McIntosh Chambers

What is the difference between EQUAL TIME and SUBSTANTIAL AND SIGNIFICANT TIME? (under the Family Law Act 1975 (Cth))  

Last week Ms McIntosh represented a father in a hearing in the Federal Magistrates Court.  One of the issues included the need to define the term 'substantial and signficant time' and what it meant in real terms to this particular father.  The father was very keen to spend additional time with his three year old son, however, the mother resisted the father's application.  The matter progressed to a full hearing to determine the issues.

In simple terms, the rationale to the Family Law Act 1975 (Cth) in defining these terms is as follows:

When courts make a parenting order they are required to presume that, except in cases where there are issues of family violence or child abuse, it is in the best interests of the child for the parents to have "equal shared parental responsibility" for the child.

This does not mean that the child should spend equal time with each parent. Rather, it means that both parents have an equal role in making decisions about important long term issues that affect their children, such as schooling and health care.

Equal Time

If a court makes a parenting order that provides that a child’s parents have equal shared parental responsibility, the court is required, under section 65DAA of the Family Law Act, to consider whether the child should spend equal time with both parents (if this is reasonably practicable and it is in the best interests of the child).

The factors that the court can take into account in determining what is reasonably practicable are set out at sub-section 65DAA(5) of the Family Law Act.

So then what is “Reasonably practicable”?  In order for any shared parenting to work, a few common-sense factors need to be present:

1.  Living in close proximity to each other, so the children can attend the same school, socialise with the same friends and don’t have to travel excessively;

2.  Both parents need to have some ability to communicate with each other and deal with any difficulties that may arise;

3.  Both parents need to be able to commit to a shared parenting arrangement and put it into place without stress for the children;

Substantial and significant time

If the court decides not to order that the child spend equal time with both parents, the court must consider whether the child spending substantial and significant time with each of the parents is in the child's best interests.

Substantial and significant time is defined by at subsection 65DAA(3) of the Family Law Act to include day-to day routine activities and not just weekends and holidays. It includes days that fall on weekends or holidays and on weekdays. It also includes time that a child spends with a parent that allows the child or the parent to be involved in occasions or events that are of significance to the child or the parent.

In the case that was before the court, the father was seeking to spend time on Wednesday and on weekends.  This would fall within the meaning of 'substantial and significant time' within the Act.

At the conclusion of the hearing, judgment was reserved.

Please contact Ms McIntosh if you have parenting issues and require legal representation on (02) 90249540.  (Disclaimer:  Ms McIntosh is a barrister and can either agree to represent you on a direct access basis or refer your case to a solicitor.)