VIC Family Court - Interpreting Days Indicated in Final Orders?

[Lennon]

Hi All,

My ex and I live a long way apart. Kids have to drive several hours, then fly over 5 hours to spend time with me.

Final orders from family court say that they will spend time with me for "10 days commencing on the first Saturday of the school holidays".

How would you interpret an order that the children spend 10 days with me commencing on the first Saturday of the school holidays? Would the 10 days end on the following Monday or on the Tuesday?

 

[AllForHer]

10 days is, according to most Court trends, 10 overnights, which would make the changeover day the Tuesday.

I'd hazard a guess that the ex is arguing it's 10 days, 9 nights?

 

[Lennon]

10 days is, according to most Court trends, 10 overnights, which would make the changeover day the Tuesday.

I'd hazard a guess that the ex is arguing it's 10 days, 9 nights?

Of course she is.

I've even referred her to the regulations to the National Measurement Act, which defines day as 86,400 seconds lol, but she says (with no apparent basis) that this does not correlate to the orders.

*sigh* When does it end?

 

[Migz]

Lennon, it never ends... It's upsetting that theses Judges are paid nearly half a million dollars a year, and do this day in day out, that you would think that by now that they would have an excel spreadsheet just full of well written orders that they can refer to...

But no... it's the most antiquated system on the planet, with the most poorly written orders/instructions handed down day in day out, even a 5 year old could put together better orders/instructions.

So Lennon even with the way the order is written, are the children to be in your care as of Midnight on Saturday Morn? Or do they start travelling towards your home on Saturday?

Just proving once again this is nothing but a circus...

 

[sammy01]

10 days is 9 nights. Not the norm for the way these things are written, but I reckon it is pretty clear.

I reckon my ex would interpret that as me having to return the kids when the street lights come on each day...

Not worth a court battle on this one. Just return the kids on the last day at the same time as they were delivered on the first day

 

[AllForHer]

My husband's ex pulled the same nonsense, but the judge wouldn't have a bar of it.

So, there's basically two options:

1. Collect the kids on the Saturday and put them on the plane home on the Tuesday; or
2. Collect the kids on the Saturday and return them on the Monday.

Some considerations for each.

Option 1, I would say is pretty safe. Mum obviously lives a pretty far distance away, so it's not like she's about to cross the country to show up on your doorstep and pitch a fit about collecting them. She's basically going to have no choice but to wait until they fly back in the following day, then decide for herself if she's stupid enough to file for a contravention order.

It might even be a laugh and you'll probably get some clarity from the judge about the intended meaning, but no lawyer in their right mind will tell her she's got a good case to move on. Judges generally don't want to hear about a discrepancy of a single night which is Court ordered and when the offending parent lives across the country and hardly ever sees the kids.

Option 2 is probably going to cause more harm than good because you would be starting a trend in which mum thinks that she's in the right, and you'd be implying agreement to deviate from the orders. Don't let mum start making the rules when you already have orders.

We followed Option 1 religiously and never suffered from it (except, of course, for copping the brunt of the ex's SMS rage), but to each their own.

 

[Lennon]

10 days is 9 nights.. not the norm for the way these things are written... but i reckon it is pretty clear.

I reckon my ex would interpret that as me having to return the kids when the street lights come on each day...

Not worth a court battle on th8s one. Just return the kids on the last day at the same time as they were delivered on the first day

10 days is 10 x 24 hours, so includes 10 nights. If it's only 9 nights, they will be with me for less than 9 days (they arrive late afternoon and leave early morning, and have 8 full days in between). The judge ordered 10 days, he didn't order less than 9 days.

I can't return them at the same time that they arrive. It's literally impossible. They fly 5 hours and into a different time zone, and can't leave their capital city before a specified time or arrive after a specified time (to give my ex time to drive to the airport and back on the same day that they fly).

My husband's ex pulled the same nonsense, but the judge wouldn't have a bar of it.

So, there's basically two options:

1. Collect the kids on the Saturday and put them on the plane home on the Tuesday; or
2. Collect the kids on the Saturday and return them on the Monday.

Some considerations for each.

Option 1, I would say is pretty safe. Mum obviously lives a pretty far distance away, so it's not like she's about to cross the country to show up on your doorstep and pitch a fit about collecting them. She's basically going to have no choice but to wait until they fly back in the following day, then decide for herself if she's stupid enough to file for a contravention order. It might even be a laugh and you'll probably get some clarity from the judge about the intended meaning, but no lawyer in their right mind will tell her she's got a good case to move on. Judges generally don't want to hear about a discrepancy of a single night which is Court ordered and when the offending parent lives across the country and hardly ever sees the kids.

Option 2 is probably going to cause more harm than good because you would be starting a trend in which mum thinks that she's in the right, and you'd be implying agreement to deviate from the orders. Don't let mum start making the rules when you already have orders.

We followed Option 1 religiously and never suffered from it (except, of course, for copping the brunt of the ex's SMS rage), but to each their own.

We have to send her the flights details 28 days in advance, so if we book for the Tuesday she might not send them. I would file a contravention application so fast that her head would spin if she did that. Plus go her for costs, of course.

I'd be happy for her to send them then file a contravention application if we didn't send them back on the Monday (which she has threatened to do) so the judge can clarify the issue and so it doesn't drag on for the next 8 years.

I agree with you about Option 2. We haven't even had one lot of visitation under the final orders yet, and already my ex is placing bizarre interpretations on the orders and asking me to agree to the kids returning home a few days early on top of that. I am not going to agree to deviate from the orders, she's always motivated by self-interest rather than what's best for the kids.

It's all about child support, not that she'll admit it. She's trying to get me back under 52 nights (where she has kept me since separation) so that she is assessed as having 100% care. $28,000 in child support a year before judgment reduced to $21,000 after judgment, she's hurting and wants to get her care levels back up again asap.

 

[AllForHer]

Holy hell on earth, $21,000 in child support? Consequences of being a lawyer, eh? And here's my husband's ex, being angry about paying $7 a month!

Look, the choice is up to you. The big picture is that you hardly see the kids as it is, so for her to obstruct even that small amount of time is, well, petulant, but in the legal sense, I think she will struggle to establish a prima facie case for contravention when the orders are neither clear nor vague about what constitutes that ten day period.

What will be very clear and not vague at all is if she contravenes the orders by not sending the kids.

 

[Lennon]

Yep and she is all bitter and twisted about the fact that it's no longer $28k and that she actually has to pay for a couple of airfares herself.

I think you are right, neither one of us would be in a strong position to win a contravention case, the only clear breach would be withholding altogether. I wouldn't put it past her to do that, she's so angry about the outcome of the hearing and is behaving irrationally (in other ways too, not just this).

 

[AllForHer]

Mate, it took us two years and a DVO to reach a place of amicability after orders were sealed by the Court in 2015. The anger was palpable for a very long time.

I sincerely hope the dust settles for you both eventually. There's only so long a person can last before they grow weary of the fury.