With Christmas approaching, my partner and I have recently separated. How do we decide who gets the kids during the holiday season?

This is a common question we hear from separated parents. For those who are newly separated, navigating child arrangements during the festive period can be especially challenging and stressful.

With this in mind, there are some things separated parents can do to reduce stress and make the most of the festive season.

Reaching an agreement on arrangements for your children

There are several important considerations to keep in mind when negotiating arrangements for your children over Christmas and other special occasions:

• It is best to initiate discussions and plan your arrangements early.
• Ensure your agreement sets out clearly the times and locations for your children on Christmas Eve, Christmas Day and other important days or events during the summer holiday period.
• To avoid confusion and to help minimise conflict, try to put the agreed arrangements in writing.
• To ensure that children are dropped off on time at a changeover, consider factors such as the distance to be travelled and how long it will take to get there.

The aim should be a practical and child-centered arrangement, which may mean compromising ultimately on what the parents want. An alternating arrangement is a common approach – for example, the children may spend from noon Christmas Eve to noon Christmas Day with one parent and from noon Christmas Day to noon Boxing Day with the other.

Family Dispute Resolution services can help reach an agreement

It is understandable that reaching an agreement can be difficult when parents have recently separated. If parents are unable to reach an agreement through informal negotiations, the next step is to attend a Family Dispute Resolution conference (FDR). This specialised form of mediation assists separated families in finding mutually agreeable solutions. Here, a mediator third party will assist parents in having a productive conversation with the aim of reaching an agreement. This process occurs outside the courtroom, at a venue mutually agreed upon by the parties. Where possible, arrangements for FDR should be made well in advance of the holiday period, as availability is often limited during this time.

What to do if Family Dispute Resolution fails

If FDR is unsuccessful, parents can apply to obtain parenting orders for Christmas arrangements from the Federal Circuit and Family Court of Australia (the Court). Every year there is a deadline by which applications for orders relating to the school holiday period beginning in December and ending in January must be filed. This year (2024), applications must be filed by 4:00 PM on Friday 8 November 2024. Applications filed after this date will be heard by the Court after Christmas, unless the matter is deemed an emergency, such as cases involving family violence or child abuse.

What to do if a parenting order is breached

Parenting orders are legally binding on the parents to whom they apply. If a parent believes that the parenting order has been breached by the other parent, they can make a Contravention Application to the Court. The Court will decide whether the alleged contravention was established, and whether there was a reasonable excuse for the breach. Depending on the facts of the case and the severity of the breach, the Court may penalise a party by making various orders including that they provide make-up time for the other parent, pay a fine, or participate in community service.

Interstate and overseas travel

During the holiday period, circumstances may arise when one parent wishes to travel interstate or overseas with the child. When there is no pre-existing parenting order in place, parents should communicate with each other about travel and attempt to reach an agreement.

If a parent believes their child has been taken overseas without consent, a few options are available. Firstly, if the parent believes that the child’s welfare and safety has been compromised, the matter must be reported immediately to local police. The next step is to contact the Australian Federal Police (AFP) for advice on placing the child’s name on the Family Law Watchlist. This will ensure that police are notified of any attempts to remove a child from Australia contrary to any court orders.

In these circumstances it is also advisable for a parent to obtain legal advice. A lawyer can assist in obtaining a recovery order, which is provided to all officers of the AFP and all state and territory officers to help locate and recover the child.

It is important to remember that it is a Commonwealth offence for a person to take or send a child from Australia in contravention of an order that limits or prevents the child’s overseas travel, including while court proceedings for a parenting order or an appeal against a parenting order are pending.

What to do if things go wrong over the holiday period

• Seek advice from a lawyer.
• If you feel you or your children are unsafe, you should contact the Police on 000.
• Ask for help. There are many support services available, including:
• 1800 RESPECT (1800 737 732) – Support services for people who have experienced domestic, family, or sexual violence.
• Lifeline (13 11 14) – a 24/7 National Crisis Support Line that offers support for victims of family violence.
• Relationships Australia (1300 364 277) – Support, family violence prevention and counselling services accessible to all Australians.
• Kids Helpline (1800 55 1800) is a 24/7 online counselling service for people ages 5 to 25 who may have experienced or be experiencing family violence.

If you require legal assistance with parenting decisions during the upcoming holiday period, please contact our office on 03 9670 4122 to arrange a consultation. Our lawyers are skilled at assisting clients with a range of parenting issues including child arrangements for Christmas Day and the school holiday period.