It is often difficult because of the need to strike a balance between the freedom of one parent to move and the right of the child to spend time with both their parents regularly. Achieving both objectives is extremely hard and because of the nature of each of the parents’ proposals there is often little room for compromise.
Judges often find relocation cases difficult to determine as often both parents have valid reasons for their proposals. Often the parent wanting to relocate wishes to do so for work or family related reasons, including moving with a new partner or returning home to access family support.
In a recent decision of the Family Court of Australia, the Full Court have provided highly relevant and somewhat controversial guidance as to the meaning of ‘substantial and significant’ time in the context of short distance relocations.
In the case of Ulster & Viney (2016) FLC 93-722, a father appealed against orders made permitting the mother to relocate with the parties’ two children from Melbourne to Gippsland, an approximately 90-minute drive from the father’s home.
The travel time between the father’s home and the mother’s relocated home in this case was similar to the travel time between Brisbane and the following destinations:
- The Gold Coast
- Tweed Heads
- Toowoomba
- The Sunshine Coast
Before the mother was allowed to relocate, the children had been spending 6 nights a fortnight with the father for the past 12 months.
The relocation resulted in the time which the children spent with the father reducing to only 2 nights a fortnight. By way of compensation, the Court made orders for the children to spend significant holiday time with the father.
The primary judge found that those Orders, although reducing the children’s time with the father significantly during the school term to effectively alternate weekends, nevertheless constituted substantial and significant time.
It is somewhat of a myth that substantial and significant time is anything between 4 – 6 nights per fortnight with the non-primary carer. However, the definition contained in the Family Law Act only requires that time includes time which:
- occurs on weekends;
- occurs on holidays;
- also occurs at times other than on weekends or holidays;
- allows the parent to be involved in the child’s daily routine;
- includes occasions of particular significance to the child; and
- includes occasions of particular significance to the parent.
The father appealed against the orders, arguing that he was clearly unable to be involved in the children’s daily routine if he was unable to be involved in the children’s attendance at school, preparation for school, supervision of homework and the like.
The majority of the Court disagreed with the father and found that even though he was not involved in the children’s day to day routine, for time to constitute substantial and significant time in the context of a divided family it does not require daily physical association with each and every procedure or activity that occurs each day or each weekday.
A dissenting judge of the Full Court disagreed with the majority, and instead agreed with the submissions of a well-known Senior Counsel appearing for the father which included:
“In the context of this case the time spent under the proposal is neither substantial nor significant”
“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.”
“The orders proposed by the [mother] fall short of orders that allow such a balanced and rich relationship with their Father.”
“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”
This case could have potential ramifications for anyone in the midst of, or contemplating a short-distance relocation, such as Brisbane to the Gold Coast/Sunshine Coast, or Brisbane to Toowoomba.
We have extensive experience in helping parents to navigate the nuanced issues concerning making a proposal to relocate with their children or resist the other parent relocating – both within Australian and internationally.
We have also assisted many parents to negotiate an agreement to relocate without the need to go to Court.