It’s beginning to look a lot like Christmas: Your guide to Christmas and summer holiday child custody arrangements
Christmas is a special time (as Andy Williams famously sang, “It’s the most wonderful time of the year”) but it can be a stressful time. Emotions are heightened generally and often alcohol is involved in celebrations. For separated families in particular, this can be a volatile combination.
Reaching an agreement in plenty of time, about child custody arrangements for Christmas and summer holidays, is of course preferable for all concerned. However, if an agreement can’t be reached keep in mind that you will need to seek parenting orders from the Court. Applications must be filed to the Court by 11 November 2022.
So, what should you know when making decisions about Christmas and school holidays?
Reaching an agreement
First, remember that all arrangements for children should focus on the best interests of the children – if possible, children should get to spend quality time with all important family members.
Reaching an agreement can, however, 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, etcetera). However, the children can’t be with two different families at once to share in those traditions. We encourage parents to try and find an arrangement that meets everyone’s needs.
One very common arrangement (or compromise) is to split the time over the holidays, allowing the children to 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.
Often, the time with each parent will reverse each calendar year so that the children can experience events with both sides of the family each alternate year. This isn’t always the case though, and sometimes it better suits the families for each parent to always have the children the same time each year. For example, if one parent traditionally celebrates with their extended family on Christmas Eve and the other on Christmas Day. The children can then attend both celebrations each year with the respective parents.
There is no “right” way to celebrate the holiday season and any arrangement should consider the best interests of your children in context of your family’s traditions to ensure that – as much as possible – “all is calm, all is bright.”
Changeover on Christmas Day
All the “dashing through the snow” – or rather, through the sun-soaked suburbs in the peak of Australian summer – can be stressful for the parents and the children, but worthwhile if it means that the children’s memories of Christmas will ultimately be about family bonding and not family disputes.
Changeover on Christmas Day is another issue that can be vexed. It’s a good idea to ensure that changeovers are before or after your traditional get-together and not during, which can cause additional stress for children who feel like they are “missing out” and may also limit the degree to which parents are alcohol-affected.
If your family’s traditions are a bit “boozy”, parents should make arrangements ahead of time that take this into consideration. Remember, the Christmas holiday period is a dangerous time to be on the roads and all proper care and attention should be taken.
School holidays
Adding to the stress of Christmas can be school holiday considerations. We are perhaps lucky in Australia that Christmas falls not “in the bleak mid-Winter” but in the school summer holidays. However, this can cause additional end-of year disputes.
In many families, parents agree (or would like to agree) for their children to spend half of the school holidays with each parent.
For older children, that may involve spending alternate weeks with each parent or even longer periods of time, up to half of the holidays. However, younger children primarily attached to one parent are unlikely to adjust well to spending up to a week (or longer) away from that parent. Splitting up each week into three- or four-day alternating periods may be more age and developmental-stage appropriate for children who are not used to being away from parents for any considerable period of time.
For some families, it may be appropriate to continue their ordinary arrangement during the school holidays, save for the Christmas period. For example, this may be more suitable where children are very young or where both parents are required to work during the holiday period.
Travelling overseas or interstate
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 go travelling – maybe you’ve been “dreaming of a white Christmas”. Remember, however, that overseas travel is a decision about a “major long-term issue affecting the children”.
Where there are no court orders in place, those decisions usually require the consent of both parents as it is assumed the parents have equal shared parental responsibility. If there are court orders in place, these will usually provide for overseas travel.
Interstate travel does not carry the same obligations. Unless court orders require them to do so, parents usually do not have to notify the other parent of interstate travel during their time with the children. However, we encourage parents to do so out of courtesy, as most parents would prefer to know that this is occurring (and in all likelihood, the kids will spill the beans if you don’t).
Where parents live long distances apart
What happens for Christmas and holiday time where one of the parents lives interstate – or even overseas?
It is usually impractical for Christmas festivities to be split where the parents live far apart. Generally, the parents will each have the children for alternate Christmases.
For school holiday time, often parents who live far away will have a greater portion of the holidays to offset the children not being able to spend time with them more regularly.
The children have a right to have a meaningful relationship with both parents – regardless of where they live.
Clear communication with plenty of notice
There is no golden rule for separated parents arranging time during the school holidays, Christmas and for overseas travel. Communicate clearly and early. Negotiate and compromise. You can start broad and then narrow down to specifics, but don’t proceed on a vibe or assume the other parent knows details you haven’t clearly expressed.
If you can agree, and it isn’t already in writing, it’s a good idea to follow up with a text or email setting out the agreement – that will ensure that everyone is on the same page. It’s easy to think you’ve reached an agreement when, in fact, you haven’t.
Don’t forget to put the dates (and times and places) in your calendar and make sure that the children know what the arrangement will be – they can stress about the arrangement to.
If you really can’t agree
If you can’t reach an agreement and need the assistance of lawyers to negotiate or – worst case scenario – you need to seek parenting orders from the Court, don’t leave it too late.
The Federal Circuit and Family Court (Family Law) Rules prescribe a time limit for applications to be made by parents seeking interim orders for the summer holidays. If you file an application after that date seeking parenting orders that relate to Christmas or the school holiday period, then it will be allocated a hearing date set by the Court based on judicial availability (which will be scarce) and will, in all likelihood, be after the school holidays.
Applications must be filed to the Court second Friday of November; this year that is 11 November 2022.
With the assistance of experienced lawyers, often parents are able to put in place the best holiday arrangements for children without the necessity of applying to the Court. However, if an agreement can’t be reached, you don’t want to have missed the filing deadline. As such, it is best to approach lawyers as soon as practicable to give yourself the maximum amount of time to avoid Court.
Let us help you
If you find yourself in a position where you can’t agree – either at all or about a particular aspect of Christmas time or summer holidays – or it looks like you may run out of time to negotiate, please contact us as soon as you can.
We will endeavour to resolve the dispute quickly and without the necessity for court or, if it is clear no agreement can be reached, assist you to navigate the Court process before the cut-off date.
This article is by Andrew O’Sullivan-Newbold, Associate | Family Law and Emmalaura Messer, Principal Lawyer | Family Law
