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Key decisions

  • Ulster & Viney [2016] FamCAFC 133
  •  Bircher and Anor [2016] FamCAFC 123
  • Paxton [2016] FCCA 1689
  • Lokare & Baum [2016] FamCAFC 135


Full Court holds that alternate weekends, special days and holidays amount to ‘substantial and significant time’

In Ulster & Viney [2016] FamCAFC 133 (28 July 2016) Ainslie-Wallace & Ryan JJ dismissed the father’s appeal against Judge Bender’s order allowing the mother to relocate from Melbourne 85 km away to Gippsland where she obtained work. From separation the children spent alternate weekends and Thursday nights with the father, as well as two hours on alternate Mondays to coincide with the children’s piano lessons in which he was ‘keenly involved’ (at [43]). This continued until the mother relocated two months later without notice. The father withheld the children, negotiating an interim order for six nights a fortnight (the mother returning to Melbourne), but at the final hearing a year later, his time was limited to alternate weekends, alternate Fridays (after school to 7pm), special days (Jewish holidays) and school holidays.

While the whole court disagreed that ‘daily routine’ under s 65DAA(3) requires seeing the children every day (as argued for the father) the majority rejected his contention that the final order was not an order for ‘substantial and significant time’. Strickland J dissented, saying (at [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 … 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 … “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  … 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.”’

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