Parenting Arrangements for Infants and Young Children: What Orders Will the Court Make?

Published 29 October 2026 | Written by Special Counsel Renee Smith and Law Clerk Jakoaba Smith

Quick Answer

Australian courts have no fixed formula for parenting arrangements for infants and young children. Under section 60CC of the Family Law Act 1975 (Cth), the Court decides what is in the child’s best interests, focusing on safety, attachment and developmental needs, and each parent’s capacity to meet them. Since 6 May 2024 there is no presumption of equal shared parental responsibility. For children under 4, orders often start with shorter, frequent time with the non-primary carer and gradually build towards longer and overnight time as the child grows, particularly where there is parental conflict.

Is There a Set Framework for Parenting Arrangements for Babies and Toddlers?

Deciding parenting arrangements for small children is difficult when considering the importance of this developmental stage. As the legislation and case law stands, there is no specific framework that the courts use for this age group. Given the substantial differences between experts, legal professionals and parents in their opinions on ideal arrangements, this is not surprising. However, there is building case law allowing for differing care arrangements for children across different age groups, to account for their developmental and attachment needs.

What Does the Family Law Act 1975 Require the Court to Consider?

In considering the child’s best interests, regardless of their age, the Court will consider arrangements that promote the safety of the child. Under s60CC of the Family Law Act, the Court also considers the child’s developmental, psychological, emotional and cultural needs, and the capacity of each parent to provide for those needs. In the case of infants and small children, given that this age group is one of the most neurologically, behaviourally and emotionally important developmental stages, the Court will examine the facts of the case closely to determine the capacity of each parent to provide the support needed during these stages, and beyond. This includes the parents’ ability to cooperate.

Since the Family Law Amendment Act 2023 (Cth) commenced on 6 May 2024, there is no longer a presumption of equal shared parental responsibility. The Court now decides who makes major long-term decisions, and how much time the child spends with each parent, based on what is in the child’s best interests. The weighting of these factors will be different in each specific case and will lead to the Court making different orders in each case.

What Types of Parenting Orders Are Made for Young Children?

The three cases below show the range of orders courts have made for children aged under 4. Note that Becker v Waterman and Cook & Aiken were decided before the 2024 amendments, when the presumption of equal shared parental responsibility still applied.

Sole Parental Responsibility with Short, Regular Time: Becker V Waterman [2022] Fedcfamc2f 1611

While there is no evidence to suggest that overnight time with the non-primary carer is problematic to a young child’s development, it has been suggested that shorter, more frequent visits, with a supervised contact service if needed, are better for children in this age group to foster stability and routine. This case concerned a three-and-a-half-year-old child and the appropriate care arrangements to be implemented. Under the law at the time, the presumption that parents should have equal shared parental responsibility for the child was rebutted due to their continued conflict, which in the Court’s view was likely to remain unresolved and further impact the child. As such, sole parental responsibility was awarded to the mother as she demonstrated a greater capacity to make decisions in the child’s best interests, namely the child’s emotional and developmental needs. This was shown using an expert report, which showed the child had an emotionally significant attachment to the mother, while a ‘developing’ attachment to his father. It was the expert’s opinion that this would be aided by planned, consistent and age-appropriate arrangements. It was also submitted in evidence that the father had previously rejected the mother’s proposal for more frequent time, saying that ‘once a fortnight’ was enough time. These factors, combined with the fact that the child was accustomed to being in the primary care of the mother, led to the Court making the following orders:

Parenting arrangements

  1. X live with the mother.
  2. X spend time with the father as follows:
    • During school terms, from 9 November 2022 until 21 March 2023 on a fortnightly basis as follows:
      • In Week One, from 8.15am on Friday until 5.00pm on Saturday; and
      • In Week Two, from 5.45pm on Thursday until 5.45pm on Friday.
  1. During school terms, from 22 March 2023 on a fortnightly basis as follows:
    • In Week One, from 8.15am on Friday until 5.00pm on Sunday; and
    • In Week Two, from 5.45pm on Thursday until 5.45pm on Friday.
  1. During school terms, from 22 March 2024 until X commences school as follows:
    • In Week One, from 5.45pm on Thursday until 5.00pm on Sunday; and
    • In Week Two, from 5.45pm on Thursday until 5.45pm on Friday.
  1. During school terms, from the start of X’s schooling in 2025 and each year thereafter on a fortnightly basis as follows:
    • In Week One, from the conclusion of school on Friday until the commencement of school on Monday (in case Monday is a public holiday, commencement of school on Tuesday); and
    • In Week Two, from the conclusion of school on Thursday until the commencement of school on Friday.
  1. Otherwise as agreed by the parties in writing.

Orders made only until the child starts school: Sciacchitano v Zhukov (2024) 71 Fam LR 561

One of the main difficulties with making final orders for infant children is that it is difficult to predict how time should progress as they get older. In this case, final orders were sought in relation to the care of a three-year-old child. The primary judge stated that it was not possible to predict with certainty what parenting orders would be in the child’s best interests beyond January 2027 (when the child begins primary school), so final orders in relation to school holiday time were not made. Given the conflict between the parents, and the trial judge’s finding that it would be ‘impossible to determine whether either parent perpetrated family violence’, his Honour was of the opinion that, given the child’s age, it would be difficult to predict what arrangements would be in the child’s best interests in future, noting that the circumstances were unstable. As such, orders were made that the child live with the mother and spend time with the father, progressing gradually from 8 hours each Saturday to each alternate weekend from after school on Friday to before school on Monday. A further parenting application would have to be made to the Court if the parties could not agree to vary the existing orders in relation to school holidays once school begins. On appeal, this arrangement was kept in place, noting that the parties could review the orders later once there had been a change in circumstances.

Progressing from daytime to overnight time at an interim hearing: Cook & Aiken [2011] FMCAfam 1465

Research has shown that young children aged 0 to 4 form primary attachments to carers, which they often rely on for emotional regulation. Especially at an interim stage, it is difficult for the Court to decide whether to order overnight time, particularly if no experts such as psychologists or family therapists have been engaged to give their views. In this case, the parties’ 23-month-old child had not yet spent any overnight time with the father. The mother sought interim orders maintaining shared parental responsibility on their existing 6 days per fortnight arrangement, in which the father spent some hours with the child during the day. The Court considered that, given the presumption of equal shared parental responsibility as the law then stood, it was in the child’s best interests to continue spending time with the father as currently arranged, with two trial overnight times to be arranged. However, in light of the continued conflict between the parents over shared time, it was noted that equal time was not in the child’s best interests; instead the child was to remain primarily with the mother. To assist with the conflict, it was ordered that changeover occur in a public place at the child’s daycare. It is important to note that this was ‘not a risk case’. There were no risk factors present in the Judge’s view, which significantly impacted the outcome. The interim orders were as follows:

  1. The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the child X born in 2009.
  2. The child X is to live with the Mother.
  3. The child is to spend time with the Father as follows:
    1. from 1:30pm each Monday until 8:00am on Tuesday;
    2. each Wednesday from 1:30pm until 7:00pm;
    3. each Thursday from 1:30pm until 7:00pm;
    4. each Saturday from 11:30am until 7:00pm; and
    5. from 2:00pm to 7:00pm on Christmas Day.

How Can Parents Reach the Best Outcome for a Young Child?

Given that children below the age of 4 cannot regulate their own emotions without an attachment figure, some judges would ideally prefer an attachment expert to be engaged for every family. However, this is an expense that cannot be met in all cases. The ability of parents to co-parent effectively is important, and potential or actual exposure to parental conflict is considered a developmental risk. If parents are unable to support a meaningful and stable relationship with the other parent, this can impact the psychological and emotional adjustment of infants and small children to new routines and arrangements. For children in this young age group, feelings of security, attachment and stability between parents and within the routines imposed are significant. Where significant conflict exists between parents (and new partners), depending on the circumstances and the extent of the conflict, the Court may consider that it is not in the best interests of the child or children to spend equal or substantial time with both parents. To offset this, the engagement of family experts, Independent Children’s Lawyers and family therapists can assist in determining the care arrangement that suits each individual child and their needs.

Ramsden Family Law: How We Can Help

If you are considering your options in a family law matter or require independent legal advice about parenting arrangements for an infant or young child, please consult our experienced family law specialists at Ramsden Family Law. We offer a free 30 minute initial consultation to help you take the first step in your family law matter where we can provide you with the necessary legal support and guidance to protect your best interests during this time.

Our team of dedicated family law specialists brings extensive experience to the table.

The content of this article is intended to provide general guidance on the subject matter and must not be relied on as legal advice. Specific advice should be sought about your circumstances.

Resources for separating parents

If you are currently going through separation, please see below resources to assist you:

Frequently Asked Questions

Can a baby or toddler stay overnight with the other parent after separation?

Yes. There is no rule against overnight time for young children, and no evidence that overnight time with the non-primary carer is in itself harmful. Courts often introduce overnights gradually, sometimes starting with trial overnights, as in Cook & Aiken, depending on the child’s attachment, routine and the level of conflict between the parents.

Is there a presumption of equal shared parental responsibility in Australia?

No, not since 6 May 2024. The Family Law Amendment Act 2023 removed the presumption. The Court now decides parental responsibility based on the child’s best interests, and parents with joint responsibility must consult each other and make a genuine effort to agree on major long-term decisions.

Will the Court make orders that last until my child is a teenager?

Not necessarily. Because it is hard to predict a very young child’s needs years ahead, courts may make orders that step up over time, or orders that only run until the child starts school, as in Sciacchitano v Zhukov.

Do I need a family report or expert for a parenting matter involving a young child?

It is not mandatory, but an expert report on the child’s attachment can carry significant weight, as it did in Becker v Waterman. An Independent Children’s Lawyer or family therapist may also assist the Court.