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When an Order is made for parents to have equal shared parental responsibility of a child, the Family Law Act then requires a Court to consider whether an Order for the child to spend equal time or substantial and significant time with each of the parents is in the child’s best interest and reasonably practicable.
But what does the term ‘substantial and significant time’ mean? In the recent decision of Ulster & Viney  Fam CAFC 133, the Full Court of the Family Court had an opportunity to answer this question. The case involved a father’s appeal against Orders made by Judge Bender allowing a mother and the parties’ two children aged 9 and 7 to relocate from Melbourne to Gippsland, 85 km away. At Final Hearing, the mother argued that she had secured employment in Gippsland, that the move would allow her to purchase a property, which she could not afford in Melbourne, and be close to family. In allowing the mother’s application, Orders were made for the children to spend time with the father on alternate weekends, special days and during school holiday periods.
One of the major points of appeal by the father was that an order for alternate weekends, special days and school holidays was not ‘substantial and significant time’ as it did not involve him in the ‘daily routine’ of the children as required by s.65DAA(3) and qualified by s. 65DAA(4) of the Family Law Act:
Section 65DAA(3) provides:
For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
Section 65DAA(4) further provides:
Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
During the appeal, Senior Counsel for the father argued that by giving the words ‘daily’ and ‘routine’ their ordinary meaning, the above provision required involvement in ‘routine occurring or done each day or week day’ and that unless the father was involved in the children’s attendance at school, preparation for school, supervision of homework and the like, the requirements of s.65DAA(3)((b)(i) could not satisfied. Ainslie-Wallace & Ryan JJ did not agree and said that first, the provision did not limit the question of involvement in daily routine to school weeks. Nor did it require involvement in each and every aspect of a child’s daily life. However, the dissenting Judge, Justice Strickland, agreed with the father’s submissions and accepted the following as accurate:
“…Substantial and significant time is that time sufficient to enable children to feel that their parents are involved in all aspects of the care flowing from them being exposed to their parents in a variety of settings. Such settings may include activities on holiday and weekend as well as the day to day reality of the child’s life such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in more mundane situations….Under that proposal, he ceases to be an active participant in their lives as ordinarily lived by them. He becomes a person whom they visit when they take time out from their lives.”
So, whilst the father’s appeal was disallowed, Judge Strickland’s dissenting comments may well be used in future cases for those parents trying to convince a Court that ‘substantial and significant time’ means a lot more than each alternate weekend, special days and school holiday periods.
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