FAMILY LAW: WHERE WILL THE KIDS SPEND THEIR HOLIDAYS?

November 10, 2016

Little boy is playing on a beach while his sister has sneaked behind hims with a bucket of water and is just pouring the water on him.

The summer holiday season can be full of joy and delight, especially for kids. But it can also be a time of pain and stress for parents who won’t get to spend enough or any time with their loved ones.

This is an issue for thousands of separated and divorced parents. While there are limitations on what can be formally done this close to the holiday season, there are some other steps that you can take to preserve your rights and some things to keep in mind for next year.

Family Court’s attitude

The lead-up to the holiday season is the busiest time of year for the Family Court as it must deal with hundreds of applications for parenting orders.

The Court considers school holidays, especially the summer holiday period, to be of high importance in the lives of all children. Not only is it a celebratory time of year, but an extended break from schooling means that children have more “down-time.”

Usually, kids are free of homework and other commitments and often parents can take some leave from work. This means that parents can enjoy more time with their children, and the Court places high importance on quality time over quantity of time.

Children may also have more contact with extended family members and it’s also a time when family celebration traditions can be revisited.

Parenting Orders

Separated parents can make parenting plans that reflect their agreement about how the children will spend their time. But those plans aren’t legally binding and can’t be relied upon to enforce either party’s parenting rights.

A parenting plan is basically made in good faith that both parties will abide by it. To make a plan legally binding, the Family Court must make orders about the parenting plan. Usually the parties consent to this and so these orders are known as consent orders, or parenting orders. If a person breaches the orders, the Court may be persuaded to make new parenting orders or make up time.

If you have a parenting plan but no Court orders, you may wish to apply for orders for the coming holiday season. However, due to the enormous volume of applications at this time of year, the Family Court requires these applications to be made by 4pm the second Friday in November of any year. 

In rare circumstances it is still possible to apply after that cut-off date for an urgent hearing to have orders put in place for the January school holidays. However, you would need to seek legal advice about this immediately.

Breach of plan

You may have a parenting plan in place without orders. If your former partner breaches the plan (especially in the holiday season), you won’t have legally binding orders to support your position but you can use the plan as proof of what you had both agreed and intended to happen. This could be used if you decide to apply to the Court to have orders put in place, although a hearing is unlikely to take place for the December holiday period if lodged after the November deadline. The plan can be used to preserve your position down the track.

How can a lawyer help?

A family lawyer can give you advice on how to best enforce your parental rights. If your former partner has refused to allow you to spend adequate time with your children over the holidays, or is not sticking to the parenting plan, a lawyer may be able to convince them to change their position without having to get the Court involved.

Any legal letter that is sent to your former partner can show your willingness to stick to the plan. This lays the ground-work for any future applications and, you never know, it may also secure an agreement for this holiday period.

Getting lawyers involved can also help to diffuse the emotion and stress of the situation and assist the parties to reach a solution. It may also assist parties to identify the root of the problem.

If you are concerned about your parental rights for this holiday period, often the sooner you consult a lawyer the better off you’ll be. To find out more, contact one of our family law specialists for a free first interview.