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Family Law

Christmas co-parenting: the legalities

By December 1, 2021February 23rd, 2024No Comments
Christmas co-parenting

If you’re separating or divorcing, the festive season can certainly loom as rather less than festive when you have to civilly liaise with an ex over how to carve up Christmas time with the kids. Hopefully, given how close we are to Christmas, you’ve already given thought to the logistics of your Christmas parenting arrangements this year. If this isn’t your first rodeo, you’ve probably already established arrangements that work well for everyone. But if it’s all fairly new, your first Christmas apart can be very hard. So here’s what you need to remember about the legal side of Christmas co-parenting as well as our tips for splitting the festive season across two households, and making sure Christmas is still a happy time for your kids.

Making practical and lawful arrangements

Firstly, if you have court orders in place, check if they cover Christmas and the holiday period. Holiday contact orders for kids are routinely made in court orders. The uniqueness of the Christmas period means special consideration is given to making arrangements that work best for the kids and enable them to enjoy the festivities with the least amount of stress. So make sure you understand any legal obligations you have and follow orders to the letter, unless you and your ex-partner have an agreement to vary the orders.

If you don’t have orders in place, consider seeing a family lawyer who will help you reach a sensible agreement with your ex and create a parenting plan, a written document detailing how you intend sharing child care and parental responsibilities, including over the Christmas period.  A parenting plan can be flexible to take into account a child’s changing developmental needs, and makes a good enduring co-parenting solution.

If a parenting plan isn’t likely to be achieved however because you vehemently disagree on arrangements for the kids or because you struggle to be on speaking terms with your ex, you may feel you need to go to court. Unfortunately, the cut-off date for filing applications in the Federal Circuit and Family Court of Australia (FCFCOA) that would ensure a hearing date this year was allocated has passed.

If you would like to formalise arrangements for spending time with your children this Christmas, your best bet now is to agree to a parenting plan and come to an informal, workable arrangement in the meantime with your co-parent. We can help you in communicating with your ex-partner to reach an agreement, even if it is a temporary agreement that just covers the school holidays and Christmas and even if that is only for this year, allowing the two of you to continue negotiations next year about the ongoing arrangements.

Is urgent mediation possible?

In most cases, family law disputes are able to be resolved through mediation and with the help of skilful negotiation by family lawyers. The earlier you invite your co-parent to mediation the better.

If you have trouble finding a mediator that is available this year, you could also try a family lawyer. Both family lawyers and mediators can assist with helping you and your ex agree on a formula for contact arrangements for the Christmas holidays that works for you both. If you do access mediation and are able to achieve agreement, the next decision is whether or not to formalise your agreement with consent orders or a parenting plan, which a family lawyer can help you with.

If you come to an agreement informally with your ex, or without the assistance of a family lawyer, make sure you record specific agreements in writing. Arrangements need to be practical and it’s likely you’ll need to be flexible and be prepared to compromise in some regards. Remember that it’s always about what’s best for the kids, not what you think is “fair” for you.

How to best divide Christmas time

There’s no right way to divide Christmas time and it will depend on each parent’s individual and family routines.

Some parents find it helpful to give children two “Christmases”— on both Christmas Eve and Christmas Day, or Christmas Day and Boxing Day. Most kids love the idea of having two Christmases and double the fun. Sometimes it works if one parent has the children from, say, 4pm on Christmas Eve til 4pm on Christmas Day, with the other parent having the children from 4pm on Christmas Day til 4pm Boxing Day, so enabling both parents to spend time with the kids on Christmas Day itself. For other parents, this is too impractical due to driving arrangements and they may agree for the children to spend Christmas Eve through to Boxing Day with one parent and have that alternate between the parents each year. Other parents agree to split up Christmas morning and Christmas lunch so that the children get to spend substantial time with each parent on Christmas Day.

If you’re not going to see your children on Christmas Day, think ahead about setting up Skype or Facetime or even preparing a video message for your children on a phone so they can see you on the day.

Christmas co-parenting and travel

Regarding Christmas and school holiday travel, the main thing is to make sure it’s all legal.

Travel within Australia

In most parts of Australia, further mass lockdowns due to the COVID-19 pandemic are regarded as unlikely, though there may be spot lockdowns in vulnerable areas. For the majority of parents though, there should be no restrictions that would prevent children travelling between separated parents (unless a parent is self-isolating).

Overseas travel

Overseas travel is still limited. If you are considering travelling overseas with the children, under section 65Y of the Family Law Act 1975, if you are a parent involved in current court proceedings, you will need to obtain the other parent’s written consent before you can remove your child from the court’s jurisdiction, regardless of how short your trip is intended to be. Even if you are not in Court, you should obtain the other parent’s written consent. We encourage clients to try to amicably obtain the written consent of the other parent before making any travel arrangements. If you come to an agreement informally with your ex (without the assistance of a family lawyer) make sure you record specific agreements in writing. 

If travel consent is not given, you’ll really need to file through the courts to have travel plans permitted by way of orders, but this just won’t happen in time for the upcoming Christmas period, unless there are urgent circumstances. 

Preventing travel

On the other hand if you are wishing to prevent your child travelling overseas or there is a chance of a child being abducted or in cases involving family violence, it may be possible to have an application listed as urgent, sometimes on an ex parte (without the other party being present) basis.  

Other urgent matters

You may also be seeking to apply for urgent orders in relation to preservation of assets or other injunctive relief in relation to a property matter, such orders issued when courts will not have the time to look into the matter in the usual way.

Even if you didn’t make applications in time for the filing deadline this year, don’t fret over the possibility of a family law situation arising over the festive period with which you might need help from the family courts. You will still have remedies. Although physical registries will be closed for given periods, urgent matters can be dealt with by judges in interstate registries remotely.

Find out all the details of FCFCOA registry Christmas operations here.

We can assist you with urgent family law and Christmas co-parenting matters that may arise over the holiday period, such as preventing the removal of your child from the jurisdiction of the court, recovery orders, or injunctive relief in property matters. Please take note of our contact details, in case you find you do require urgent family law related legal help over the Christmas period. In addition to our office landline, our office mobile number 0420 312 114 will be monitored frequently. If the phones are not answered, please leave a message and we will return your call as soon as possible.

If you need assistance with any of the Christmas co-parenting matters discussed above, or any other family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.

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