as their knowledge of the literature.

Another issue identified by the study is the possibility that different experts are adopting different positions in relation to the interpretation and application of the available social science research on the issue of overnight time. One case, Joyce & Bayden [2016], involved evidence from two experts on whether overnight time should commence for a 20-month-old child.^[86] The first witness, a psychologist specializing in family issues, stated ‘he thought that as a general rule, children were ready to spend overnight time with the non-resident parent at the age of between 20 and 24 months.’ The second witness took a more cautious approach to when overnight time should commence and stated that there was no particular age at which it should begin. The first witness argued that this approach was not based on current research about child development. This case demonstrates a danger within the family law system of a lack of consistency in professional opinions and utilization of social science research. The impact of social science research on the advice of family consultants and expert witnesses was not the topic of this research and would benefit from further research in the future.

Interestingly, only one case considered the presence of siblings in the determination of overnight time away from a primary carer. The presence of an older sibling is considered a protective factor in the guidelines developed by McIntosh, Pruett and Kelly for the beginning of overnight time away from a primary carer.^[87] In the study conducted by Woodhead et al, the presence of siblings was found to significantly increase the chance of overnight time being ordered with the non-resident parent.^[88] The creation of a guideline for family law judges could draw their attention to factors such as the presence of older siblings.

VIII CONCLUSION

In conclusion, the results of this study support the assertion that the age of the child is an important consideration for the denial of overnight time with the non-resident parent if the child is younger than four years of age. However, reference to particular ages and approaches to overnight time for young children are not always consistent. Whilst social science research is no longer explicitly cited by judges to justify these decisions, these decisions nevertheless reference concepts often seen in the social science literature. This suggests that social science research does impact decision making in determinations of overnight time.

A Limitations

The primary limitation of this study was the small number of cases within the data set and the lack of a statistical analysis to establish significance. While this study can provide insight into factors considered in the determination of overnight time with the non-resident parent, further research is necessary to determine if the trends shown within this study can be generalised to all decision-making within this area of family law.

B Concluding comments

The cautious and inconsistent approach adopted by Judges for children less than four years of age has large implications for the field of family law. It is critical that family law judges should approach the issue of overnight time for young children in a manner that is both transparent and consistent.

While this was a small study it was intended to act as a foundation for future research to explore how decision-makers approach overnight time for young children and whether a set of guidelines can be implemented to increase consistency and transparency in this area of family law. It is imperative that social science follows the trend of collaboration and continues to develop pragmatic guidelines based on the best information available to promote the best interests of the child.

There would be many advantages to the Court formally adopting a clear set of guidelines, similar to that proposed by McIntosh, Pruett and Kelly. These guidelines would retain judicial discretion, whilst increasing the transparency of family law proceedings and assisting parents and family lawyers to understand and most importantly to anticipate the outcome of proceedings.

Appendix

List of cases from analysis

Excluded cases due to no time granted:

• Abulafia & Geary [2016] FAMCA 113

• Balchin & Algar [2015] FCCA 3547

• Coleman & Patterson [2016] FAMCA 58

• Farrelly & East [2016] FCCA 24

• Garey & Garey [2015] FAMCA 1192

• Linton & Warne [2016] FAMCA 109

• Parsons & Chou [2016] FamCA 3

• Ridley & Ridley [2015] FAMCA 1122

Cases for children aged 0-3:

• Fort & McIntosh [2016] FCCA 663

• Joyce & Bayden [2016] FCCA 804

• Kirkpatrick & Higgins [2015] FCCA 3207

• Krish & Shah [2016] FAMCA 116

• Newman & Sables [2016] FCCA 722

• Reid & Douglas [2016] FCCA 821

• Sander & Sander [2016] FCCA 568

• Seever & Sutor [2015] FCCA 3500

Cases for children aged 4-7:

• Atkinson & Atkinson [2016] FCCA 628

• Costello & Costello [2015] FAMCA 1114

• Coulter & Coulter [2015] FAMCA 1162

• Cunningham & Riley [2016] FCCA 21

• Duclos & Duclos [2015] FAMCA 1100

• Fong & Lam [2016] FCCA 448

• Geary & Maddigan [2015] FAMCA 1205

• Hill & Anor & Johnston [2016] FCCA 713

• Lee & Zaplan [2015] FCCA 3258

• Madden & Callanan [2016] FCCA 59

• Pannell & Pannell [2015] FCCA 3194

• Tallant & Kelsey [2015] FAMCA 1190

• Zema & Kristo [2015] FAMCA 1109

---

^[1] Study supervised by Ananda Hall and Noam Peleg at the University of New South Wales

^[2] Marsha Pruett, Jennifer McIntosh and Joan Kelly, ‘Parental Separation and Overnight Care of Young Children, Part 1: Consensus through Theoretical and Empirical Integration’ (2014) 52 Family Court Review 240; Jennifer McIntosh, Marsha Kline Pruett and Joan B Kelly, ‘Parental Separation and Overnight Care of Young Children Part II: Putting Theory into Practice’ (2014), 52 Family Court Review 2.

^[3] Yvonne Woodhead, Dianne Cameron, Suzanne Blackwell and Frederick Seymour, ‘Family Court Judges’ Decisions Regarding Post-separation Care Arrangements for Young Children’ (2015) 22 Psychiatry, Psychology and Law 520.

^[4] Goode & Goode [2006] FamCA 1346.

^[5] Family Law Act 1975 (Cth) s60CC(3)(g).

^[6] Family Law Act 1975 (Cth) s60CA.

^[7] Family Law Act 1975 (Cth) s60CC(2).

^[8] Family Law Act 1975 (Cth) s60CC(3)(g).

^[9] Family Law Act 1975 (Cth) s61DA.

^[10] Family Law Act 1975 (Cth) s65DAA.

^[11] Ibid.

^[12] Goode & Goode [2006] FamCA 1346.

^[13] Ibid.

^[14] Jennifer McIntosh, ‘Achieving Attachment Security for Infants in a Family Law Context’ (paper presented at AFCC 49^th Annual Conference, Chicago, 20 August 2012).

^[15] Marsha Pruett, Jennifer McIntosh and Joan Kelly, ‘Parental Separation and Overnight Care of Young Children, Part 1: Consensus through Theoretical and Empirical Integration’ (2014) 52 Family Court Review 240; Jennifer McIntosh, Marsha Kline Pruett and Joan B Kelly, ‘Parental Separation and Overnight Care of Young Children Part II: Putting Theory into Practice’ (2014), 52 Family Court Review 2.

^[16] Judith Solomon and Carol George, ‘The Development of Attachment in Divorced Families. Effects of Overnight Visitation, Parent and Couple Variables’ (1999) 1 Attachment and Human Development 33.

^[17] Jennifer McIntosh, Bruce Smyth, Margaret Kelaher, Yvonne Wells and Caroline Long, Post-separation Parenting Arrangements and Developmental Outcomes for Infants and Children, Report to the Australian Government Attorney-General’s Department, Attorney-General’s Department, Canberra, 2010.

^[18] Inge Bretherton, ‘The Origins of Attachment Theory: John Bowlby and Mary Ainsworth’ (1992) 28 Developmental Psychology 759; Mary Main, Erik Hesse and Siegfried Hesse, ‘Attachment Theory and Research: Overview with Suggested Applications to Child Custody’ (2011) 49 Family Court Review 426.

^[19] Mokhtar Malekpour, ‘Effects of Attachment on Early and Later Development’ (2007) 53 The British Journal of Developmental Disabilities 81.

^[20] Ibid.

^[21] Ibid.

^[22] Ibid.

^[23] Samantha Tornello, Robert Emery, Jenna Rowen, Daniel Potter, Bailey Ocker and Yishan Xu, ‘Overnight Custody Arrangements, Attachment, and Adjustment Among Very Young Children’ (2013) 75 Journal of Marriage and Family 871.

^[24] Allan Schore, ‘Attachment, Affect Regulation and the Developing Right Brain: Linking Developmental Neuroscience to Pediatrics’ (2005) 26 Pediatrics In Review 204.

^[25] Ibid.

^[26] Ibid.

^[27] Ibid.

^[28] Richard Warshak, ‘Social Science and Parenting Plans for Young Children: A Consensus Report’ (2014) 20 Psychology, Public Policy and Law 46; Pamela Ludolph, ‘The Special Issue on Attachment: Overreaching Theory and Data’ (2012) 50 Family Court Review 486.

^[29] Ibid.

^[30] Ibid.

^[31] Richard Warshak, ‘Social Science and Parenting Plans for Young Children: A Consensus Report’ (2014) 20 Psychology, Public Policy and Law 46.

^[32] Mark Kennedy, Lucy Betts, Thomas Dunn, Edmund Sonuga-Barke and Jean Underwood, ‘Applying Pleck’s Model of Paternal Involvement to the Study of Preschool Attachment Quality: a Proof of Concept Study’ (2015) 185 Early Child Development and Care 601.

^[33] Elements developed by: H Pleck, ‘Paternal Involvement: Revised Conceptualization and Theoretical Linkages with Child Outcomes’ in M Lamb (ed), The Role of the Father in Child Development (5^th edition, 2010, Wiley).

^[34] Marsha Pruett, Rachel Ebling and Glendessa Insabella, ‘Critical Aspects of Parenting Plans for Young Children: Interjecting Data into the Debate about Overnights’ (2004) 42 Family Court Review 39.

^[35] Tornello et al, above n 23.

^[36] Joan B Kelly and Michael E Lamb, ‘Using Child Development Research to make Appropriate Custody and Access Decisions for Young Children’ (2000) 38 Family and Conciliation Courts Review 297.

^[37] Judy Cashmore and Patrick Parkinson, ‘Parenting Arrangements for Young Children: Messages from Research’ (2011) 25 Australian Journal of Family Law 236.

^[38] Ibid.

^[39] Ibid.

^[40] Warshak et al, above n 31.

^[41] Ibid.

^[42] Jennifer McIntosh, Marsha Kline Pruett and Joan B Kelly, ‘Parental Separation and Overnight Care of Young Children Part II: Putting Theory into Practice’ (2014), 52 Family Court Review 2.

^[43] Ibid.

^[44] Murphy & Murphy [2007] FamCA 795 [341].

^[45] McCall & Clark [2009] FamCAFC 92.

^[46] Salvati & Donato (No 2) [2009] FMCAfam 883; SCVG & SKLD [2011] FamCAFC 100

^[47] Ibid.

^[48] Salvati & Donato (No 2) [2009] FMCAfam 883 [113].

^[49] SCVG & SKLD [2011] FamCAFC 100.

^[50] McGregor & McGregor [2012] FamCAFC 69.

^[51] Ibid [71].

^[52] Judith Cashmore and Patrick Parkinson, ‘The Use and Abuse of Social Science Research Evidence in Children’s Cases’ (2014) 20 Psychology, Public Policy and Law, 239.

^[53] Jennifer McIntosh, The care of very young children after parental separation (2014) InPsych <http://www.psychology.org.au/inpsych/2014/august/mcintosh/> .

^[54] Rice v Asplund [1978] FamCAFC 128; (1979) FLC 90-725.

^[55] Seever & Sutor [2015] FCCA 3500; Fort & McIntosh [2016] FCCA 663; Kirkpatrick & Higgins [2015] FCCA 3207.

^[56] Coulter & Coulter [2015] FAMCA 1162; Zema & Kristo [2015] FAMCA 1109; Duclos & Duclos [2015] FAMCA 1100; Costello & Costello [2015] FAMCA 1114; Geary & Maddigan [2015] FAMCA 1205; Pannell & Pannell [2015] FCCA 3194; Cunningham & Riley [2016] FCCA 21; Madden & Callanan [2016] FCCA 59; Hill & Anor & Johnston [2016] FCCA 713; Fong & Lam [2016] FCCA 448.

^[57] Newman & Sables [2016] FCCA 722 [48].

^[58] Joyce & Bayden [2016] FCCA 804 [53].

^[59] Kirkpatrick & Higgins [2015] FCCA 3207.

^[60] Ibid [10].

^[61] Sander & Sander [2016] FCCA 568 [66].

^[62] Seever & Sutor [2015] FCCA 3500.

^[63] Ibid [73].

^[64] Reid & Douglas [2016] FCCA 821.

^[65] Ibid [79]-[80].

^[66] Joyce & Bayden [2016] FCCA 804.

^[67] Ibid [13].

^[68] Coulter & Coulter [2015] FAMCA 1162 [140].

^[69] Tallant & Kelsey [2015] FAMCA 1190 [10].

^[70] Lee & Zaplan [2015] FCCA 3258 [75].

^[71] Sander & Sander [2016] FCCA 568 [66].

^[72] Newman & Sables [2016] FCCA 722 [48].

^[73] Madden & Callanan [2016] FCCA 59 [45].

^[74] Hill & Anor & Johnston [2016] FCCA 713 [15].

^[75] Tallant & Kelsey [2015] FAMCA 1190.

^[76] Lee & Zaplan [2015] FCCA 3258.

^[77] Atkinson & Atkinson [2016] FCCA 628.

^[78] Joyce & Bayden [2016] FCCA 804 [42].

^[79] Zema & Kristo [2015] FAMCA 1109 [55].

^[80] Lee v Zaplan [2015] FCCA 3258 [74].

^[81] Zema & Kristo [2015] FAMCA 1109 [52].

^[82] Fong & Lam [2016] FCCA 448 [13].

^[83] Fort & McIntosh [2016] FCCA 663.

^[84] Ibid [3].

^[85] Woodhead et al, above n 3.

^[86] Joyce & Bayden [2016] FCCA 804.

^[87] Jennifer McIntosh, Marsha Kline Pruett and Joan B Kelly, ‘Parental Separation and Overnight Care of Young Children Part II: Putting Theory into Practice’ (2014), 52 Family Court Review 2.

^[88] Woodhead et al, above n 3.