Separated or divorced? Here’s how to navigate the kids over the Christmas holidays

By Breanna Deakes, Associate at Australian Family Lawyers

The Christmas School holiday period is both a wonderful and difficult time for families. For those parents who work, annual leave at this time of year can be an issue. For those struggling with the separation and/or divorce this period can be troubling and triggering.

Many families will take advantage of the long break and want to travel. So how does this all work when you are separated or divorced? Well, that depends on many factors.

If you have Court Orders or a Parenting Plan

If you have Court Orders for parenting in force, those will need to be followed unless any changes are agreed between you and the other parent. The same applies for Parenting Plans. Parenting Plans, while not legally enforceable, should be followed unless otherwise agreed.

If you want to deviate from your Court Orders or Parenting Plan and there is no agreement from the other parent, you should consider obtaining legal advice. There can be serious consequences for non-compliance of a Court Order.

If there are no Court Orders or Parenting Plans

If you are separated or divorced and have not yet discussed parenting arrangements for Christmas this year, then you best get a move on. Each the year, the Parenting Order Application “cut off” date is by 4:00pm on the second Friday of November. This year it is Friday 11 November 2022. Applications filed after this date are not guaranteed to be heard before Christmas. You can seek to file an urgent application. However, because “Christmas is close, and we cannot agree” is unlikely to be considered an urgent application and the usual urgent application considerations apply.

The other difficulty you face is that parties seeking to apply for parenting orders must attempt family dispute resolution (mediation) before filing an application unless an exemption applies. This process can be slow, and usually a private family dispute resolution practitioner can assist you quicker.

There is no law or rule on how the arrangements for Christmas should operate. However, there are many ways families choose to do this. Each family is different and has different needs so you will need to come up with a mutually acceptable arrangement. Some examples, families choose are:

The children spend time with one parent on Christmas Eve and Christmas morning, and spend time with the other parent Christmas afternoon until Boxing Day. This arrangement typically alternates each year; or

The children spend time with one parent the entire Christmas period one year and this alternates each year.

It really depends on how the usual spend time arrangements occur and what you consider works for your family on special occasions and school holidays. Always keep in mind the best interests of the children when making these arrangements.

Travelling with children

A record number of families will be taking advantage of the end of COVID travel restrictions to venture interstate and overseas this Christmas break.

Again, if there is a parenting order which details how and when you can travel, this should be followed. If you need to deviate from the order, then it must be agreed in writing by the other parent or by further consent Order. We recommend any variations to Orders be agreed in writing, such as section in the 64D Parenting Plan that varies the existing Orders.

If there is no agreement, you should not travel. Any travel which has not been agreed could make you the subject of a recovery order (meaning the Federal Police will be directed to return the children to the other parent). If consent is being unreasonably withheld, you should obtain legal advice specific to your circumstances.

Australian Family Lawyers has expert advice on hand to explain the best way divorced and separated parents can successfully negotiate travel arrangements during the holiday season whether they’re travelling locally or internationally. Please contact us for advice specific to your circumstances.