Shared Parental Care – Infant Mental Health Guidelines
Kristie Lear, Family Law Solicitor from Culshaw Miller Lawyers explains the recent guidelines in respect to shared care arrangements for infants.
Whilst it is understood from Section 61C of the Family Law Act 1975 that there is a presumption of equal parental responsibility, what isn’t clear and what seems to be a growing misapprehension amongst participants in the Family Law process, is that there is not a corresponding presumption in favour of equal shared care.
This is an incredibly difficult position for many parents to reconcile with; particularly in circumstances where pre-separation care was shared on an equal basis.
It is important however, that parents accept that what will be the overall determinative factor in cases involving children will be what is in the best interests of that child. This is predominately so in situations involving young children.
The Australian Association for Mental Health in association with Infant Mental Health has recently adopted guidelines based on comprehensive research* conducted in the field of infants, separation and contact. The guidelines indicate that it is imperative for a child to be able to have access to a continuous primary attachment relationship.
What the research suggests is that during the development ages of 0-36 months a child requires the ability to develop a satisfactory, continuous and primary attachment with his or her carer. It is proposed that the importance of this relationship impacts upon such things as emotional well-being, development and the capacity to form meaningful relationships with others.
It is established by the research that repeated and pro-longed absence from the primary caregiver can result in a significant level of distress for the child which in turn can turn into long-term behavioural problems for the child.
Unless and until a child is able to self-soothe and be able to imagine the primary caregiver in their absence, be able to communicate their needs and be able to understand the events surrounding the contact handover, the guidelines suggest non-essential overnight contact away from the primary caregiver should be avoided.
The guidelines seem to adopt an approach whereby shared overnight contact is not acceptable for children under the age of 3 years old, instead promoting frequent and manageable day time contact with the child.
The guidelines go on to emphasise the “co-operation equipment” required to be adopted by parents in order to ensure that they are able to communicate, co-operate and trust each other with respect to the children. Co-parenting is an essential concept in a shared-care arrangement and the long-term benefit to the child is a healthy, meaningful relationship with both parents.
The guidelines are yet to be tested in the Family Law Courts and the legal argument in this respect will be interesting, however in bringing applications to the Court and accepting the process, it is useful for parents to be equipped with the latest information on what is in the best interests of their children.
* McIntosh J & Smyth B (2012), Shared-time parenting and risk, an evidence based matrix. In Kuehnle K & Drozd L. Parenting Plan Evaluations: Applied Research for the Family Court, Oxford University Press