Happy Holidays for some, but not for all
9 December 2019
By Lisa Wagner & Anthony Saba
It is that time of year again when parents frantically purchase last minute presents, are subjected to holiday songs and generally spending time with their extended families and share a lovely meal with one another. Parents are also busy rushing to Chatswood Chase, Northbridge Plaza or now even Balmoral Beach, Mosman to have a photo taken of their children with Santa.
However, for some families with separated parents, the holiday season can be an emotionally fraught time which results in sadness, disappointment and discord where children may be caught in the middle.
Some of the issues which may arise in the lead up to the holidays can include:
- The other parent changing their mind about existing parenting arrangements without consultation;
- The absence of Court Orders which set clear boundaries; and
- A parent deciding that they will not encourage the children to spend the holidays with the other parent, as a result of recent behaviour (whether such behaviour is reasonable or not).
So what happens when disagreements arise which jeopardises your children spending an enjoyable holiday with you? Well there are certain steps separated parents can take to ensure that this does not occur. They are explained in greater detail below.
Out of Court
When one party is being difficult, sometimes a simple letter from a solicitor reminding a parent of their obligations pursuant to existing Court Orders (if any) or to the Family Law Act, is enough to put things back on track.
Please remember, at all times, to remain child focused and ensure that the best interest of the child (or children) are of paramount importance.
If you do not want to get lawyers involved, then you are also able to negotiate with the other parent either by yourself or with the assistance of a mediator. Should you take this approach, then you should be mindful of the following when communicating with one another:
- Try and come up with a plan ahead of time – Whilst Court Orders are often preferable (given their enforceability), sometimes a parenting plan or a written proposal to the other parent is a helpful way to minimise potential conflict for both parents and more importantly for the children.
- Make sure you know where you stand legally – Under the Family Court system, there is no entitlement to an equal division of time for Christmas holidays. Instead, each case is determined on the individual circumstances.
From a practicable perspective, the best thing for both parents is to remember that this time of year is about the children and their happiness, which usually involves the children spending time with both parents (provided it is safe to do so). This means that you will need to try and consider what arrangements will be best for the children ahead of your own interests or feelings.
- Communication – Sometimes parents cannot effectively communicate with one another without it resulting in conflict. In those cases, parents should implement a different method of communication such as a communication book or contact via email or text message. Whichever method you decide to use, the aim is to shield the children from the conflict between yourself and the other parent so as to prevent irreversible harm caused to your children’s emotional and psychological wellbeing.
- Remain child focused – A lot of family lawyers advise their clients to remain ‘child focused’ and whilst it may seem like an obvious and simple piece of advice, it is the most important and often one concept some parents have difficulty in grasping.
One of the ways you can remain child focused, is to remember that this time of year is supposed to be one of joy and happiness for children and therefore it is important that they are protected from any potential conflict from you and the other parent. By exposing them to any conflict, you risk imposing unnecessary stress on children who may feel torn between pleasing both parents.
If you try to negotiate with the other parent without the assistance of a solicitor or third party and it is unsuccessful, do not give up. Instead, try and engage with either a counsellor or a family law mediator who can assist both you and the other parent in reaching an agreement. By having an experienced mediator or counsellor present it may assist both parents to remain focused on the children and can greatly assist in reaching fair agreement which benefits the children.
Going to Court
In the lead up to Christmas, there is a routine influx of parenting applications filed with the Family Court. Commonly, parents (understandably) begin to panic if they do not reach an agreement as to where, and with whom the children will spend Christmas.
Whilst Court is certainly an option available to parents, it should not the first point of call, rather it should be the last resort. More often than not, the best decisions for children are made by the parents rather than a Judge.
In the event an agreement cannot be reached without Court intervention, then it is important to remember that the deadline for filing an Application with the Court to deal with holiday arrangements is usually early in November of each year. While it may be acceptable to purchase last minute gifts, it is not advisable that a last minute approach be applied when dealing with children in the Court system. Of course, each year there are incidents that cannot be foreshadowed and you may be forced to file an urgent application with the Court. Whilst this does not automatically mean that your matter will be heard, there are occasions where the Court hears an application filed at very short notice.
Though it is important to be aware of that those incidents where a Court urgently hears an application filed past this deadline is the exception and not the rule. So if you are planning on making an application, it is important that you contact a family law solicitor as soon as possible and well prior to this deadline.
How Doolan Wagner can help
As specialists in family law, Doolan Wagner Family Lawyers, are highly experienced in dealing in each aspect of family law, including resolving holiday arrangements. Some of the ways we can assist include:
- Providing you with advice regarding any parenting proposal you may wish to raise with the other parent, including advising of experienced counsellors or mediators who can assist you;
- Writing a letter to the other parent reminding them of their obligations;
- Assisting you in the mediation process, including attending mediation with you (if required);
- Preparing and filing all necessary urgent family law applications, as well as, attending Court on your behalf; and
- Drafting Consent Orders or a Parenting Plan reflecting an agreement you may reach with the other parent.
If you or someone you know is facing difficulties with their parenting arrangement for the holiday season, please do not hesitate to contact us on (02) 9437 0010 or send us an email at email@example.com to discuss your matter in complete confidence. Doolan Wagner Family Lawyers offer specialist family law advice, conveniently located in St Leonards on Sydney’s North Shore. We have a team of experienced and caring professional family lawyers available to help you in this difficult time.
These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.