Recent full court decision where the father appealed against final parenting orders which permitted the mother to relocate the children from Melbourne to regional Victoria

In Ulster & Viney [2016] FamCAFC 133 (28 July 2016) the Full Court (Strickland, Ainslie-Wallace & Ryan JJ) heard the father’s appeal against an order of Judge Bender permitting the mother to relocate with children of 9 and 7 from Melbourne to Gippsland.

The case provides guidance as to the Meaning of “daily routine” in the context of matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant. Dealing with this issues, His Honours commented,

“[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.

( … )

[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. ( … )

[102] … [T]he 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’.”

Strickland J dissented, allowing the appeal, saying (from [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) … 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 in Eddington and Eddington (No 2) [2007] FamCA 1299 ( … )

[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 … 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:

‘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.

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.”

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