Shared Parenting – Equal Time or Substantial and Significant Time?

Equal time 

When you are separating and considering future arrangements for your child or children, it is important to remember that there is no automatic right for parents to spend ‘equal time’ with their children.

When the Court makes an Order that parents are to have equal shared parental responsibility of a child or children, the Court must:

1. consider whether the child spending equal time with each of the parents would be in the best interests of the child;

2. consider whether the child spending equal time with each of the parents is reasonably practicable; and

3. if it is, consider making an order to provide (or include a provision in the order) for the child to spend equal time with each of the parents.

However, in some instances, the Court will make an Order determining that parents have equal shared parental responsibility of a child or children, but will determine it is not in their best interests of the child, or reasonably practicable, for the child to spend equal time with both parents.  In these circumstances, the Court may make an Order for the child to spend substantial and significant time with each of the parents if:

1. it is in the best interests of the child; and

2. it is reasonably practicable to do so.

So what is significant and substantial time?

S65DAA(3) of the Family Law Act provides that 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, and

(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.

Subsection (3) above does not limit the other matters to which a court can have regard to in determining whether the time a child spends with a parent would be substantial and significant.

In determining ‘reasonable practicality’, the Court must consider:

1. how far apart the parents live from each other; and

2. the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

3. the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

4. the impact that an arrangement of that kind would have on the child; and

5. such other matters as the court considers relevant.

Case law

In the matter of Wendland & Wendland (2017) FLC 93-808, the Father unsuccessfully appealed a final parenting order providing for the child to relocate with the mother wherever she was posted by her employer, the Australian Defence Force. The Court found that the primary judge was correct in determining that spending substantial and significant time with each of the parents was not in the best interests of the child.

In the matter of Ulster & Viney (2016) FLX 93-722, the Father unsuccessfully appealed orders allowing the mother to relocate approximately a 90 minute drive from the Father’s residence. Orders were made providing for the children to spend time with the Father on alternate weekends, special days and school holidays. On appeal, the Father argued that the final orders made by the primary judge did not amount to substantial and significant time, as the Orders did not provide for the Father to be involved in the children’s daily routine consistent with the meaning of ‘substantial and significant time.’

In dismissing the Father’s appeal, the Full Court found that the primary judge considered the elements of substantial and significant time by considering the amount of time the children would spend with the father and also its significance in terms of the children’s relationship with him and the extent to which he would be involved in their lives.