SUBSTANTIAL AND SIGNIFICANT TIME
If you are separating from your partner or spouse and are considering putting an agreement in place to govern parenting issues, it is important to be aware that the Court will not automatically make an order for 50/50 time. This is because under the Family Law Act 1975, the Court must consider a range of factors to determine what is in the best interests of the child.
If a parenting order is to provide that the parents have equal shared responsibility for the child, but the Court does not consider ‘equal time’ to be in the child’s best interests (that is, the child to spend equal time with both parents) then the Court is required to consider whether the child spending what is called ‘substantial and significant time’ with each parent is in their best interests.
The best interests of the child are determined by the Court considering a variety of factors, called the ‘section 60CC factors’, including, for example, the age and needs of the child, the capacity of the parents to meet the child’s needs, the nature of the relationship between the child and each of the parents, the child’s views and any domestic violence orders in place.
Section 65DAA of the Family Law Act 1975 sets out the requirement to consider ‘substantial and significant time’ in detail.
What Constitutes Substantial and Significant Time?
Section 65DAA(3) provides a definition of substantial and significant time. The requirements for time being substantial and significant are:
- That the child spends time with the parent on both weekends and holidays;
- That the child spends time with the parent on days that are not weekends or holidays;
- That the parent spends time involved in the child’s daily routine;
- That the parent spends time involved in special events and occasions in the child’s life;
- That the child spends time with the parent on special events and occasions in the parent’s life.
From this definition we can see that substantial and significant time means that the parent must be able to be included in not only the routine aspects of the child’s life, but also the special occasions and events.
What Else is Considered?
When considering whether to make an order for substantial and significant time, the Court must also determine whether that substantial and significant time is reasonably practicable.
For example, if one of the parents has a restrictive work schedule with long hours, then such time might not be practical for the parties or the child.
In addition, when making such orders, the Court must always consider the paramount factor, being whether the order is in the ‘best interests of the child’.
What You Should Consider
When coming to an agreement between parties about who the child is to spend time with, equal 50/50 time is not an automatic order that the Court will make. The Court must consider overall having regard to the section 60CC factors, what order is in the child’s best interests and what order is reasonably practicable.
Remember, if you are not successful in achieving an order for equal time, it is a good possibility that the Court may still consider that an order for substantial and significant time is in the child’s best interests. Such and order will allow each parent is involved in the routine and important events in their child’s lives.
Wherever possible, be sure to try and reach an agreement with the other parent through the process of mediation. Mediation gives you control over the outcome, rather than placing your child’s future in the hands of a third party Judge.
Have you recently separated and are you wanting to secure formal arrangements to spend time with your children? Contact us to book a reduced rate initial consultation with one of our experienced family law experts, to discuss your rights.
Author: Amanda Brooker