I’ve heard the phrase “substantial and significant time”, but what does this mean?

Our firm is often approached by clients seeking our specialist advice as to the time their child will spend with them, or their former partner, or seeking a second opinion as to the advice they have earlier received as to what is a likely outcome. 

In this article, our Ryan Brenson, solicitor, discusses the legislative framework for deciding how much time a child is to spend with their parents. 

Simply put, if an order has been made for equal shared parental responsibility (which is separate and distinct from the time a child spends with their parents), the Family Law Act 1975(the Act) requires the Court to consider the child spending equal time with their parents, and if that is not in the child’s best interest, then the Court must consider the child spending “substantial and significant time”. 

What then exactly is meant by the phrase “substantial and significant time” as found in the Act? 

Helpfully, this question was recently revisited by the Full Court in the decision of Tibb & Sheean[2018].

In this case, the Independent Children’s Lawyer argued that the 10-year-old child spending time with their mother every three out of four weekends, from after school Friday until 5:00pm Sunday, and half of the school holidays, satisfied the requirements of “substantial and significant time”. 

In their decision, the Full Court had reference to section 65DAA(3) of the Act which provides that a child will be taken to spend substantial and significant time with a parent only if:

1.     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;

 

2.     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

 

3.     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.

The Court rejected the Independent Children’s Lawyer’s argument that the time proposed met the requirements of substantial and significant time. The Full Court said that:

“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 ‘daily routines’ (or lack of routines) which apply after school finishes on Friday until 5:00pm Sunday are very different from the ‘daily routines’ which apply on school days.

Thus, if you have recently separated, and have received a proposal from your former partner as to how much time your child is to spend with you, or you are considering making a proposal yourself, we urge you to contact one of family lawyers to ensure that any proposed time meets the principles and objects underlying the Act and accords with what is in your child’s best interests.