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What is "substantial and significant" time?

If a child or children of separated parties do not live in an equal time arrangement, the Court must consider whether “substantial and significant” time with the non-resident parent would be in the best interest of the children.

Substantial and significant time is not expressly defined in the Family Law Act. However, it does provide that a child will be taken to spend substantial and significant time with a parent if the time with that parent includes weekdays, weekends and holidays as long as such arrangements allow the parent to be involved in the child’s daily routine and occasions or events that are of particular significance to the child as well as allow the child to be involved with occasions or events that of special significance to the parent.

Whilst the above description gives a clear indication as to what substantial and significant time is considered to be, the recent Full Court decision of Ulster & Viney [2016] held that a more restricted care arrangement amounted to substantial and significant time. This was an appeal of a judgment that permitted a mother to relocate with the children, resulting in mid-week time that the children spend with their father ceasing.

The father appealed this judgment on the basis that the time that the orders provided for the children to spend with the father did not amount to substantial or significant time.

The Full Court dismissed the father’s appeal and held that a care arrangement consisting of alternate weekends, special occasions and holiday time amounted to substantial and significant time. The Full Court held that for the purposes of the Family Law Act, involvement in the “child’s daily routine” did not require seeing the child on a daily basis.

All matters must be distinguished and determined on their individual facts. It is important to acknowledge that in Ulster & Viney, this view of substantial and significant time arose in the context of a relocation thereby introducing logistical complications of mid-week time occurring with the non-resident parent. Nevertheless, it will be important to monitor whether this view of substantial and significant time is applied in the broader context of parents who remain within the same area or region with their children.

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