Christmas is almost upon us, and for separated parents that means figuring out holiday care arrangements for their children. Sometimes, this isn’t easily achieved.
In some cases, there may be disagreement or incidents over parenting arrangements that occur over the Christmas/New Year period. More often than not, most legal offices will be closed during that period and therefore it will become a matter for the parents to sort out between themselves. If issues cannot be resolved, then parents should legal advice at the earliest available opportunity.
We have set out below two common scenarios that, in our experience, tend to occur over the Christmas period:
My ex didn’t comply with our agreement and had the kids longer than they should have.
In this situation, if you have a Court order in place which specifies when the children are to changeover to each parent, the aggrieved parent has the option of filing an Application – Contravention. The parent may ask the Court to order makeup time to compensate for the time the children were supposed to spend with that parent in accordance with the Orders.
There are other remedies available to the Court other than makeup time. There are advantages and disadvantages of making this Application, and we strongly recommend seeking tailored legal advice to your individual situation before doing so.
If there is no Court Order in place, then unfortunately there is no remedy available to the aggrieved parent.
My ex has taken the kids without my consent – what do I do?
This is a very stressful situation for parents, especially as their lawyers will most likely not be contactable during the substantive Christmas/New Year period and the Courts will also be closed for roughly a 2 week period.
If you have concerns for the safety of your children in the care of the other parent, then you should contact the Police, make a report, and request they conduct a welfare check. The Police will require a Recovery Order from the Federal Circuit and Family Court of Australia in order to physically recover the children and return them to the requesting parent.
You should contact a family lawyer as soon as possible, and discuss your options. If a Recovery Order is recommended, your lawyer will likely try to prepare the relevant documents and file them as quickly as possible, and request an urgent hearing date. At the hearing, you will need to satisfy the Judge as to why the children should be returned to your care (a Recovery Order is not automatically granted upon application). Your ex will need to be served with your Application, and they may appear and respond, seeking orders of their own. The Judge will then determine the application.
One of the most important things you can do is document everything that has happened (dates, times, locations, conversations etc), as this information will need to be used in an Affidavit in support of that Application.
This is not typically a quick process – that is, the time taken to have a Recover Order made can be a few weeks, not days. Moreover, one of the effects of filing for a Recovery Order is that this paves the way for you and your ex to seek other Orders about the care of the children on both an interim and a final basis.
It would, of course, be preferable to have Orders in place prior to the Christmas period so the parents and the children have some certainty. Unfortunately, the deadline for the filing of urgent interim parenting applications has just passed (12 November 2021, pursuant to the Federal Circuit and Family Court (Family Law) Rules 2021), however there may be a chance that an application could be heard prior to the Christmas period.
If you have concerns about your children’s care arrangements over the upcoming Christmas period, then please don’t hesitate to contact our Family Law team, Joelene Seaton or Aleena Mills at MBA Lawyers.