What do we do if we can’t agree on arrangements for the children over the Christmas holidays ?

Unfortunately, this is a common problem that parents, lawyers, counsellors and the courts have to deal with every Christmas/New Year period.

Before we look at what can be done if parents can’t agree on how and when they each see the children over what should be a happy time, both for the children and the parents, let’s look at why parents can’t agree. The answer is pretty obvious – they have separated, they often have strong negative feelings towards each other and, while they both love their children, they may think that the other parent isn’t capable of properly caring for them, even though the parents were happy with each other’s parenting skills during their relationship.  

These negative feelings towards the other parent can lead to a refusal to allow the children to spend any, or only a limited time on Christmas Day, or other special occasions, like Boxing Day, New Year’s Eve or New Year’s Day, with the other parent. Many reasons are given – “He/she lets them stay up too late”, “I don’t like his/her new partner,” “The children have always woken up at my home on Christmas morning” or “He/she will let them spend time with his/her parents, who I don’t get on with.” When a relationship breaks down both parties have to adjust to a new set of circumstances. Both have to face the new reality that there are now two households and that the children will be spending time in both.

Following separation, parents may have quite different, and often unrealistic, expectations about care of the children. I recently had a client, the primary carer of the children, who firmly believed that they were not going to allow the other parent to see the children, who were aged 8 and 10, on Christmas Day, or for a week either side of 25 December. I was able to persuade the client to look at the issue from the children’s’ perspective (they wanted to spend time with their other parent), and also through the eyes of that parent, who had spent every previous Christmas with them throughout their lives, while the parties were living together.

It's often very difficult for a separated parent to put their negative feelings towards their former partner aside and do what’s best for the children – because that’s the test that the courts use – what’s in the best interests of the children, not what best suits the adults.

So, what to do if the parents can’t decide about how much time the children spend with each parent over the Christmas/New Year period? Ideally, they should realise that it’s best to reach agreement between themselves but, as set out above, that may not be possible, because of hostility between them.

The next step is to consider mediation. This involves the parents agreeing to see a trained mediator who will attempt to get the parents to reach agreement. The mediator is a facilitator – they don’t impose their own ideas on the parents. Sometimes, relatives or friends of the couple can help to find a solution, but this often doesn’t work, because one of the parties sees that “unofficial mediator” as being aligned with one of the parents. Relationships Australia Victoria (RAV) runs an excellent mediation service, at modest cost, based on each party’s income. They are located in Grimshaw Street, Greensborough – phone 9431 7777. Such services are always busy, especially at this time of the year. If RAV can’t help, ask them to refer you to another mediator. Then there is the Family Relationship Centre, a Federal Government shopfront service, also in Grimshaw Street. Their number is 9404 7800. Private mediations can also be arranged, usually through solicitors.

Mediation services have a discretion as to whether to take on particular clients. If there is an Intervention Order in place and/or there has been domestic violence, they may decide that the couple are not suitable for mediation. In that case, of if the mediation fails or one party refuses to attend, the service will issue a certificate which enables either party to apply to the Federal Circuit and Family Court of Australia (FCFOA) for parenting orders. But that is a lengthy, traumatic and expensive process, which should be avoided if at all possible.

Which takes us to what do the courts do if a Christmas/New Year holiday application about children is brought before them? So long as there are no genuine concerns about the children’s welfare while in the care of either parent, the courts usually order that this holiday period is shared equally between the parents. This often mean “splitting” Christmas Day, so that, in alternate years, the children spend Christmas Eve and half of Christmas Day, typically to include lunch, with one parent, and the afternoon, overnight and into Boxing Day with the other parent. That is reversed the following year. Then, the Christmas/New Year school holidays are usually shared, week about if the children are young, and for half the holidays when they are older.

I hope this has helped to clear up some of the misunderstandings about this subject. If we can help in resolving your issues, please contact our office and one of our friendly and highly experienced Family Law Team will be happy to assist.