By Jennifer Zekirovska – Senior Associate
The Federal Circuit and Family Court of Australia (Court) is the independent umpire and decision maker when separated parents are unable to agree on parenting arrangements for their children.
Either parent can apply to the Court to decide arrangements for their children. After making a decision about which arrangements will be appropriate based on the children’s best interests, the Court will make Court Orders detailing those arrangements. Parents then need to comply with the Court Orders, unless they both agree other arrangements.
Often a parent will ask the Court to decide and make Court Orders about how much time the children will live with or spend time with each parent.
In most instances, as part of its determination of these issues, the Court is required to consider whether an equal time arrangement will be best for the children.
As the description suggests, an equal time arrangement is where the children spend one half of their time with one parent and the other half with the other parent. This may involve the children spending alternating weeks with each parent – known as a ‘week about arrangement’. Or, for older children, a fortnight about arrangement might be preferred. Alternatively, the children might spend some time with each parent each week, adding up to 7 days each fortnight or 14 days every 4 weeks.
If the Court finds that equal time is not in the children’s best interests, then the Court will order that the children live with one parent. The Court must then consider whether it will be in the children’s best interest to spend substantial and significant time with the other parent, and whether doing so will be reasonably practical.
What constitutes substantial and significant time?
Section 65DAA(3) of the Family Law Act 1975 (Cth) details that substantial and significant time is time that:
- provides for children to spend week day time as well as weekend and holiday time with a parent.
- allows the parent to be involved in children’s daily routines.
- allows the parent to be involved in occasions and events that are of particular importance to the children, such as the children’s birthdays.
- allows the children to be involved in occasions and events that are of particular importance to the parent, such as the parent’s birthday.
The meaning of substantial and significant time and daily routine has been considered by the Full Court of the Family Court in Ulster & Viney (2016) FLC 93-722 and Tibb & Sheean [2018] FamCAFC 142.
In Ulster & Viney, the father appealed against final parenting Orders which allowed the mother to relocate with the parties’ two children, to a location about 85 km away. The Orders provided for the children to spend time with the father on alternate weekends, during school holidays and on special occasions. As part of his appeal, the father asserted that the Orders did not enable him to be involved in the children’s daily routine and therefore did not provide for the children to spend substantial and significant time with him.
The Full Court rejected the father’s assertion, with the majority of Ainslie-Wallace and Ryan JJ finding that a parent can be involved in their children’s daily routines, even if they are not involved in the children’s school week routines. Ainslie-Wallace and Ryan JJ held that a daily routine “does not necessitate being involved in each and every aspect of a child’s life”.
However, the third appeal judge, Strickland J, took a different view. In his dissenting judgment, he stated, “Substantial and significant time is that time sufficient to enable children to feel that their parents are involved in all aspects of their 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. The orders proposed by the [mother] fall short of orders that allow such a balanced and rich relationship with their Father… 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.”
In Tibb & Sheean, the majority of the Court, Strickland, Murphy & Cronin JJ interpreted substantial and significant time in a manner arguably more consistent with Strickland J’s dissenting judgment in Ulster & Viney. The Court found that time commencing after school on Friday and otherwise including only weekends and holidays did not constitute substantial and significant time.
The Court stated, “…as for any 10-year-old child attending primary school, there can be little doubt that the “daily routine” applicable on school days concludes when school finishes on Friday shortly after which “downtime” or “recreational time” commences. Equally there can, in our view, be little doubt that the “daily routines” (or lack of routines) which apply after school finishes on Friday until 5.00pm on Sunday are very different from the “daily routines” which apply on school days.
When is substantial and significant time reasonably practicable?
In deciding whether substantial and significant time is reasonably practical, the Court must consider:
- the impact that the arrangement would have on the child.
- the distance between the parents’ homes.
- each parent’s current and future ability to implement the proposed arrangement.
- each parent’s ability to communicate with one another and resolve any issues that might arise in implementing the arrangement.
- any other matters the Court deems relevant.
The issue of practicality was considered in the matter of Scanlon & Chandler [2016] FCCA 1743. The father had an unusual work schedule, working long hours for 6 to 7 days consecutively, for several weeks at a time, and then having one week off. Taking into account the father’s work commitments, the Court ordered that the children spend time with the father every alternate weekend, and then for 6 days consecutively on his week off.
What does this mean for you?
If you have separated and are trying to put in place parenting arrangements for your children, your proposals will be more compelling if they are consistent with the legislative and court approach to care arrangements for your children.
Before negotiating with your former partner, we recommend you consult with our experienced family lawyers. Our lawyers will help you formulate appropriate proposals that take into account the practicalities of your family situation and your children’s best interests.
