Substantial and significant time

Substantial and significant time

Ulster & Viney [2016] FamCAFC 133 (28 July 2016)

The Full Court of the Family Court of Australia has recently disagreed as to the meaning of “substantial and significant time”.

STRICKLAND J

1. I have had the advantage of reading the draft judgment of Ainslie-Wallace and Ryan JJ. Unfortunately, I cannot agree with the outcome proposed by their Honours, and I would allow the appeal, set aside the orders appealed against, remit the proceedings to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Bender, and issue costs certificates for the appeal and the rehearing.
2. The background facts, and a summary of the reasons for judgment of the primary judge, are amply set out in their Honours’ reasons for judgment, and I do not need to repeat the same.
3. In relation to the grounds of appeal, it is convenient to address the same in the order that they were dealt with by senior counsel for the father and by their Honours.

Ground 1

1. Her Honour erred in determining (at [160] of the Reasons) that the orders proposed by the [mother] would provide for the [father] to spend “significant and substantial time” (sic) with the children in that the time proposed was not such as to enable the [father] to be involved in the daily routine of the children or either of them.
(Original emphasis)

4. I agree with their Honours’ finding, and their reasons therefor, in relation to the meaning of “daily routine” in s 65DAA(3)(b)(i) of the Family Law Act 1975 (Cth) (“the Act”), but not with their reasons for rejecting the complaint of the father that the order made by her Honour was not one “which can properly be said to provide for ‘substantial and significant time’ in any broader sense of that expression” (emphasis omitted), relying on what the Full Court said inEddington and Eddington (No 2) [2007] FamCA 1299; (2007) FLC 93-349 at 82,000, namely:
   66. …Clearly, the amount of time which children spend with a parent potentially impacts upon the quality or significance of that time. In our view, the time which the children would spend with the appellant pursuant to the trial Judge’s orders, the duration of such periods and the frequency at which they would occur are likely to impact adversely upon the significance of the time which the children would spend with the appellant. There is thus a nexus between the substance and the significance of the time which the children would spend with the appellant. Beyond noting that the legislative requirements are conjunctive, we need say no more, other than to stress that the case turns on its own particular facts and circumstances…
5. It is beyond doubt that the time the children are to spend with the father is “extremely limited” and pales in comparison with the amount of time they enjoyed with him prior to separation and under the interim orders. The magnitude of that change and its effect on the relationship between the children and the father is amply described by the family report writer in paragraph 68 of his report dated 12 June 2015, namely:

… Such a proposal entails the children moving from seeing [the father] six nights per fortnight to only two. This is a high magnitude change. The children and [the father] enjoy a strong and sound relationship which would be eroded and compromised if their time with him is reduced to such an extent. This would entail a significant loss for them which would not be in their interest.

6. On that basis the following submissions made by the father’s senior counsel in the written outline of argument are entirely apt, and I accept them as accurate:
   10. In the context of this case the time spent under the proposal is neither substantial nor significant. The time is a small fraction of that enjoyed with the father before the implementation of such orders and its significance to the children is to be measured only by the degree of loss that will be occasioned to them and the erosion and compromise of their relationship with him occasioned by that reduction. Substantial and significant time is that time sufficient to enable children to feel that their parents are involved in all aspects of their 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. The orders proposed by the [mother] fall short of orders that allow such a balanced and rich relationship with their Father.
   11. 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.
7. Their Honours look to justify her Honour’s finding and consequent order by looking at the respective proposals of the parties in the event that relocation was permitted, and by noting their similarity. However, with respect, that misapprehends the task of a primary judge in considering s 65DAA of the Act in a case where relocation is sought. As the primary judge correctly indicated in her reasons for judgment (at [97]), “a relocation matter is to be determined in the same way that all parenting matters are determined”. Thus, it is putting the cart before the horse to approach s 65DAA on the basis of what if the relocation was permitted.
8. In my view, this aspect of Ground 1 clearly has merit.

AINSLIE-WALLACE AND RYAN JJ

Substantial and significant time (ground 1)

82. The gravamen of the challenge raised by ground 1 is that the primary judge misstated the practical effect of Orders 4 – 8 (inclusive) as providing for the children to spend “substantial and significant time” with the father. This challenge dovetails with those raised against her Honour’s approach to s 65DAA and what is said to be a failure to apply that provision in the manner directed by MRR v GR (2010) 240 CLR 461.
83. There is no doubt that because the parties were to have equal shared parental responsibility, s 65DAA was engaged and thus the primary judge was required to consider whether an order for equal time or substantial and significant time was in the best interests of the children and reasonably practicable, and only if those propositions were answered in the negative, could the question of what outcome promotes the child’s best interests be treated, in effect, as at large (Goode and Goode (2006) FLC 93-286 at [65(8)]). It follows that if the primary judge did not in fact make orders in favour of the father for substantial and significant time, the assertion that the primary judge impermissibly treated the time issue as being at large becomes arguable.
84. The phrase “substantial and significant time” is defined in s 65DAA(3) and qualified by s 65DAA(4).
85. Section 65DAA(3) provides:

(3) For the purposes of subsection (2), 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.

(Original emphasis)

86. Section 65DAA(4) further provides:

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

87. In Eddington and Eddington (No 2) (2007) FLC 93-349, the Full Court determined the manner in which these provisions operate. The Full Court said (at 81,997):
    54. It is evident that, although orders for time to be spent with a parent fall literally within the provisions of section 65DAA(3)(a)(b) and (c), that does not mean that the orders thereby provide for substantial and significant time within the terms of the legislation. It is equally evident that orders made for time spent cannot satisfy the requirements of substantial and significant time unless they literally meet all of the requirements of those provisions. What constitutes substantial and significant time will vary from case to case. What is substantial and significant time in one factual context may well not be in another. Whatever their terms, orders for substantial and significant time will have in common that they literally comply with each of the requirements created by s 65DAA(3). There is no issue that the orders under consideration did so comply.
88. Thus the test as to whether orders make provision for substantial and significant time is in two parts. The first is mandatory and requires compliance with each element of s 65DAA(3). The second requires the exercise of discretion in accordance with s 65DAA(4). If the first question is answered in the negative, the orders cannot be for substantial and significant time. However, if that question is answered in the affirmative, it is necessary to consider whether in the factual context of the case the time is both substantial and significant. It follows that a finding pursuant to s 65DAA(4) in one case is likely to be irrelevant to the resolution of that issue in a different case (see Eddington (No 2) at [66]).
89. It is uncontentious that provision is made in the orders for the children to spend time with the father on all occasions listed in s 65DAA(3) barring s 65DAA(3)(b)(i). However, it is the father’s contention that the orders do not satisfy s 65DAA(3)(b)(i) and thus fail to satisfy the mandatory component of the test. The effect of this sub-section is that the order must permit the parent to be involved in the child’s daily routine. Senior counsel for the father contends that by giving the words “daily” and “routine” their ordinary meaning, the provision requires involvement in “routine occurring or done each day or weekday” (Summary of Argument at [5]). Having limited the words in this fashion, senior counsel went on to argue that unless the father was involved in the children’s attendance at school, preparation for school, supervision of homework and the like, the requirements of the provision could not be satisfied. The point being, “[f]or the proposal or any order to be compliant with subsection (3)(b)(i) it would necessarily be facilitative of the [father] being inextricably associated, closely connected or actively participating in with [sic] the customary or regular course of procedure occurring each day or each weekday.” (Summary of Argument at [7])
90. We do not agree. First, the provision does not limit the question of involvement in daily routine to school weeks. Nor does it require involvement in each and every aspect of a child’s daily life. This interpretation is consistent with the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 which introduced s 65DAA(3) into the Act and described the provision as follows:

186. Subsection 65DAA(3) makes it clear that substantial and significant time requires that the child spend both some time on weekends and holidays and some time on other days. It must also include time in daily routine and allow for participation in events that are significant to the child. This might include sporting events, birthdays or concerts. It would also include the child being able to be involved in events of significance to the parent such as family weddings or christenings, mother’s or father’s day, birthdays.

91. We agree with counsel for the mother’s submission that the section is 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.”
92. Here, 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).
93. It follows the orders satisfy each element of s 65DAA(3).
94. Consideration of the second limb of the test is thus required; namely whether, the primary judge erred in the exercise of her discretion by, in the circumstances of this case, finding that the amount of time ordered is “substantial and significant”.
95. The second question is to be considered in the context of her Honour’s determination that the children’s best interests were served by being in the mother’s primary care. Another important contextual matter is that the primary judge was also satisfied it was in the best interests of the children to permit the mother’s application for their relocation.
96. Based on this scenario, the mother put forward two proposals as to the children’s time with the father. The first was predicated upon the father being willing to move to an outer Melbourne suburb and thus closer to where she and the children lived. If the father was willing to move the mother proposed that the shared care arrangement continue (at [63]). However, the father was unwilling to move. Her Honour said:
    86. It is the [father’s] evidence that he seriously considered [the mother’s] proposal made during the report preparation that he move closer to [the children] in Gippsland so that they could continue a shared care arrangement. It is [the father’s] evidence that he realised this proposal would not be practical as it would involve a commute of in excess of three hours each day for him to be able to travel to and from work.
97. It was thus uncontentious that orders along these lines (which would include those recommended by the family reporter) were not reasonably practicable.
98. As to the second proposal advanced by the mother, the primary judge described it thus:
    4. If permitted to relocate, [the mother] seeks orders that [the children] spend time with [the father] on alternate weekends from after school Friday to 7:00pm Sunday (or Monday if non-school day), dinner each Wednesday from 5:00pm to 7:00pm, for ten days in each of the term holidays, for three weeks in the long summer vacation to be taken in separate two week and one week blocks and on special occasions and Jewish holidays.
99. Counsel for the father described the father’s proposal if the children relocated in the following terms:

[Counsel for the father]: Yes. As I say, this is the part my client doesn’t like, your Honour. I had to reassure him that when I tell your Honour this, this doesn’t mean we’re conceding anything; it’s just we’re covering all bases. Your Honour, if he doesn’t get the parenting orders, what he would seek is some extra time during the term 1, 2 and 3 school holidays – not the summer. The summer should be as per the orders that he put in his outline. There are 16 days in each of the term 1, 2 and 3 school holidays; he would ask your Honour for the first 10 days and the [mother] would have the last six. In terms of alternate weekends, your Honour, he would ask for from 5 pm Friday to 5 pm Sunday, and in terms of the midweek occasion he would ask for each other Friday from after school until 7 pm. So that is two occasions per week: a weekend and then an after school occasion.

Given that he will have to drive down to Gippsland on the after school occasion – the each other Friday – to pick them up from school, get them back by 7 pm – and we would suggest that as we don’t think there’s a McDonald’s in [Town O] that the return point should be the Woolworths car park or such other agreed place in [Town O]. As he will have to drive down to Gippsland to do that and back again he would ask that in respect of the weekends, your Honour, that the [mother] should bring the children up to Melbourne to [Suburb F] McDonald’s on the Friday and then pick them up from [Suburb F] McDonalds on the Sunday and that will achieve an equal sharing of the burden of travel.

He would ask your Honour that the weekends – the alternate weekends – the orders should include any non-school days immediately before or after such weekends, including – teachers often take the Monday before Cup Day as a curriculum day or something else – including the Tuesday if Monday and Tuesday are non-school days. He, of course, would ask for the Jewish holidays that he has set out in his outline, and I don’t believe that to be contentious. I should mention to your Honour, in relation to the term 1, 2 and 3 school holidays – is that his parents will be part of that. Either they will go to Sydney and spend time with his parents or his parents will come down from Sydney, as I’m instructed has happened in the past.

And the only other thing I need to tell your Honour is that in our outline, in the orders sought, which – the particular order I’m referring to is 19(a), which appears on page 16 of my client’s outline of case. It refers to notice being given prior to the commencement of interstate travel. He would like that amended to “away from home travel”, your Honour – a very minor point, I know. A very minor

(Transcript of proceedings, 17 July 2015, page 198, lines 39 – 47, page 199, lines 1 – 28)

100. Comparison of these two proposals demonstrates significant agreement between the parties, if the parties lived 85 kilometres apart, about the type of arrangements which would be reasonably practicable.
101. As has already been mentioned, the time orders largely coincide with those which the father advanced. Although the father did not concede that orders along these lines amounted to “substantial and significant time”, we are satisfied they are. The practical effect of the orders is that during school term, the children spend time with the father every week, for a full weekend every second weekend and at school events that parents normally attend. Provision is made for telephone and facetime contact and also for block periods in school holidays and on the special occasions identified in the orders. In relation to the effect these arrangements would have on the children’s relationships with the father the primary judge said at [187]:

I am also satisfied that their current close and loving relationship with the [father] would continue in the event of relocation albeit not at the optimal level that the [father] would seek occur.

102. It can be seen, therefore, the primary judge considered not only the amount of time the children would spend with the father but also its significance in terms of the children’s relationship with him and the extent to which he would be involved in their lives. Her Honour thus considered both the quantitative and qualitative elements of “substantial and significant time”.
103. This ground is not made out.