Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn advise about a man who can’t see his kids on Christmas Day.
This Christmas is the first year I’m living separately from my wife after we split up earlier this year.
I left the family home and she has majority custody of the kids but I see them every Sunday morning and take them to Macca’s for breakfast, which is the highlight of my week.
As Christmas Day falls on a Sunday I figured I’d have them that day and drop them back with her at 3pm as usual. However, she wants to take them to her parents’ place two hours away for the Christmas break.
Can she just take them when she wants them like that? We haven’t involved lawyers in our break-up yet as I was hoping to keep things civil but this has broken me.
What can I do to make sure I see my kids on Christmas Day? – Tyrone, Qld
Tyrone, there is a lot to navigate after such a recent separation and Christmas can be a challenging time of the year for families in your situation.
Where possible, matters relating to separation are generally best resolved amicably without the involvement of lawyers and the Family Court, which can be a costly and slow process.
In this regard, it sounds like you have tried to propose an outcome for the care of your children over Christmas which has not been acceptable to your wife.
With the additional information below, we’d suggest you make one last attempt to negotiate an agreement.
Before you were to even begin any court process, the law requires that you and your wife attend mediation or family dispute resolution. There are various services you may be able to access through Legal Aid, Family Relationship Centres and community organisations.
The aim of going through a mediated process is to come to an agreement about the issues in dispute and have a parenting plan or a consent order drawn up, signed and lodged with the court.
In the short term however, given Christmas is so close, you may be able to find a service you can access urgently just to deal with the issue of the care of the children over Christmas.
A parenting plan is a written agreement created by you and your wife that is unique to your circumstances and made in the best interests of your children.
It is a document that will detail very practical aspects of the responsibilities of both parents, and how decisions will be made about your children.
The types of matters that are covered are very broad and typically include everything from living arrangements, education and health care, to the type of discipline that will be used and how to decide on extra-curricular activities.
It is common for plans or orders to outline alternate arrangements to the usual care arrangements for special occasions or celebrations, such as Christmas and birthdays.
When it comes to special events like Christmas, usually the plan or parenting orders will allow for each parent to spend time with the children for the special event, which is consistent with your proposal.
If a plan does not allow for different arrangements at Christmas then the usual arrangements would likely apply.
It is important to understand that under the law, one parent is not more important than the other.
The overarching factor is that the arrangements are to be in the best interests of the children.
If you are ultimately able to reach an agreement with your wife and develop a parenting plan you should be aware that a parenting plan is not legally enforceable.
You can however submit your parenting plan to the Family Court using the Application for Consent Orders form. The details of your parenting plan are then formulated into a parenting order, which is legally enforceable.
If you are unable to come to an agreement then you can apply to the Court for a parenting order, where a decision will be made about these sorts of matters based on what is in the best interests of your children.
There is an avenue to lodge an application in the Family Court and ask for the matter to be dealt with urgently, however this is usually used for situations such as wanting to stop a parent from taking a child out of the country.
If you end up going down this path you should get legal advice. While you can represent yourself in court, a lawyer can give you detailed advice about your rights.
We hope you are able to resolve the issue in advance of Christmas.
This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.
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