The holiday season is meant to be a time of joy and celebration however, for parents navigating disputes as to their children’s care, it can present unique and often stressful challenges.
While end of year school holidays and the festive period are still months away, now is the time for parents to initiate discussions as to care arrangements so that if an agreement cannot be reached, there is still time to use dispute resolution services without feeling rushed to file a court application by the deadline of the second Friday of November.
Negotiating an agreement
One of the best things that you can do for both yourself and your children is to open dialogue about end of year time spending early. Start thinking about how care arrangements can be structured over the holiday period taking into consideration things such as your respective employment obligations and any desire either of you might have to travel with the children to visit family.
These arrangements should be approached through the lens of what is in the children’s best interests, even when this means compromising on what the parents want. What is in each child’s best interests will depend on a range of factors including their ages, the distance between the parent’s homes, the children’s wishes and any family traditions that may already be in place.
It is not uncommon for parties to agree to share school holidays and significant or religious or cultural observances such as Christmas Day and Boxing Day or Hanukkah, Orthodox Christmas or Luna New Year. This ensures the children have the benefit of spending at least part of these events with each side of their family.
These arrangements traditionally alternate each year so that over time, the children get to experience these events equally with each parent. For example, the children may spend from 3pm on Christmas Eve to 3pm on Christmas Day with dad and from 3pm on Christmas Day to 3pm on Boxing Day with mum, with the arrangement reversed the following year such that the children spend from 3pm on Christmas Eve to 3pm on Christmas Day with mum and from 3pm on Christmas Day to 3pm on Boxing Day with dad.
What if we can’t reach an agreement – should I file proceedings?
In circumstances where you have been present for every milestone and special occasion, it is an adjustment to come to terms with the fact that you might not see your children on special occasions such as Christmas morning. For this reason, navigating end of year time spending is usually a challenging and emotionally fuelled task, and agreements cannot always be reached by negotiation. In these circumstances, should you file court proceedings right away? The short answer is no!
Pursuing parenting orders through the Federal Circuit and Family Court of Australia is a lengthy and costly process and as such, initiating proceedings should always be considered an avenue of last resort. This position is recognised in the legislation, which provides that parties are only eligible to initiate proceedings for parenting orders in the Federal Circuit and Family Court of Australia once they have made a genuine effort to resolve the dispute by participating in family dispute resolution (unless there are issues of significant risk or other reasons justifying urgency).
Family dispute resolution is mediation that is conducted by a qualified Family Dispute Resolution Practitioner (FDRP). The FDRP is independent of both parties and their role is to assist the parties to discuss the issues in dispute and explore solutions for resolving some (if not all) of them. They cannot provide advice so it is important to speak with an experienced family lawyer before making taking steps to make an agreement reached at mediation legally enforceable.
Only if there is no appropriate dispute resolution service available to the parties, a party fails or refuses to participate in dispute resolution or the parties are unable to reach agreement by dispute resolution can a party give notice to the other party of their intention to start a proceeding.
What options do I have to avoid going to Court?
Whether you have failed to reach an agreement through family dispute resolution or already have family law proceedings underway, an experienced family lawyer can help you work towards a practical, fair and most importantly, child-focussed outcome without going through the stress and expense of a trial.
There are a range of ways in which issues in dispute can be resolved that are less costly and more amicable than traditional litigation. Depending on your circumstances, they might include the following:
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Negotiation, in which a lawyer communicates with the other party or their lawyer directly to attempt to reach an agreement. The benefit of direct negotiation is that it is cost effective and does not involve waiting for court dates.
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Lawyer-assisted mediation, where each party is accompanied by their lawyer and an independent mediator facilitates the discussions and identifies potential solutions for exploration. The benefit of lawyer-assisted mediation is that the parties typically feel empowered to negotiate more freely with the benefit of legal advice about their entitlements and obligations.
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Collaborative practice, in which the parties and their legal representatives agree to work collaboratively to reach mutually acceptable outcomes. The benefit of collaborative practice is that it is centred around open communication and the maintenance of respect between the parties.
A family lawyer will be able to provide you with recommendations as to the most suitable form of dispute resolution having regarding to your specific needs and situation.
Going to Court
For separated parents who are simply unable to reach an agreement on time spending arrangements for the upcoming Christmas holiday period, it may be necessary to instigate court proceedings to have the issue decided by the Court.
It is important to note that the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 require that any application seeking interim parenting orders relating to the school holiday period commencing in December be filed by no later than 4pm on the second Friday of November.
We recommend starting the conversation now so that in the event an agreement cannot be reached, you have time to try to resolve the issue outside of court well ahead of the November deadline.
