It can be an emotional and confusing time for separated families when public holidays and special occasions such as Easter and Christmas approach. Even families who have been separated or blended for sometime often have difficulty in agreeing to arrangements for their children that will keep everyone happy and ensure that the children are able to make memories with both parties.

Even the most amicable of separated parents often leave planning to the last minute, which can sometimes result in friction when attempting to reach an agreement.  

What does the law say?

The Family Law Act (Cth) 1975 (“the Act”) sets out how the Court deals with parenting matters, and in the practice of family law, lawyers tailor their advice to mirror what they believe the Court would do in any given circumstance with reference to the Act and any relevant caselaw.  What this means is that when a disagreement about special days and occasions arises, lawyers often look to the Act as the first port of call, and then consider the client’s options.

In any parenting matter, when deciding whether to make an order about a child (for example, an order about a child spending time with the mother or the father on any given day) the Court will consider what is in the best interests of the child as a paramount consideration. This means that the interest of the child are taken more seriously than the interests (or “rights”)of the mother, father or grandparent. This is of course subject to the court ensuring that any determination protects the child from physical or psychological harm, which is prioritised over any “meaningful relationship” which might occur as a result of making an order.

The court determines what is in the child’s best interests by looking at “secondary” considerations, which are outlined at Section 60CC(3) of the Act. These secondary considerations include (and are not limited to):

1.     Any views expressed by the child.

2.     The nature of the child’s relationship with the child’s parents, and other relevant persons (such as relatives).

3.     The extent to which each parent has taken or failed to take the opportunity to spend time with, communicate with and generally be in the child’s life.

4.     The effect that separation from one parent to spend time with the other might have on the child (for example, an infant would likely not be able to separate from their primary carer for an entire day or several days at a time). This can include psychological effects.

5.     The difficulty and expense of a child maintaining their relationship with each of their parents (for example, where a flight or long commute is required to ensure time is spent).

6.     The capacity of each of the child’s parents.

7.     The background of the child’s parents.

8.     The attitude of the child’s parents to the responsibilities of parenthood.

9.     The child’s right to enjoy their culture(particularly relevant for Aboriginal or Torres Strait Islander children who may want to enjoy certain occasions with the parent from that background).

10.  If any family violence orders apply to the family.

The weight given to each of the above considerations varies from case to case, which is why the advice of an experienced family lawyer can be incredibly useful in determining which considerations might be relevant to an individual case.

For special occasions, where there are little to no risk factors, a family lawyer will often look at what has historically occurred over the last several years since separation and attempt to achieve a pattern of care on special days which could give some guidance to the future. For example, for an occasion like Christmas, that might be:

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1.     Every odd numbered year, the child spends time with the father.

2.     Every even numbered year, the child spends time with the mother.

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To determine who should care for the child in any given year, it would likely be suggested that the parent with whom the child did not spend the last Christmas with spend time with the child in the current year. This applies for occasions like Christmas, Easter, Birthdays and the like.

This is by no means the only way of achieving a resolution, some families choose to split special occasion days down the middle, with a12PM changeover at a mutually agreeable location. For families with younger children, it is not uncommon for a child to spend several hours only with the non-primary caring parent, until they reach an age where they are able to regulate their emotions and communicate effectively away from the primary parent.

What is suitable for one family may not be suitable for the next, but the overarching sentiment among the profession is that as long as it is in the best interests of the child and the child is protected from harm, the child should have the opportunity to spend time with both parents on special occasions as they mature, be it yearly, or biannually.

Once parents have reached agreement about the time their child might spend with each of them moving forward, it is wise to record the agreement in a Parenting Plan or a Consent Order, to ensure if the arrangements are ever questioned, there is documentary evidence of the agreement.  If the agreed arrangements are only for one or two years, the parents can still document their agreement in a parenting plan, and would be wise to do so.

If parents are unable to reach an agreement, or if one parent refuses to allow the child to see the other, then it is best for both parents to seek legal advice about the likely result if the matter were to reach Court and attempt to mediate the matter with the aid of a professional Family Law Mediator. The parents can then attempt to negotiate or mediate outside of the Court system, whilst being informed about what might be determined to be in the best interests of their children.

If you have any questions about this article, or about parenting arrangements during public holidays, Christmas and Easter, feel free to take advantage of our 15-minute free initial consultation by booking on our website at www.avokahlegal.com.au,telephoning us on (07) 3447 6332 or emailing us at info@avokahlegal.com.au.

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