Where there a dispute over custody of children, the Family Court
will often be called upon to decide how much time those children
will spend with each parent. For convenience, let us refer to this
question as the "Time Question".
The starting point in answering the Time Question is s 65DAA of
the Family Law Act 1975 (Cth). Section s 65DAA provides
that the Family Court can order that:
Each parent is permitted to spend equal time with their
One parent is permitted to spend substantial and significant
time with their children over and above that of the other
Equal time, as the name suggests, means that the children are to
spend 50% of their time living with one parent, and 50% of their
time living with the other. This often takes the form of "week
about" arrangements: arrangements whereby the children live
with one parent for one week and the other parent for the
Substantial and significant time, also as the name suggests,
means that the children are to spend more than 50% of their time
living with one parent and less than 50% of the time living with
another. The exact amount of time each parent is permitted to spend
with the children will depend on, amongst other things, the best
interests of the children.
Before the Family Court can make an order for equal time or
substantial and significant time, it must first be satisfied that
the parents have "equal shared responsibility" for the
children. Parental responsibility is different from the Time
Question in that the Time Question relates to how much time the
children physically spend with each parent and parental
responsibility relates to which parent is responsible for making
major long term decisions in respect of the children such as where
they live, schooling and religion.
It is important to note that parents are (save for limited
circumstances) equally responsible for their children even if one
parent has substantial and significant time over the other
The Time Question (and the parental responsibility question)
often becomes an issue when the parents of the children live very
far apart from one another and it is not practicable for equal
This issue was recently considered in the case of
Elia & Wilson  FMCAfam 548. In
that case, the Court had to consider whether the children spent
significant and substantial time with one parent over the other
when one parent moved interstate.
In coming to its decision the Court looked at a number of
factors including which parent the children were more attached to,
which parent the children had spent more time with as well as the
age of the children and whether they had any ties (schools, friends
etc) to any particular location.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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