VIC Family Court - Interpreting Days Indicated in Final Orders?

[sammy01]

Sorry mate, I was being silly (well, my ex is). If we had that, she would refuse to send the kids because I could not have them back at the end of the day... When the street lights come on... was a laugh. (But you have not met my ex.)

OK so I'm a bit of an expert in this one... My ex nearly convinced CSA to calculate the time we have with kids in hours, not nights. like normal people.

I'd suggest you submit the court orders to CSA and let them play... I'd be crazy enough to suggest you even do the insane 'hours' game depending on how this goes... See if you're paying for the flights, then the flight time might be time with you. But play the game with them first. Cheaper and easier. Let them interpret the orders and come up with a care %.

That don't work... Get back to us about contraventions.

So submit the orders, ask them to do the math. Before you do that maybe post the nitty gritty details here (no names) so the good folk here can help you out... I'd really like a look.

So firstly CSA will interpret the orders, they will work out the care %. Let them do their job based on the orders. See what they come up with.... If that don't work get back to us.

If you can do the math here that would help heaps... I'm just trying to understand how close to 52 nights you are...

BTW CSA calculate on nights - But they can in sensible situations do hours. And I'm a little bit confident that they know the games people play.

Story time... My ex convinced them to do it in hours. She is a tricky one... So instead of me dropping the kids at school, I had to leave them with her, outside the school. Didn't fuss at the time, as it got me 3 more nights a fortnight... But she asked for CSA to calculate in hours.... So with me dropping the kids with her, then her taking them to school - she thought she could classify the school hours as time with her. The difference? 34% care, not 38 if done in nights.

They eventually decided to do in in hours... But the school hours were excluded (but only after appeal to aat). It actually increased my care % by 1 %.

 

[Lennon]

Lol thanks Sammy, sense of humour bypass here at the moment.

I have submitted the orders to CSA with my calculation of nights, my ex has disputed my calculation and it is currently with someone at CSA who will apparently make a decision on it very soon.

I actually think that even if they accept her interpretation, I'm pretty safe (we have 65 nights by my calculation and only need 52 to be assessed as having regular care rather than 0 care). I think she's trying to chip away at the nights, take 4 off me by using her special interpretation of "10 days". Take a few extra off me later on in the year, perhaps by planning a holiday and trying to guilt me into agreeing to reduce time etc.

Your story is appalling and just the kind of thing I expect my ex to do. Excluding the school time is so logical, I am surprised CSA didn't do it that way themselves when they decided to count by hours. It should have been completely obvious that she was trying to manipulate them.

I'll have no hesitation in taking it to the AAT if they somehow manage to calculate 65 nights/year down to 51.

(65 nights is arrived at by 10 days in term 1 and 3 holidays, 17 days in term 2 holidays and 28 days in term 4 holidays). My ex argues the same point about "days" in relation to each of the holiday periods.

 

[sammy01]

OK so I'll deal with your math later... But to help you sleep...

I could not do the hours any other way... I was at 34.79% right on the cusp. So according to the legislation 34.9999 gets rounded down. 64.1 gets rounded up. Don't get me mad. Nope, mad... That is insane... No math teacher would do that. Mad.

But - it is all calculated based on when you lodge... So like I said, I could not do the math any other way to get the extra .31%. So I lodge the paperwork and they start doing their math from that date...

So that is the start of the assessment year, not Jan 1... 3 or 4 things work out for me... It was a leap year, Easter fell early. The day I lodged was a Tuesday and I have the kids on Wednesday... If I'd have lodged on Thursday that would have changed things... I wind up with 35% based on hours. Not a minute to spare... Bingo...

But I cant' help but think the CSA mob could see that this was a scam and didn't appreciate the ex trying to use them to do me over...

Mate - if you win the CSA argument, don't bother with court over the interpretation. But do CSA first, don't need lawyers for that.

 

[Rod]

If you want the legal answer refer to: ACTS INTERPRETATION ACT 1901 - SECT 36 Calculating time, item 5. Cth court so use the Cth interpretation act.

 

[Lennon]

Acts Interpretation Act is for the interpretation of legislation not orders though.

 

[Lennon]

But - it is all calculated based on when you lodge... So like I said, I could not do the math any other way to get the extra .31%. So I lodge the paperwork and they start doing their math from that date...

So that is the start of the assessment year, not Jan 1... 3 or 4 things work out for me... It was a leap year, Easter fell early. The day I lodged was a Tuesday and I have the kids on Wednesday... If I'd have lodged on Thursday that would have changed things... I wind up with 35% based on hours. Not a minute to spare... Bingo...

So I guessed this was the case but wasn't sure. They should make that clear. I waited until a point where from the day of lodgment, the next 365 days gave me 65 nights care (in my calculation).

 

[Rod]

Yes, I understand that part. But I can't see why orders made by courts would have a different definition. Will check a few cases .....

You can write to the judge's associate asking for an interpretation querying whether the judge's meaning follows the Act or has some other meaning

 

[Lennon]

Yes, I understand that part. But I can't see why orders made by courts would have a different definition. Will check a few cases .....

You can write to the judge's associate asking for an interpretation querying whether the judge's meaning follows the Act or has some other meaning

There's a definition of "day" in Schedule 1 of the National Measurement Act 1960. I think that would apply here.

 

[Rod]

Hmm, didn't find schedule 1. Looking at the objectives of the National Measurement Act 1960 I'm not convinced you can apply it to parenting orders. The Act is normally to be used in trade. Admittedly I didn't read the whole Act looking for ways in which can be creatively applied to other circumstances.

Looked for cases that may help divine a definition and didn't find one.

The only other way to approach it is the natural and ordinary meaning of the word/phrase. So 10 days could be midnight to midnight for 10 days (unlikely in this context), or 10 lots of 24 consecutive hours.

10 lots of 24 hours makes the result Tuesday

 

[Lennon]

Schedule 1 is in the regulations. I have seen it referred to in a couple of family law cases as providing a definition for day.

But yes, the answer I think is the natural ordinary meaning of the word, 24 consecutive hours.