What a wonderful time of the year…

As children most of us loved Christmas time; the excitement of finishing school (especially at a public or state school when school finished very close to Christmas), the heat of Summer and the thrill of yelling at the top of our voices “no more teachers, no more books…”.  Our anticipation reached almost boiling point on Christmas Eve when our parents made us go to bed as early as possible (for those in all states but Queensland this meant going to bed when it was daylight usually) with the fear that if we didn’t go to bed ‘Santa’ may miss our house and then the joy and excitement of waiting to see what ‘Santa’ had left in our stockings, under the tree, or for the writer, a large Christmas pillow case.

Christmas morning was all about emptying the stocking (or pillow case) one item at a time and then, once the stocking was empty (and shaken to be sure of this), time was spent looking at each item, checking it all out, looking at what siblings received and getting excited all over again at the number of new things I received.

After the excitement of the stocking inspection finished, typically it was breakfast time which normally consisted of a ‘big breakfast’ or a buffet breakfast to cater for everyone.  It was a time to relax after the Christmas opening, a day when I knew, even as a child, that it was a rare occasion in a household with at least 1 working parent, that no one had to go anywhere.

At various times as I was growing up my parents took me to church on Christmas morning and whilst this was not such a terrible thing (and not the subject of this article), the interference of my Christmas day was something that upset me even though I knew that I was returning to my presents and the Christmas lunch (no doubt the irony of my sense of injustice will not be lost on those who attend Christian churches).

In a perfect world, all children should be able to enjoy this whole day with their parents and their families and whilst Christmas has a different meaning for many, from most children’s perspective it means Santa, presents, food and family (most likely in that order too)!

For most children in separated families, Christmas is not as described above, sometimes in the lead up to Christmas, Mum and Dad have been fighting about who has what time on Christmas Day, what day the mid part of the school holiday falls, and what day school holidays actually start, on top of this is the financial stress of Christmas suffered by many families (usually in an effort to give their child(ren) an enjoyable Christmas) as well as work stress at this time of year.

Many of us forget that children observe everything, and a lot of the time the things we do not want them to hear, see or feel (including our stresses and conflict) is what they pick up on.  Then on Christmas Day, children are removed from one parent to another.

Without a doubt, in most matters before the Court, an Order is made allowing a child (or children) to enjoy part of the Christmas period with both of their parents.  The Court recognises that Christmas (or the Christmas period being from Christmas Eve to Boxing Day) is an important day in the calendar of most households but it is important to remember that the Court’s role is what is in the best interest of a child (or children); not what the parents want.

In so many parenting matters before the Court, the Judge is often heard telling parents words to the effect of “you are the best people to decide on the arrangements for your children, I do not know your children”, it is common sense really.

The following are some things to consider in the lead up to Christmas and in trying to resolve ‘festive season’ arrangements for children:

  1. It goes without saying that Christmas is enjoyed by children, let them enjoy it;

 

  1. Christmas can be an anxious time in happy families and not-so-happy families, do everything in your power to ensure that the children are not exposed to any anxiety or conflict (this should not be limited to Christmas);

 

  1. The ‘division’ of the Christmas period should be child focused. Care should be taken to ensure that the children are not removed from their Christmas enjoyment for the convenience of a parent (although there are exceptions).  The Court can and will look unfavourably on a parent who fails to consider the division of Christmas through a child’s eyes;

 

  1. If at all possible, try and ensure that a child gets to enjoy Christmas morning and a good time for Christmas lunch with one parent before going to the other parent;

 

  1. Consider the child(ren) enjoying Christmas Eve and Christmas morning/lunch with one parent and then being able to enjoy another “Christmas’ with the other parent on Christmas afternoon (made out to be a second Christmas Eve) and another Christmas morning/lunch on Boxing Day (made out to be a second Christmas Day);

 

  1. If parents have agreed (or it is ordered) that one parent is able to travel away with a child/the children for the Christmas Period, take steps to ensure that as close as possible before Christmas that the children have a special ‘Christmas’ with the other parent at which time the children can have all the fun of Christmas but on a different day;

 

  1. If possible communicate with the other parent about what presents are being given;

 

  1. Try and maintain the special occasion for the child(ren), i.e. did your child have presents wrapped under the tree from ‘Santa’ on Christmas morning or did they have a stocking. New traditions are wonderful but if possible be on the same page with the other parent particularly if they are traditions enjoyed by your child;

 

  1. Be respectful!

 

  1. Try and reach an agreement about parenting arrangements for Christmas well before Christmas so each parent can make plans for their own household and their extended family;

 

  1. Keep in mind that if no agreement can be reached between parents for Christmas, there is have a cut-off date for filing Applications for arrangements for children during the Christmas Holiday period that parents want (or need) to be dealt with before Christmas. That cut off is presently 4:00p.m. on the second Friday in November.  Unless the Family law Rules change, this will apply every year.  Of course if the Court considers a matter to be urgent, exceptions may be made on a case by case basis however, what is urgent is determined by the Court, not a parent seeking to make an Application);

 

  1. Finally, enjoy your time with your children and do your best to ensure that they enjoy Christmas, let’s face it, Christmas through a child’s eyes is the best time of the year!

We wish you a very Merry and Safe Christmas.
By Sally Southwood – Accredited Family Law Specialist

 

1. Who can sue for defamation?

A person, a not for profit organisation or a company that employs fewer than 10 people (and is not related to anther corporation nor is a public company).

2. Defamation requires a statement to be untrue

In order for a statement to satisfy the legal definition of defamation, the statement must be untrue.  Someone has said simply something about you to which you take offence, is not necessarily defamatory.

3. Defamation requires a statement to be published

For a statement to be deemed ‘published’; it must have been communicated to a third person either intentionally or unintentionally.

4. Identification

The defamatory statement must identify you specifically or be reasonable taken to be about you.

5. Defamation requires an injury to reputation

If the defamatory statement you take issue with has not injured your reputation, then it will most likely not satisfy the legal definition of defamation. For example, if someone has spread a false rumour about you that you are a terrible dancer, you are unlikely to have recourse.

6. Concerns Notice

The first step in pursuing an action in defamation is sending a Concerns Notice.  A Concerns Notice is a written letter sent to the person who made the defamatory statement adequately describing the alleged defamatory material and seeking a remedy (including an apology).

7. Offer to make amends

If you have received a Concerns Notice, you could write an offer to make amends such that it is in writing and is readily identifiable as an offer to make amends. The letter could include:

– an offer to publish, or join in publishing, a reasonable correction of the matter in question;

– an offer to pay the expenses reasonably incurred by the aggrieved person; and

– an offer to publish an apology in relation to the alleged defamatory publication.

8. Acceptance of offer

If you accept the offer to make amends, you cannot sue the maker of the defamatory statement as the matter is then deemed resolved.

9. An apology does not amount to an admission of liability

If an apology made by the person who made the defamatory statement, it does not constitute an express or implied admission of fault or liability.

10. Defences

If someone alleges that you have made a defamatory statement, you could rely on the following:

    • Justification (if the alleged defamatory statement is substantially true):

 

    • Contextual truth;

 

    • Absolute privilege;

 

    • The publication of public documents;

 

    • Fair reporting of proceedings of public concern;

 

    • Honest opinion;

 

    • Innocent dissemination;

 

 

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