The Christmas holiday period can be a particularly difficult and stressful time to navigate for separated families co-parenting their children.

How do we agree child arrangements for the holidays?

If you and the other parent do not have a Court Order in place, you will need to come to an agreement between the two of you as to how to divide the children’s time with you both over Christmas and the holiday period.  It is always easiest to plan ahead and agree upon a schedule well in advance, so that both parents can make plans and ensure Christmas is a special time for everyone.

 The overwhelming consideration of the Court is the welfare of the children.  It most cases, it is in the children’s best interests to spend Christmas time with both parents.  However, the Court also has regard to other factors such as the age of the children and their wishes and feelings, the practicality of handovers and how far the parents live from each other, and how effectively the parents can communicate with respect to the children. 

There are a few common options that families normally choose to adopt to share the holiday period:

 1.      Christmas Day is shared

 The children spend Christmas Eve, Christmas morning and lunch with one parent, and then the rest of the day (often for a Christmas dinner) and the night of Christmas Day with the other parent.  This means the children get to spend the special day with both parents, and the arrangement alternates each year between both parents. 

2.      Christmas and Boxing Day is shared

The children spend time with one parent on Christmas Eve and Christmas Day, and with the other parent on Boxing Day and 27 December.  Handover usually occurs on the evening of Christmas Day or in the morning of Boxing Day.  Again, the arrangement alternates each year between the parents.

3.      Christmas holidays are shared equally

The Christmas holidays are divided equally between the parents.  For example, for the 10 days of 23 December to 1 January, the children spend the first 5 days with one parent and the subsequent 5 days with the other parent.  This arrangement works best for parents who do not live close to each other, and it is not practicable or in the children’s best interests to do multiple handovers around Christmas Day. 

It is always the easiest and most cost effective for parents to agree upon the agreements for the children directly between themselves, without any lawyers involved.  However, sometimes it is not possible to communicate directly or reach agreement with the other parent.

What if we can’t reach agreement over Christmas arrangements?

In these circumstances, mediation can be an effective option for negotiating arrangements for children quickly and amicably outside of Court.  Mediation is convened by a trained mediator who is independent and will try to find a way forward and reach agreement.

You and the other parent will be required to first attend a Mediation Information & Assessment Meeting (‘MIAM’).  In the MIAM, the mediator will assess whether your matter is suitable for mediation based on your individual circumstances.  If your matter is deemed as suitable, you will be invited to a joint session with the other parent.  There are usually a few joint sessions before final agreement is reached.

If you cannot reach agreement about Christmas time or other children’s arrangements with the other parent in mediation, it may be necessary to make an application to the Family Court.  

 How do I file an application with the Court?

Court proceedings are stressful, expensive and lengthy, and should therefore always be a last resort.  In most cases, except in circumstances of urgency or risk, both parents are required to attend a MIAM and participate in mediation prior to filing an application with the Court.

A party with parental responsibility can make an application to the Family Court with respect to Christmas arrangements.  A father has parental responsibility if he is named on the birth certificate of the child, or if he was married to the child’s mother at the date of birth or subsequently marries the mother.  You will be required to complete a C100 form and file it with the Court.

Please bear in mind that an application relating to time over Christmas holidays may not be deemed to be a priority.  Unfortunately, this means there is no certainty that your matter will be listed prior to Christmas.

If you think Christmas arrangements are going to be problematic between you and your former partner, it is best to seek legal advice as soon as possible, especially before filing an application with the Court.  Case management directions are made at the first hearing, and these can have a significant impact on the outcome of the child arrangements.

 If you want to discuss anything in this article please contact us.