Those of us who have been practising long enough will recall the impact on the ‘Equal Shared Parental Responsibility’ legislation in 2006 and the requirement for the Court to then consider equal shared time.  Though that requirement has been removed from the Family Law Act with the recent amendments there are still those who pursue equal time, regardless of what is in the best interests of children or the prospects of succeeding with such an application.  Similarly, there are those who oppose significant time with the other parent without considering the needs of the children.  The Court is then left with having to make a decision that likely neither party will be happy with and one wonders whether it is sometimes just a case of meeting in the middle of the parties’ proposals.

The Division 2 case of Amiti & Vata  [2025] FedCFamC2F 476 involved two children aged approximately 10 and six by the time of the proceedings in early 2025.  The parties had, in fact, been separated since 2020, with ad hoc arrangements since that time.  Those arrangements only provided for one afternoon and one overnight per week.  Those arrangements were likely to have been entirely suitable at separation when the children were very young but the mother appeared resistant to any change.  In addition, there had been a breakdown in the co-parenting relationship stemming from the parties’ financial arrangements.  Accordingly, the father commenced proceedings seeking an equal time arrangement of seven nights per fortnight.  The mother’s response to that was to propose two nights per fortnight, essentially no more than was already happening.  Neither party alleged any unacceptable risk factors although there was some concern that the mother had returned to using illicit drugs.  

The Senior Judicial Registrar (“SJR”) hearing the father’s application made Interim Orders that were somewhat convoluted but worked out to be six nights per fortnight with the father, a significant increase to the time that the children had been spending with him.  The mother then filed an Application for Review of those Orders.

On review before Her Honour, Judge Taglieri, found that both parties were responsible for the breakdown in the parenting relationship.  On the one hand the father was clearly in breach of the financial agreement which had caused the mother significant distress and that, as a result, she had acted somewhat badly, at least in a way that was not in keeping with the past good co-parenting relationship.  However, the change in financial arrangements requiring a sale of the property in which the mother and children had been residing and a necessary change in the children’s schooling, from a private school, meant that the parents were now residing approximately one hour apart in travel time.  Her Honour considered that the increase from the previous time to six nights per fortnight was too big of a leap, notwithstanding that it had already commenced, and reduced the time to four nights per fortnight, essentially in the middle of the parties’ proposals.