"I have had a holiday, and I'd like to take it up
- Kylie Minogue
In 2006, amendments were made to the Family Law Act 1975 that required (amongst other things) the Courts to consider if parents should have equal shared parental responsibility for their children, and if so, whether they should have equal time, and if not, whether one parent should have significant and substantial time.
Significant and substantial time is defined in section 65DAA(3) of the Act as being time that allows a child to spend time with a parent on both weekends and holidays and days during the school week. It is time which enables a parent to be involved in a child's daily routine and on occasions and events which are of particular significance.
There are no provisions in the Family Law Act 1975 which distinguish between what the Court needs to take into account when determining time during the school holidays and time during the school term. At all times the best interests of the children are the paramount consideration. There is no presumption that all school holidays are to be shared equally.
Prior to 2006, a common post separation parenting arrangement might be that the children primarily lived with one parent, that the other parent spend only alternate weekends with the children, and that both parents spend equal time with the children during the school holidays. Post 2006, the amount of the time the other parent spent with the children increased in some cases with midweek time or extended weekends becoming more common. The parents generally continued to spend equal time with the children during the school holidays.
Equal time can sometimes mean weekabout (7 nights each with each parent) or the first or second half of the holidays (in the end of term 4 holidays this could be approximately 20 nights or more with each parent), or any other arrangement the parents agree on. For a parent who usually only spends weekends with the children, school holiday time represents a significant difference in the amount of time spent with them.
In Pannell & Pannell the mother proposed the children spend 2 days in the school holidays with the father and the father proposed they have equal (weekabout) time. The judge in that matter determined that blocks of 3 days was of sufficient quantity to remain meaningful and engage in a variety of circumstances including school holidays and special occasions. One has to bear in mind that this was an interim hearing only and there is a limited amount of information which can be taken into account at an interim stage.
Why is it that time during the school holidays are treated differently from time during the school term? In the matter of Wyndham & Wyndham the parties agreed that holidays would be shared equally although there was a dispute about time during the school term. One of the father's submissions in support of his case was that as the parties had agreed the holidays would be shared equally he could not see why term time should be any different.
The trial judge in the matter stated that
"The school holidays are a different type of time and experience for the children. It is a different type of time the children experience to the time during school term'.
The trial judge in Gear & Anor & Faraday & Anor stated
'Holidays are an ideal time to commence longer time away from primary carers'.
Some parents work and some parents do not. In many cases a parent cannot spend half of the school holidays personally supervising the children. Even if one parent is able to personally care for the children 24/7 during the school holidays but the other parent is not and is required to use family care or holiday care, this will not necessarily mean that they will be prejudiced in an application for equal time in the school holidays.
Furthermore, if one parent usually works in the school holidays during the relationship, it does not follow that after separation this will continue to be the case. In some cases after parents separate they reorganise their work schedules or social schedules to increase their time with the children, and the Court is willing to recognise this going forward.
Generally, absent issues of risk, the Court is more willing to make orders for equal (or at least increased) time during a school holiday period. If you need assistance in making parenting arrangements for your child/?children we encourage you to contact a family lawyer to discuss same.
For further information please contact:
Sherlene Heng, Senior Associate
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.