Christmas is a special time. However, Christmas can also be a very stressful time. Emotions are heightened. Combined with the consumption of alcohol, it can also be a volatile time for separated families.
Hopefully, parents have child custody arrangements for Christmas and the summer holiday period, in place. If you had them in place, but those arrangements are no longer viable, you will have to file an urgent application to the Federal Circuit & Family Court of Australia, for orders, regarding the care arrangements for the children over the festive season and for the end of year school vacation period. Ordinarily, such applications should have been filed with the Federal Circuit & Family Court of Australia by Friday, 11 November 2022, but if changes have occurred and you can’t agree on those arrangements, you will have to seek an urgent hearing, seeking orders.
Matthews Lawyers recommends that you negotiate an agreement.
Negotiating Care Arrangements for the Child/ren
Parents are urged to focus on the best interests of the children. Where possible, the child/ren should be able to spend quality time with all important family members. However, this can be difficult for separated parents. Each parent’s family may have similar traditions – Carols by candlelight on Christmas Eve, waking up and opening presents on the morning of Christmas Day, lunch in the afternoon of Christmas Day, and so on.
One very common arrangement (or compromise) is to split the time over the Christmas period, where children spend Christmas Eve with one parent and then wake up in their household on Christmas Day before a changeover before lunch for the children to join in their Christmas Day celebrations, staying overnight into Boxing Day. Each family is unique and has its own customs and conventions. You should remember that the child/ren love both parents and focus on ensuring that they have a stress-free Christmas season, where they feel loved and valued by each parent and the extended family on both sides. What arrangements are made by consent or ordered by the Federal Circuit & Family Court of Australia, are required to comply with the provision in the Family Law Act 1975 (Cth) that requires that their best interests are paramount. The older the child, the more weight will be given to his or her wishes. Make Christmas a happy one for the children. The Family Law Act 1975 (Cth) gives children rights. Parents have obligations.
There is no “right” way to celebrate the holiday season. Arrangements should consider the best interests of the child/ren in the context of your family’s traditions to ensure that – as much as possible – “all is calm, all is bright.”
Changeover on Christmas Day
The driving involved with handover so that the child/ren can spend time with the other parents, is often stressful for the parents and the children, but it is the obligation of the parent to ensure that the child/ren spend time with the other parent. Be calm and civil during handover. Hostility will cause stress and anxiety for the child/ren. Christmas shouldn’t be dreaded by a child. A child should never be scared that his or her parents will fight on Christmas day, or ever.
School holidays
In many families, parents agree that the child/ren spend(s) half of the school holidays with each parent. As each family is unique, how this occurs has many variations. It may involve spending alternate weeks with each parent, or half with one parent and the other half with the other parent, or 3 to 4 days with one parent and the remainder with the other.
For some families, it may be appropriate to continue their ordinary arrangement during the school holidays, save for the Christmas period.
Travel – Overseas, Interstate or Intra-state
Decisions about travel usually require the consent of both parties, as it is assumed at law, that the parents have equal shared parental responsibility. If you cannot agree on travel arrangements during the festive season, you will need to file an urgent application with the Federal Circuit & Family Court of Australia, seeking orders allowing you to travel with the children. This will usually involve make up time with the other parent upon return.
It is common for parents to want to take advantage of a longer period of time with the children (during which they’re not at school) to travel. Do not take the children overseas without the knowledge and consent of the other parent? Ideally, discussion about this will already have occurred and consented to, but if not, you should make an urgent application to the Federal Circuit & Family Court of Australia, seeking permission to travel overseas, interstate or intrastate.
Where parents live long distances apart
It is usually impractical for Christmas festivities to be split between each parent where the parents live many kilometres apart – overseas, in another state or simply hundreds of kilometres in the same State. In this scenario, it is common for parents to have the child/ren for alternate Christmases.
School holiday time, often involves the child/ren spending most of that time with the distant parent, to offset the child/ren not being able to spend time with them more often during the school year.
Children have a right to have a meaningful relationship with both parents – regardless of where they live.
Communication is the Key
There is no golden rule for separated parents arranging time for the child/ren with the other parent. The key is to communicate clearly, respectfully, civilly and early. Negotiate and compromise. Where you can negotiate an outcome, you will get the arrangements that you want. If you cannot agree and the matter requires court proceedings, orders will be made. Where the Federal Circuit & Family Court of Australia, has to make orders because the parents cannot agree, it is likely that one or both parents will be unhappy with the orders that are made. Negotiating an outcome between yourselves is free. If litigation is required it can be expensive and frankly is a cost that can be avoided, with common sense goodwill negotiations between parents for the benefit of the child/ren. The agreement reached should always be in writing.
The agreement should specify the dates and destination of the travel and an itinerary given to the other parent with contact details, should contact during the period of travel be required. Decisions about travel usually require the consent of both parties, as it is assumed at law, that the parents have equal shared parental responsibility. If you cannot agree on travel arrangements during the festive season, you will need to file an urgent application with the Federal Circuit & Family Court of Australia, seeking orders allowing you to travel with the children. This will usually involve make up time with the other parent upon return.
Dos
- Do follow the terms of any Parenting Plan or Consent Order, with respect to the parenting arrangements for the children. If you do not follow the terms of any Parenting Plan or Consent Order, you could be found to be in breach of Orders if you have them.
- Do arrange a Family Dispute Resolution Conference (Mediation) with the other parent if you have not been able to reach any agreement, with respect to the parenting arrangements for the children or if you want to change the current parenting arrangements.
- Do arrange to formalise any custody and access arrangements by way of a Parenting Plan or Parenting Order. Unless the future care arrangements have been turned into Court Orders, they are not enforceable, if one party breaches the agreement.
- Do get specialist Family Law legal advice if you are contemplating separating or have separated.
- Do follow the terms of any Intervention Order. Christmas does not provide you with an exemption from following the terms of the Intervention Order. If you breach the terms of a Protection Order this is a criminal offence. Imprisonment is an option available to the Court for breaching it.
Don’ts
- Don’t take your children overseas without the written agreement of the other parent if you have a Parenting Order in place which doesn’t allow for such travel or if an Application for a Parenting Order has been filed in the Court. If you do, this is an office punishable by imprisonment for up to 3 years.
- Don’t run out of time. If you have a time limit approaching for property settlement or maintenance matters file court proceedings. You must file property settlement proceedings within 12 months from the date of divorce. After this period, you will need the consent of the Federal Circuit & Family Court of Australia, to file property settlement proceedings.
- Don’t commit any acts of family or domestic violence including against your partner or children and do not expose your children to domestic violence. Domestic violence has a very broad definition and can include not only physical abuse but can also be emotional or psychological abuse and economic or financial abuse.
- Don’t denigrate the other parent in the presence or hearing of the children. In addition, don’t allow or encourage others to do so.
- Don’t unilaterally relocate the children’s residence without the consent in writing of the other parent or without a court order if such relocation would make it significantly more difficult for the other parent to spend time with the children, e.g. relocating the children’s residence from South Australia to another State or Territory. The Federal Circuit & Family Court of Australia, could order you to return to your previous address. You cannot do anything that will jeopardise, interrupt or undermine the right of the child/ren to have a meaningful relationship with the other parent.
LET MATTHEWS LAWYERS HELP YOU
We are experienced in family law matters – children’s issues and property settlement. We will do everything to help you resolve your issues by way of consent orders after negotiation. Where agreement is not possible, one of our experienced family law practitioners, will help you to navigate the court process.
Call our office 0401 269 091 to speak with one of our experienced family law practitioners.
Disclaimer: The information contained in this Information Brochure is of a general nature only and not a substitute for legal advice. It should not be relied upon. You should seek legal advice, specific to your circumstances from a legal practitioner.