The most tumultuous time for separated parents is typically the annual stoush over the summer holiday arrangements and where the children will be on Christmas Day. If you have not reached agreement with the other parent and were hoping the family law courts would assist you in 2020; I have some bad news. If you file an application now, you will not get a return date until well into 2021. Therefore, parents who are yet to resolve these issues will need to compromise and reach agreement between themselves and not rely on the family law courts.
Summer holidays and Christmas for separated parents
Depending of course on the age of your child and their needs, parents often have very different views about how the summer holidays should be divided. Should you simply split these: with one parent having the first half and the other the second; or is a rotating week about arrangement best?
Similarly, parents are often at loggerheads about the Christmas Day arrangements. Most parents would like their child to wake up in their household on Christmas morning; we all remember the thrill of running out of our rooms (as early as our parents permitted!) to find numerous oversized wrapped presents. It can also be a significant extended family day of long drives to visit relatives we have not seen all year.
What happens, though, if you want to take your child away for a few weeks on holiday while the other parent wants a rolling week-about arrangement over summer? What if both of your respective families have significant lunches planned on Christmas Day and each of you wants your child there for an important family bonding experience?
Family law courts and delays
It is well-known that the family law courts in Australia are overwhelmed with cases and there is a large backlog. This means that when a parenting application is filed (or any other application for that matter), your first return date will not be scheduled as quickly as you might expect.
In the Brisbane registry, once your application is filed, your first court date will be scheduled in about three months' time. I understand that this timeframe is broadly standard across other states.
The only exception is where there is genuine urgency about a serious issue, such as where child abuse is allegedly occurring, in which case the application might be listed much sooner. A dispute about which household a child wakes up in on Christmas Day is not going to be listed urgently.
Obviously, a timeframe of three months takes us well into 2021. Parents who are therefore not already in the family law courts cannot expect to file an application this year and have it listed in time for a judge to make summer holidays or Christmas 2020 arrangements.
What options are left?
If you have been unable to resolve those issues with the other parent already, given that the family law courts will be unable to assist you this year, you really have no alternative other than to ramp up your negotiation efforts.
A common compromise on Christmas Day is for the child to wake up in the household of one parent and then to be collected by the other parent for lunch. This ensures the child can spend time with both parents on the special day and the arrangement can be reversed each year.
Disputes about the length of time a child should spend with their parents over the summer holidays generally boil down to the child's age and their ability to cope being away from either parent for an extended period. For example, a five year old may be too young to be away from either parent for half of the summer holidays; whereas this might be perfectly appropriate for a 12 year old.
If direct negotiation is not working, there is still time to organise family dispute resolution (such as mediation) this year. Often the involvement of an experienced and neutral third party can help warring parents resolve parenting issues, even if they are only short-term ones.
You should obtain legal advice about parenting arrangements if you have not already. It is very common for new clients to have unrealistic expectations about how much time their child will spend with them (or framed differently, how little time they consider the child should see the other parent) that is not consistent with the social science research or likely court outcomes.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.