Where the Family Court makes an Order that parents have equal shared parental responsibility for a child, the Family Law Act/Family Court Act directs that the Court must consider that each parent should spend equal or substantial and significant time with the child. Equal shared parental responsibility is the ability to make major long-term decisions about a child in relation to things such as their health, schooling and religion.
When deciding if and how much time each parent should spend with a child, the Court must consider what is in the best interests of the child. The Court has the paramount consideration as “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”. This is then accompanied by a whole range of other considerations including the benefit of the child having a meaningful relationship with both parents and the practicality and affordability of the arrangement.
What is Substantial and Significant Time?
Under section 65DAA(3) of the Family Law Act, a child will be taken to spend substantial and significant time with a parent only if:
The time the child spends with the parent includes both:
- days that fall on weekends and holidays; and
- days that do not fall on weekends or holidays; and
The time the child spends with the parent allows the parent to be involved in:
- the child’s daily routine; and
- occasions and events that are of particular significance to the child; and
- the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Prior to a recent judgment in the Family Court, there was some ambiguity as to what substantial and significant time really meant. The decision in Ulster & Viney [2016] Fam CAFC 133 allowed the Full Court of the Family Court to further explore this uncertainty and ultimately offer some guidance moving forward.
The case was centred on a father’s appeal against orders made at first instance allowing the mother and the parties’ two young children to relocate just short of 100km away for better employment and living opportunities. The mother’s application was allowed and the father was ordered to spend time with the children on alternate weekends, special days and time during the quarterly school holidays. The father appealed on the basis that the orders made did now allow for him to be involved in the daily routine of the children as stated by the legislation. It was the father’s position that unless the father was involved in the weekly schooling routine, then it could not be said that the requirements of the legislation were satisfied. Unfortunately, due to a range of other factors, the father’s appeal was ultimately dismissed, but the dissenting Judge, Justice Strickland offered the following statements:
“…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.”
It can be noted from the above comments that substantial and significant extends beyond alternate weekends, special occasions and school holidays.
What does this mean for the non-traditional working family?
Gone are the days of the traditional Monday to Friday 9-5 working weeks for many parents in our communities. This is particularly true for many Western Australians who engage in fly-in-fly-out work both domestically and internationally. So what does this mean for non-traditional working parents and their time with their children?
As stated above, when deciding whether substantial and significant time between a parent and a child is suitable, the Court must turn their mind to the reasonable practicality of the arrangements. The Court is becoming more and more familiar with situations like these, and will often produce quite complex orders which do the best job possible to accommodate a larger period of time with the non-resident parent, despite them having a non-traditional working schedule.
In the case of Scanlon v Chandler [2016] FCCA 1743, the father had a very intense working schedule which essentially meant he worked between 6 and 7 days straight with very long hours for a number of weeks, and then was given 1 week off. The Court ordered that the father spend time with the children every alternate weekend, and then for 6 days consecutively on his week off.
In the case of Galvin v Galvin [2016] FCCA 2742, the father indicated that he had a roster of 2 weeks on and 2 weeks off, although there was some uncertainly as to whether this arrangement would continue into the future. The Court ordered that the child spend no more than 12 days per calendar month with the father. Given the father was only home for 14 days of each month, this was for almost the entirety of the time that he was not working.
It must be noted that there were a range of additional factors considered in the above cases which ultimately lead to the Orders for time spent made by the Court. However in summation it can be observed that the Court is very flexible and accommodating when making orders for non-traditional working parents to still spend extended periods of time with their children.
If you want advice about your own personal situation, or you know someone who does, please don’t hesitate to contact the expert family law team at Lynn and Brown Lawyers.
For more information on Family Law, view our Family Law fact sheets and articles.
About the authors:
Zoe Rosman is a Perth lawyer and was admitted as a solicitor of the Supreme Court of Western Australia in 2018 and specialises in Family Law and Wills & Estate Planning matters. Jacqui is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in family law, mediation and estate planning. Jacqui is also a Nationally Accredited Mediator and a Notary Public.
