Christmas - Shared parenting.

Where will the children spend time this Christmas? Agreeing (and enforcing) parenting plans over the holidays

The Christmas holidays are fraught for many separated families. Parents often struggle to decide who will have the children for Christmas Day. 

Generally, parenting Orders will include specific arrangements for ‘special days’, including birthdays, school holidays, and Christmas/New Years. It is common for children to spend alternating Christmases with each parent in even or odd years. Alternatively, they might spend the morning with one parent and the afternoon with the other, or have some other arrangement that works for the family’s particular circumstances.

If there are no Court Orders in place, and the parents don’t get along well enough to work out an informal solution together, problems may arise. Some parents simply decide to keep the children over Christmas, regardless of what the other parent wants – after all, who is going to stop them from spending time with their own children? 

A common trend over the Christmas period is a large uptick in Child Recovery applications. This is the application you would bring if your children’s other parent has taken the children and is refusing to return them to you. For a parent wishing to withhold their children, the holidays are an opportune time, with schools closed, police increasingly busy, and other family members perhaps out of town. 

In addition to smaller disagreements about where the children should stay, it is sadly not uncommon for parents to remove their children from the country without the other parent’s permission. These fears often begin to crop up around the holidays, when parents take their families abroad to visit relatives or to go on holiday. 

If your children’s other parent attempts to take them away without your consent, whether interstate or out of the country, there are a number of steps that can be taken. Australia’s Family Courts remain open for urgent applications for almost the entire Christmas period. If proper procedure is followed, these applications can be listed urgently:

·       Applying for an injunction to prevent a parent from relocating with the children, or a recovery order requiring them to return the children;

·       Applying for a location order, to attempt to ascertain the children’s whereabouts;

·       Having the children placed on the Australian Federal Police Watch List, if there is a risk of them being taken out of the country. This will prevent them from leaving any airport or seaport in Australia.

Any of the above steps can be complex, and potentially slow despite every attempt at urgency. There is no guarantee of success, especially if the children have already been relocated. It is also important to note that the Court will generally not act urgently unless there is evidence that the children are at some risk of harm. 

For smaller, more local disagreements, or where there is no real risk to the children, it can be very difficult to obtain these sorts of Orders. Despite the best intentions of the parents to arrange things informally, parenting plans or agreements are not generally enforceable.

If you and your ex-partner have an informal agreement already in place, you can apply to the Court to have the agreement made into Consent Orders, which are enforceable. This gives you the option to apply to the Court for remedies if the agreement is breached, ranging from makeup time with the children to fines or even imprisonment if the breach is serious.

Although the Court process can be daunting, having Orders in place opens up a number of remedies that would otherwise not be available. If you are in a shared parenting arrangement, and anticipate disagreements over the holidays, it may be worthwhile having Orders in place in advance of the holidays. If you have any concerns that your children might be taken out of the country without your consent, it is strongly recommended that you reach out to a lawyer for advice about ways to prevent this.

Even if no Orders are in place yet, simply commencing Court proceedings can bring some assurance. Once an application has been filed in Court, neither parent may take, or keep, the children outside of Australia without the other parties’ written permission, even if no Orders have been made yet. The Family Law Act makes this an offence punishable by three years imprisonment.

If you are concerned about a parenting dispute disrupting your Christmas holidays, we hear you. Voice Lawyers can help you to find a solution that’s right for you, whether that’s an informal parenting plan or an application for Court Orders.

If you require Court Orders as to parenting arrangements over the December/January holiday period, the last day to file an application is Friday 12 November 2021. Non-urgent applications filed after that may not be heard until after the holidays have already begun. If you need assistance with obtaining parenting Orders, please do not delay in contacting us on (02) 9261 1954 or voice@voicelawyers.com.