Kiddipedia
By Pamela Bachour
Senior Lawyer | Ivy Law Group
Christmas is a time for families and friends to come together and spend quality time with one another. For families going through a separation or a breakup, Christmas can be a hard time for both the parents and the children as they navigate a time of year when they would normally have spent all the time together. This results in heightened emotions and difficulty in coming to terms with sharing their Christmas time.
Parents can often struggle to negotiate how the sharing of this time can be achieved, while at the same time attending all the numerous Christmas Day lunches and dinners, Boxing Day BBQs or even attending Church.
It is usually the case at Christmas (unless there are issues of risk, family violence or abuse, or Court Orders to the contrary) that children will spend time with both of their parents. Any Parenting Orders that are made by the Federal Circuit and Family Court of Australia, whether by Consent or as decided by a Judge at an interim or Final hearing, will capture the Christmas Holiday period in the orders relating to “special occasion time” or “School Holiday time”.
If you have Court orders in place
Having yourself a set of precisely worded Court Orders (orders) that are binding on both parents is the best way to ensure there is certainty at Christmas.
If you have a Parenting Plan in place
If you have attended Family Dispute Resolution (FDR) (e.g., mediation) previously, the Family Dispute Resolution Practitioner (FDRP) would have suggested or assisted with including Christmas Arrangements in a Parenting Plan (Plan). While the arrangements set out in a Plan are not binding on parties, at least you have a written agreement in place that both parents will (hopefully) comply with. It also means that if one party wants to vary the Plan you have a starting point to work from.
Even if you do have Orders or a Plan in place, it is important to reach out to the other parent well in advance of the Christmas Holiday period and confirm (in writing) your understanding of the orders or the Plan in your words. I.e., “So I’m going to be collecting the kids from you at 2.00 pm on Christmas Day, can you let me know where you will be so I can make the necessary arrangements”.
If there are no Court orders and no Plan
In circumstances where you don’t already have Orders or a Plan in place, then you are starting from scratch. This means you need to allow much more time to negotiate an arrangement with the other parent, and we recommend you start thinking about this months in advance. To ensure this negotiation process goes well, it is recommended that you:
- Allow yourself plenty of time to discuss this with the other parent.
- Try to reach or communicate with the other parent by different means of communication. That is, if you are unable to reach them by phone, or if conversations are becoming heated then you may wish to send a text message or email, as opposed to in-person discussions or conversations over the phone. Of course, this gives you the added benefit of having a record of the discussion and the agreement reached.
- If you have the funds available, you might like to engage with a parenting coordination service, who can act as the intermediary.
- Compromise is key. Remember Christmas is not going to look how it always had. Things are going to need to change or be moved around. This is going to be a great opportunity for new traditions to be made.
- Sharing can come in all different shapes and sizes. It may be that the children will spend the entire Christmas period with a different parent in alternating years; or otherwise that one parent will have the children on Christmas Eve and Christmas morning in one year, and thereafter Christmas afternoon and Boxing Day in the other.
- When making plans or proposing arrangements, remember Christmas is a time that involves the extended family too. Discuss your Christmas plans with the extended family well in advance so that the children are able to attend and spend time with both their extended families.
- Discuss the agreed arrangements with your children. Letting them know in advance where they are going to be and what is going to happen over the Christmas period can help to reassure them.
- Don’t stress over the little things. If this is your first Christmas post-separation, then chances are it is going to be tough without you worrying about whether you and the other parent agree on a joint Christmas present or the value of the present you are each going to buy. Remember this is not a competition. Surround yourself with family and friends and stay busy when the children are with the other parent or use the time to unwind.
What if you are in the midst of Court proceedings?
If you are in the midst of Court proceedings relating to parenting or otherwise if you are finding it difficult to negotiate Christmas arrangements with the other parent and are concerned that you will not be in a position to spend time with the children during Christmas time, it is recommended you do the following:
| If Court Proceedings are in progress | If there are no Court Proceedings |
| 1. Flag the upcoming Christmas period with your lawyer. | 1. Retain legal representatives to engage in the negotiation process on your behalf. They will write to the other parent or their legal representatives and make proposals on your behalf. |
| 2. Write to the other parent or their legal representatives (through your lawyers if you have them) noting the upcoming holiday period and make a proposal to resolve the issue of time with the children at Christmas. | 2. Invite the other party to attend at Family Dispute Resolution (FDR) to address the Christmas holiday or Summer School holiday period. |
| 3. Engage in negotiations with the other parent or their lawyer about possible options for time with the children at Christmas. | 3. Attend at FDR. If the other parent refuses to attend the FDR or no outcome is able to be reached, you can obtain a s60i certificate from the FDRP confirming that FDR has been attempted. |
| 4. If you are able to reach a negotiated outcome, approach the Court about making Interim or Final orders by consent relating to the Christmas Period. | 4. Commence court proceedings and seek interim orders relating to the Christmas and the surrounding school holiday period. As per Rule 5.03 of the Federal Circuit and Family Court (Family Law) Rules 2021 Interim Applications need to be filed before 4pm on the second Friday in November of that given year, and therefore the entirety of your Application needs to be filed before this time. |
| 5. If you are unable to reach a negotiated outcome then you can make an Application for an interim parenting order relating to the Christmas school holiday period. As per Rule 5.03 of the Federal Circuit and Family Court (Family Law) Rules 2021 these Applications need to be filed before 4pm on the second Friday in November of that given year. |
In urgent circumstances, where there is the possibility of children being withheld, including if a parent is failing to comply with Court Orders, then you may be in a position to apply for an urgent hearing, provided the relevant criteria is met.
If you would like further advice about your specific situation and how to manage the Christmas period, our experienced and friendly Sydney family lawyers are here to assist.
