Interpretation of orders where additional information is supplied in parentheses.

[BUDJI]

Following final orders requiring parenting coordinator involvement, I have participated in numerous sessions without reaching agreement with my ex due to interpretation of the order related to the long school holiday period. A clause relating to being 'unable to agree' is in effect now and as a result there are two different views of the interpretation of the clause below.

(d) for one half the long summer school holidays as agreed between the parties and failing agreement the first half in even numbered years (commencing 26 December and concluding 5:00pm on the middle day) and the second half in odd numbered years (commencing 5:00pm the middle day and concluding 5:00pm the second last day of the holidays);

Parent A's view is that failing agreement, then parent B is to have time between 26 December and the middle day of the holidays being 9 January as per the information contained the parentheses.

Parent B's view is that because the clause states 'the first half in even numbered years', then they are to have half of the school holidays. Parent B is totally disregarding the clarification supplied in parentheses which follow.

The coordinator's opinion is that the orders are 'ambiguous and up for interpretation'. The coordinator stated that due to the word 'half' being in the order, then Parent B should be entitled to half the holidays, despite the the additional information in parentheses clarifying the intention of the clause, claiming 'half' was the intended 'spirit' of the order.

The interpretation of this clause increases/decreases the days of holiday entitlement by a factor of five days depending upon how the clause is understood and is the cause of much dispute.

Please provide any assistance or advice as to how the clause should be interpreted particularly in relation to to additional information supplied in the brackets.

 

[Atticus]

The coordinator stated that ...... 'half' was the intended 'spirit' of the order.

I agree that each parent having half the holidays is the spirit, or intention of the order.

The orders are also fairly clear in how that is to be shared in the absence of any alternative agreement, ie, in even numbered years, the first half, in odd numbered years the last half ... Nothing ambiguous about that IMO.

 

[Tim W]

That's not ambiguous, just complex.

 

[sammy01]

So the problem isn't with the orders. They are very clear. Just checking? final orders?
The problem you've got is that this stuff suxs and you need to learn to accept that fact (sorry). Is it really worth taking this back to court? nope.

That said, can you clarify, does this mean you never see the kids christmas day?

 

[Atticus]

When we these orders made?

 

[BUDJI]

So the problem isn't with the orders. They are very clear. Just checking? final orders?
The problem you've got is that this stuff suxs and you need to learn to accept that fact (sorry). Is it really worth taking this back to court? nope.

That said, can you clarify, does this mean you never see the kids christmas day?

Yes Final Orders made and sent via email December 2020. Provisions were made for each parent to see the children at Xmas.

The problem is the school holidays how to determine the meaning of 'middle day' in the wording of the order. Is the 'middle day' between 26 December and the second last day of the holidays, or is 'middle day' meant to be calculated between the start of the school holidays and the second last day of holidays?

The other party is claiming the date range is the whole school holidays and totally disregards the wording in parentheses. The relationship coordinator is not helping matters by claiming 'half' was the intended 'spirit' of the order and also seems to disregard the additional information provided in parentheses.

Why would a judge take the trouble to put the additional explanation in parentheses if it wasn't to clarify the time if an agreement wasn't reached??

Thank you for your advice, thoughts and interpretation(s).

 

[Atticus]

So the problem is actually determining the 'middle' day of the summer break school holidays ?

Unfortunately adding the word 'half' in this case is confusing, as the orders set out a date range ... I can now see the ambiguity the coordinator is alluding to.

As it is worded, there seems little sense in taking the 'middle' day as the half way point of the gazetted school break as the orders specify a date range, ie, commencing 5.00 PM from Dec 26th to 5.00 PM of the second last day. In that case the middle day should be the halfway point of Dec 26th & the second last gazetted day, but that would not be half of the gazetted break.

When the orders were made, was the intention that each parent have a 50/50 share of the entire gazetted summer break?

 

[sammy01]

Ok, you could have this seen to under the 'slip rule'. Basically, if it is apparant (and it seems to be) that there is a contradiction within the orders. Then you can apply to the court to have it rectified by the court register at stuff all expense.
So back in the day i had orders that mistakenly stated the kids spend time with their mum on Christmas on even years. The next clause said - the kids spend time with their mum on Christmas on odd years.

Clearly a mistake... Easily fixed under the slip rule. In this case, not quite as certain, but still worth a shot.