Surviving Christmas after Separation and Divorce

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How to bring a Christmas Application or a small parenting application

Author: Andrew Corish BA LlB – Accredited Specialist Family Law

Publish Date: December 2004

Christmas is a very difficult time to negotiate at the best of times. There is such a strain of expectations and a weight of emotional baggage, which we bring from the past, and from our childhoods. The problems and demands of Christmas can increase greatly after a marital separation. Arrangements for Christmas can assume great importance in the minds of separated parents and lead to many disputes.

There is an increase in parenting applications in the Family Court just prior to Christmas, with parents wanting urgent orders made as to Christmas arrangements. The problem led a few years ago to the Family Court establishing a special “Christmas List” for a week or so in December, when a Registrar deals exclusively with Christmas disputes. However litigants have to file their applications by early November to make this list, or otherwise their applications as to Christmas arrangements may be heard in January, which may defeat the purpose.

How do the Courts deal with Christmas applications? There are few examples of decided cases. However I suggest there is a clear and growing expectation that Christmas should be shared and one parent should not be able to monopolise Christmas. The most common orders made are for each parent to have from overnight on Christmas Eve in alternate years, and the other parent to have the children from about midday Christmas Day to Boxing Day. Others share Christmas in different ways. Of course problems do arise if the children are very young or don’t want to go or one parent wants to travel a long distance for Christmas to visit relatives. However, presuming there are no other major problems, parents are rarely deprived of having Christmas time with their children.

In respect of the Christmas school holiday period, there is also a strong expectation of sharing. There is a case for contact parents who have not been able to have much contact during the year because of work commitments or distance, that they should have more than half of the Christmas holidays.

The courts want to help contact parents and their relationship with their children, and it is made clear in the Family Law Act; that children have a right to see their parents regularly, which includes special occasions such as Christmas.

So should you bring a Christmas Application? Court proceedings should always be avoided and be a last resort. It is far better to come to an agreement. You should try to arrange mediation and be prepared to make concessions. Children find it very stressful to have their parents arguing about them, and also to have their own Christmas plans placed in jeopardy. Your children will hardly thank you if you spend your Christmas budget on legal proceedings rather than the latest computer games and holiday activities for them.

However the time comes when you have to be assertive of the right of your children to see you at Christmas in the face of unreasonable obstruction by the residence parent. It can be very effective to bring a court application. The purpose of doing so is to compel the other party to be reasonable and come to an agreement early, rather than to have a hearing.

As soon as you reach agreement, you can file documents at the court to obtain a court order by consent.

The key to doing a court application for parenting orders effectively is to be as positive as possible and refrain from raising criticism of the other parent, unless it is directly relevant. The court will appreciate you keeping your application as non-emotional and non-accusatory as possible.

Firstly, you need a Court Order . If you don’t have a court order, you apply for one. If you have an Order, but it is vague, outdated or inadequate, you can apply to vary the existing order and obtain a new one. If you have a good court order, which the other party says they are not going to abide by, you can wait until afterwards and bring an enforcement application, which is another topic. However often it is better to bring a variation application to iron out problems rather than a enforcement application to punish the other parent after the event.

Which Court ? Local courts can be geographically convenient. However it is generally better to deal with the specialist Family Law Courts; the Family Court and the Federal Magistrates Court. The Federal Magistrates Court was set up to deal quickly and inexpensively with small disputes, and would generally be the court of preference. The Family Court however has special procedures such as the “Christmas list” and the “Children’s Cases Program” which can be helpful.

The forms – these can be obtained from the Court or the website. The websites are excellent sources of information (Family Court – www.familycourt.gov.au , Federal Magistrates Court – www.fms.gov.au) . In the Family and Local Courts, you file a Form 1 Application for Final Orders , copy of marriage certificate with cover sheet and pay the filing fee of $181. You would usually want to seek urgent interim orders and so also file a Form 2 Application in a Case and a special affidavit called “Affidavit – Interim Residence, Contact or Specific Issues Order” . There is a kit on this affidavit available at the court. You may file affidavits by other witnesses but often this is not necessary. In respect of the Federal Magistrates Court, you file an Application in which you can specify final and interim orders as well as an affidavit . The filing fee is $115.

In all applications you need to file a copy of the marriage certificate or if not married, a copy of the child’s birth certificate with a cover sheet.

What Orders do you seek? : the Federal Magistrates Court website has a helpful list of pro forma orders. Typical orders sought in a Christmas application are as follow:

( If you are apply to vary an existing order ) That previous parenting orders made (date) be varied.

That the child (name and date of birth) have contact with the father from 6 pm on Christmas Eve to 2 pm on Christmas Day in 2004 and an alternate years thereafter and from 2.00pm Christmas Day to 6.00pm Boxing Day in 2005 and alternate years thereafter.

That the father collect the child from the mother’s residence at the commencement of the Christmas contact period and return the child to the mother’s residence at the conclusion of the period.

If you are seeking interim orders, you would only refer to 2004 and start the Application with the words: “ Until further order , ……….”

The affidavit is the document in which you tell your story. You keep it as factual, non-emotional and brief as possible. Generally you would set out the basic facts at the beginning being dates of birth, details of the marriage, details of the birth of children, details of separation and divorce if applicable and any prior court orders. Then you set out the facts relevant to the dispute. This may be the contact you have had in the past, and the arrangements for previous Christmases. Then set out how he/she said you will have to miss Christmas this year, because she wants to go with the children on a cruise with her new partner and how you objected and what was said and perhaps what the children said. You then set out what you propose.

Starting an Application – you need to do 2 copies of the original documents and file them at the Court. You then receive copies back with a court stamp, which you need to serve on the other party. Service can be difficult and vital to prove if the other side doesn’t turn up. It is often best to use a professional process server. You can find them in the Yellow Pages. They will do an affidavit of service which you can then file at the Court.

The procedure – the matter is usually listed 6 weeks after filing. In the Federal Magistrates Court, a counselling appointment is often made before then. In the Family Court the counselling appointment may be made after the date. You can seek a earlier hearing date if you can justify urgency beyond other matters. If agreement is reached at any time, consent orders confirming their agreement can be filed at the Court. If interim orders are sought, the matter is listed for an interim hearing on the first occasion. Often an interim hearing is all that will be necessary. Interim hearings are generally conducted by the Registrar/Federal Magistrate reading the documents and the parties answering questions and giving short statements in support of their application. A Judgement is given and a court order is issued by the Court.

After the interim hearing, directions are made, which lead to the matter coming to a final hearing, if there is still a dispute.

You need to inform yourself as much as possible about the law and procedures. You can get some free legal advice from various places and can learn a lot by attending and the court and watching proceedings. It can be very helpful to get professional legal advice from a family lawyer about your situation, and the problems and pitfalls to avoid. A lawyer can help you with your documents and the procedure, even if he/she does not actually appear for you in court.

Andrew Corish

Accredited Family Law Specialist

Staunton & Thompson Solciitors

Manly and North Sydney

Ph: 9977 5000

Email: arc@stlegal.com.au