December is not busy just in department stores, it is a hectic time in the Family Law courts. For judges, Federal Magistrates and lawyers, December is the month where much time is spent working out where children will spend their Christmas when their parents cannot work it out. The number of cases with this issue outstanding before the Courts is so high, that the courts usually require Christmas cases to be filed no later than mid November.
How does a court work it out?
The law says that the best interests of the child are the paramount consideration. It also says that a child is to be protected from violence or abuse and that as far as is possible, a child should be able to have a relationship with both parents.
The most common holiday arrangement is that each parent has a child for half of the holidays, alternating each year between the first and the second half.
When distance is not a problem, it is common for the parents to split Christmas Eve and Christmas morning between them so the child can share the Christmas excitement with both parents.
Problems are more likely to arise when there is a distance factor, which might make a split holiday impractical. Usually the only realistic solution is that each year the child spends Christmas with just one parent on an alternating basis.
One scenario which arises too often is when one parent says, "We always go interstate for a big family Christmas with my family; the kids have the chance to see their cousins and grandparents and they love the trip." In this situation, the parent is saying that the children cannot spend time with the other parent ever on Christmas Day as we assume the other parent is unlikely to be invited to the family gathering. Perhaps even more significantly, it ignores the fact that the family is separated, that there are two distinct households now involved, that old rules are probably not appropriate any more, and most significantly that a child will want to see both parents over Christmas.
How can one avoid becoming part of the Family Court Christmas rush? The simplistic answer is not to think about your former spouse, but about the children. As both parents have an interest in the children’s wellbeing, compromise must be made somewhere. If you cannot reach an agreement privately, or through mediation, or with your respective lawyers, then going to Family Court may be your only solution.
For assistance with Family Law matters, phone Dominic Wilson, Managing Partner of Craddock Murray Neumann, on (02) 82684000. We have Family Lawyers who are certified by the Law Society of New South Wales as Accredited Specialists in Family Law.