School Hol­i­day Time

“I have had a hol­i­day, and I’d like to take it up professionally”

- 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.