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 to 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 children; or
- One parent is permitted to spend substantial and significant time with their children over and above that of the other parent.
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 other.
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 parent.
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 time.
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 several 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.