Parenting Arrangements over Christmas
Many of us go worry-free into the Christmas period when we head off to meet the family thinking only about trivial things like who’s bringing the wine or who’s bringing the turkey.
Then, usually, everything goes relatively smoothly. People have a few drinks, there’s a lot of good food and company involved, some fall asleep on the couch and all in all it’s a happy family day.
But it’s not always that simple.
As we head towards Christmas, this time of year is significant for people who have recently gone through a divorce or a separation and may have to deal with the issue of access to children.
Join our Director, Milos Supljeglav and 6PR’s Gary Adshead as they discuss difficulties regarding parenting arrangements over the Christmas holiday period.
Why is the Christmas period trickier for people who have gone through a divorce or have gone through Family Court?
The reality is that people who have separated often have to negotiate arrangements to see their children.
Generally speaking, Christmas Eve, Christmas Day and Boxing Day tend to be the days where people are quite anxious to see their children.
If you’re separated for the first time, it’s negotiating the stress involved with Christmas with other important questions.
Where are you going to have Christmas? Where and when are the children going to be handed over?
Often, not just organising Christmas can make people feel stressed, but also having to deal with the fact that it’s their first Christmas alone or the reality of not having a partner or extended family around anymore.
It’s very important for these people to see their kids during a special time like Christmas.
Court Orders come out of the Family Court in terms of access and other issues surrounding divorces. Are there certain Court Orders that you need or you can access in terms of the Christmas period?
Yes, and that’s very important.
Probably the most important message is that you need to have Orders in place to avoid any unpleasantness on Christmas Day and during the Christmas period.
If you don’t have Orders in place, the best you can do is try and negotiate arrangements with your partner. To do that you should either go down the mediation route or, in fact, consult a family lawyer.
The time directly leading up to Christmas is a crucial time. The Family Court is overflooded with applications for Christmas Day and Christmas period contact arrangements. They do have a streamlined process in place to ensure that applications are heard before Christmas.
Ideally, you’d have your Orders sorted before the second week of November. After that date, it’s not too late, but the Court won’t guarantee Applications will be heard.
The best one can do to avoid any unpleasantness around Christmas is to have Orders in place to promote certainty with respect to those arrangements.
From your experience, do people consider and talk about this early enough? Or does it become part of some of the nastiness in relation to the family break-up when they are told they should have got a court order?
You want to avoid the unpleasantness of the police turning up on a partner’s doorstep and taking the children away to other households.
Also, unless you have Orders in place, the police won’t be able to assist parties, because in those cases the situation will be considered to simply be a domestic matter.
Of course, if things get violent that’s a different story. But without these Orders in place, nothing really can occur.
The best way to avoid any unpleasantness is to be proactive, pragmatic and talk early to your partner about the arrangements.
What are we doing on Christmas Day? Are you spending time with your family like you used to? At lunchtime, or are you having dinner this year? Will it be in Two Rocks, or will it be in Kalgoorlie?
These sorts of issues need to be resolved. If they can’t be, the Court needs to make that determination for the parties.
On top of the issue of trying to come to a peaceful arrangement over the Christmas period as to when you can see your kids, this is a really stressful time for families anyway. Am I right in saying that some families break up over the Christmas period because of the stresses and strains as well?
Absolutely. It may be crude to say but people often go to work on a daily basis so the reality of being at home with the family unit and maybe having extended family around coupled with the stress of organising a Christmas lunch or dinner and impressing the extended family can play a role.
People often forget the reality of having screaming kids at home, the pressure and stress associated with Christmas and supporting their partner appropriately.
You do have that: “Oh, I’m at home now and I don’t really like what I’m seeing.”
In the new year, family lawyers are usually very busy because there is a huge amount of family breakdown. The stress associated with Christmas and alcohol is probably a cocktail for disaster in most cases.
Parents tend to compete with each other, particularly at Christmas time, in terms of what they want to do with the kids and whether they want to take them overseas. Does that competition add to the strain?
It does. Particularly if parents are arguing over contact or residency issues. Child support can also be a huge issue.
If parents are trying to outdo each other, by buying bigger presents, or by going on a holiday, it can really rub salt into the wound.
The real issue is when it gets in the way of children being able to enjoy Christmas, which should be, for the most part, about them. It’s about seeing their faces light up and enjoy the Christmas period.
It’s not about the parents. Christmas is not the time to litigate.
My ex-wife decided a little while ago not to give me access to my kids for Christmas, despite having Consent Orders in place for a while.
I called the police but they didn’t get involved, as it was considered a domestic issue. That takes you down the path of having to get a Mediation Certificate if you haven’t got a current one in order to actually go to Family Court.
The process also took me through Family Relationships Australia where I couldn’t get in until March next year.
Luckily, I called my ex-wife and sorted out the issues. But it seems Consent Orders don’t mean anything. Ex-partners can still just do whatever they like and you’re pretty well hopeless because the police don’t get involved either.
Orders are never useless. They are very helpful in circumstances where parties can’t reach an agreement or can’t communicate effectively.
Court Orders also can be enforced. I’m not sure whether you filed Enforcement or Contravention proceedings but there are tools available to enforce those orders.
The police won’t act on Orders unless a Recovery, Enforcement or Contravention Application or Order has been made.
If you’re not seeing your children, you can file an Application in the court for recovery of the children. Then, the police will definitely act on that.
With respect to waiting lists and Relationships Australia, we are totally and acutely aware of the waiting lists and the problems caused by this, but there is also the opportunity to resolve issues via a private mediator or a family dispute resolution practitioner.
They are more expensive than Relationships Australia but the waiting lists are much shorter.
We talked about how you can avoid being in the legal system and one way to do that is to go through mediation. But isn’t that part of the system?
It can be. These days, particularly in relation to child welfare matters, part of the process before lodging an application is to go through some form of dispute resolution process.
However, that’s not necessarily wedded to the legal system. It can occur outside the legal system and parties that are trying to resolve their dispute should see a mediator or a family dispute resolution practitioner to try and reach an agreement.
Worst case scenario, if an agreement can’t be reached, then at least the issues between them can be narrowed.
So you’re saying that people don’t necessarily have to contact a lawyer?
Well, I think it’s important that people are taken out of an adversarial system.
When child welfare issues are at the forefront of their mind, they need to really step back and try to be objective.
Lawyers obviously can play a huge part in the objectivity aspect of it. We’re not emotionally invested. We want to help our clients and we’re able to do that effectively.
But at the same time, it’s important for us to let clients know when they are not being realistic.
Quite often, with the change in legislation that occurred a few years ago, people automatically assume you can spend time with your children week about.
That’s not always realistic though. A lot of my clients are FIFO, or have worked 12 hours a day for 6 days a week for the duration of their relationship.
You have to do some reality testing. Is it realistic to have your children week about when you are working 12 hours a day and you need to drop the children off at school, pick them up or take them to what is an ever-increasing area of extracurricular activities this day and age?
How are you going to do that? And is it in the best interest of the children?
You mentioned that you’re not emotionally invested. As a lawyer, you have to keep objectives and go about your job, but what is it like to hear so many sad stories of break-ups and divorces? How do you filter that yourself, and how do you deal with that day in day out?
It pays to have a healthy work-life balance. It also helps to have extracurricular hobbies to provide a release from all that emotion.
As you could imagine, the life of a family lawyer day in day out is really about arguing, it’s about emotions, it’s about resolving disputes.
I wouldn’t say you become immune to it. You always care about your clients and there are certain cases that touch you more than others for obvious reasons.
Like a surgeon doing his first surgery, it’s probably not a very pleasant experience. Then, after the hundredth surgery, you probably think, well I’ve just got a job to do! You never stop caring, but it does become easier.
Stats have come out in the past about just how busy the Family Court is right now. From your point of view and the amount of cases that you deal with, how is it coping with the demand?
It copes the best it can. There will never be an ideal situation because there isn’t enough funding, there aren’t enough judicial officers and, historically, the Court has always been under resourced to a large extent. At the moment, it’s getting it about right.
The reason why they brought in the deadline of getting Consent Orders sorted before the second week of November was to help streamline the process and to really assist in processing cases.
Everyone wants to see their children over Christmas. If people haven’t dealt with that issue early enough, they usually wait until the last minute.
An ex-partner may then not agree with the suggested arrangements and the only option outside of mediation and a quick resolution would be to try the Family Court.
By that stage, it could be too late because the Family Court just can’t physically process all Applications. Do you know when the Family Court stops working up to Christmas. Is there a deadline?
The Family Court doesn’t work on Christmas Day or any other public holidays, but is open for every other day of the year.
They do have a limited staff that can deal with particular applications over the Christmas period.
But Christmas Eve, Christmas Day and Boxing Day are quite different again to the rest of the summer school holiday period, which is a whole different kettle of fish in that regard.
Are people faster now to go to lawyers? Is it the first thing they do when a break-up has become irreconcilable? Is it much easier for them to get to a lawyer and get the process moving, or are they trying to sort things out themselves?
It varies from couple to couple. Some people separate in circumstances that aren’t necessarily acrimonious. Sometimes it’s just a ‘drifting apart’, or practically it doesn’t work anymore.
Those people tend to be able to talk better.
A huge issue in family law is the ability to communicate effectively with your partner. Those who can’t, for whatever reason, are the ones who generally end up litigating.
Some people approach a family lawyer to help them negotiate rather than litigate.
Just because you approach a family lawyer, it doesn’t mean that you’re rushing off to Court. In fact, the system is now geared towards keeping people out of Court and trying to use mediation to resolve disputes.
If that doesn’t work, the last resort should be litigation.