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We're separated: Where do the kids spend Christmas?

Family Law: 22 March 2019

Christmas may be a time for family breakdown, but after separation it is even harder to arrange the day.  Each year the Family Court of Australia puts out a deadline (usually mid-November) after which it cannot guarantee applications for Christmas parenting time will be heard.  The smartest thing to do when planning Christmas is to make arrangements early. 

A verbal agreement between parents can be hard to prove down the track if one parent is forgetful.  Agreement by email or texting is one step better.  A parenting plan, which is essentially a signed and dated written record of agreed parenting arrangements, is not enforceable in itself but must be considered by a Court if an application for Orders is made.  Court Orders are enforceable and provide the best protection for Christmas times and other times you intend to spend with your children. 

Typical orders are to alternate arrangements each year.  The children may spend from, say, noon Christmas Eve to noon on Christmas Day with one parent, and noon on Christmas Day to noon on Boxing Day with the other parent, with the rôles swapping each year.  One parent wakes up with the children on Christmas Day, and the other shares the family Christmas lunch.  Variations for European families celebrating Christmas Eve, Orthodox families celebrating Christmas at a different date each year, or a family's particular function at a particular time, are commonplace.  A Court will look at past practice and behaviour, and practical compromises.

Some former partners, especially those recently separated or close to in-laws, are on good enough terms to spend some Christmas time together.  A parent may help prepare their children's presents for their former spouse.  A little goodwill can go a long way. 

Sometimes goodwill is all you will have.  A Court will not be impressed if you apply for Christmas Day parenting orders only, on 10th December.  Most likely a hearing will not take place before January or February.  Unless an exception such as urgency (urgency for Christmas Day is not enough), family violence or child abuse applies, a Court will not consider an application without the parents attempting Family Dispute Resolution counselling first.  At this counselling parents are able to discuss matters and enter a parenting plan.  They will receive a certificate at the end of the counselling.  If it is still considered necessary to go to Court, the certificate can be filed with the application.  Feel free to contact Aitken Partners' accredited family law specialists on 8600 6083 if you want to know more.

Many of us remember back to great Christmases of our own childhood and want our children to have similar memories.  For separated parents a little more preparation may be needed, but the rewards can be unforgettable.

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