Substantial issue in dispute test

Substantial issue in dispute test

For the purposes of deciding whether a grant of assistance should be made to a person in a parenting dispute, a ‘substantial issue in dispute’ is an issue that is:

The dispute must be real. Orders for peace of mind, for example where a person wants to obtain a court order to feel more secure about arrangements, do not satisfy the guidelines.

Examples of disputes about a substantial issue are:

  • where and with whom the child is to live
  • whether 'time spent' should be allowed
  • whether 'time spent' should be supervised
  • whether 'time spent' should be allowed overnight rather than only during daytime
  • whether a parent should be allowed to relocate the child to another state or country or a significant distance from the other parent or guardian
  • whether a parent who spends time with the child should allow another person to be present where there are allegations of violence or child abuse against that person.

The following are examples of disputes that are not considered substantial:

  • who should pay for travel costs associated with 'time spent'
  • which school the child should attend
  • 'time spent' for birthdays, Christmas or other significant celebrations
  • proportionately small changes to the number of hours of time spent, unless the child is of pre-school age. For example, where the child is under the age of two years, a change of a number of hours in time spent may be considered a substantial issue. Where the child is aged two to six years, a half-day change in time spent may be considered a substantial issue
  • where there is no issue in dispute and the parties are seeking to formalise existing parenting arrangements
  • where the only issue between the parties is that they have difficulty communicating
  • where the only issue between the parties is the place where changeover occurs.

For examples that support this definition and information on the documentary evidence a lawyer is required to keep on the file, see Notes on the Commonwealth Family Law and Child Support Guidelines.