Parenting arrangements and substantial and significant time
Parenting Arrangements and substantial and significant time with children
Substantial and significant time is a term that has a particular meaning under the Family Law Act (1975) (FLA). If you are needing parenting arrangements in orders, whether or not you are wanting for both parents to have equal time with the children, this is a term you should understand.
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When considering parenting arrangements, you should bear in mind that under the Family Law Act 1975(Cth), Section 65DAA provides that:
Subject to certain other matters, if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents. (See Section 65DAA(1) FLA)
Substantial and significant time
Section 65DAA (2) FLA provides that subject to certain other matters, if:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Parenting Arrangements and what is Substantial and Significant time?
The legislation provides that for the purposes of Section 65DAA(2) FLA, a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) 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.
However, that definition does not limit the other matters to which a court can have regard. The court may consider other relevant matters when determining parenting arrangements and whether the time a child spends with a parent would be substantial and significant.
Time over weekends including Friday after school and school holidays
In the decision in Tibb & Sheean  FamCAFC 142, the Family Court of Australia on appeal considered parenting arrangements. The court confirmed the decision of the trial judge that a child who had always lived with the mother following the parents’ separation be moved from the primary care of his mother to the primary care of his father.
The trial judge had made a parenting order for equal shared parental responsibility for the parents and further ordered that the child live with the father and spend time with the mother for three out of four weekends until the child commenced his secondary education when the mother was to spend every alternate weekend with him, as well as half school holidays and time on special occasions. The weekend time was ordered to occur from the conclusion of school Friday or 3.30pm on a non-school day to 5pm on Sunday.
There was a further parenting order that the child spend time and communicate with the mother “[a]t such other times as may be agreed between the parents”.
The Full Court of the Family Court of Australia found that those orders for parenting arrangements were in fact orders for “substantial and significant time” involving time. The orders included “days that do not fall on weekends or holidays” and which “allow [the mother] to be involved in [the child’s] daily routine. This was found even where the orders in effect only provided for the mother to have time with the child on a week day “for a number of hours (“from the conclusion of school Friday or 3.30pm” until, effectively, bedtime) on three out of four Fridays”.
“Days that do not fall on weekends and holidays” and “daily routine”
The Full Court in Tibb’s case referred to the majority decision in the case of Ulster & Viney (2016) FLC 93-722 where the Court said that s 65DAA(3) FLA was to be “interpreted in the context of a divided family, where parents live separately and apart from one another, and that it does not require “daily physical association with each and every procedure or activity that occurs – each day or each weekday.”
The parenting orders in that case provided for time with the father “each alternate weekend from 5:00pm Friday to 5:00pm Sunday or 5:00pm Monday if Monday is a non-school day” as well as school holiday time and time on special and religious occasions.
The Court in Viney’s case said of those parenting orders that they did provide for substantial and significant time:
“….the practical effect of the orders is that the children would have significant block periods of time with the father during school holidays and when alternate weekend and special overnight occasions are taken into account they would probably spend something like 95 – 100 nights annually (and associated days) in his care. There can be no doubt that this provided the father with the opportunity for active participation (involvement) in the children’s daily routine (albeit only to a limited extent during the school week).”
The majority judges in Tibb’s case referred to the Explanatory Memorandum (“EM”) to certain amending legislation which in places set out that the FLA is “intended to ensure that the courts consider arrangements that are much more than ‘one weekend a fortnight and half of the holidays’ or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared parental responsibility that this will generally involve ‘both’ parents spending both substantial and significant time with their children.”
The Court in Tibb’s case noted that the term “weekends” as used in section 65DAA of the FLA may be read as not restricted to Saturdays and Sundays. The terms includes, for example, time from when school finishes on Friday or, even, other days in the case of parents who are fly-in, fly-out workers or multiple shift workers.
The majority judges in Tibb’s case said that the EM’s referral to “substantial and significant time requiring that the child spend both some time on weekends and holidays and some time on other days” requires involvement in routines that occur on those “other days” (ie., on days other than weekends or holidays).
The FLA does not restrict by its terms “daily routine” to school weeks. Neither does the legislation require that a parent is involved in each and every aspect of a child’s daily life. The court said that involvement of a parent in the daily routine of a child does not necessarily require that there be daily involvement.
However, the majority judges in Tibb’s case did not consider that a few hours on a school-week Friday evening constituted “days that do not fall on a weekend or holidays” or that time constituted by those hours (together with time on weekends and holidays) addressed what is intended as “daily routine”.
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