VIC Family Court - Interpreting Days Indicated in Final Orders?

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now

sammy01

Well-Known Member
27 September 2015
5,154
721
2,894
Just agree with her... I did the math taking 4 or 5 off your total - So effectively counting nights not days.
You're still at 60 or 61 so well above 52 night cut off.

I don't think it is worth more stress in court to get n interpretation on days... Let her win that one... Give it a year or so then ask if she'd mind if you have an extra night here or there... When the dust settles and she realises that CSA are not going to change things for a day here of there MAYBE she'll be nice to you... Heck, I'd go one further, if she is asking for the kids to be returned a day early here or there, I'd give her a strategic day or so with an understanding it could be re-paid down the way... BUT keep her away from 52 night. Besides one off swapsies will be ignored by CSA
 

Rod

Lawyer
LawConnect (LawTap) Verified
27 May 2014
7,820
1,072
2,894
www.hutchinsonlegal.com.au
I say don't agree. Kid lives on other side of the country and Lennon does not see his child very often.

The first step is to ask for clarification from the court, not apply to court for a contravention. Easy step to make, no cost and something well within Lennon's capabilities.
 

sammy01

Well-Known Member
27 September 2015
5,154
721
2,894
Rod, is it really worth the contravention application? and all the stress... For 3 or 4 days a year??? hell no... Especially once the dust settles and she just might see reason...
BUT if you wanted to chase it up, why not check out the slip rule... In short request the orders get reviewed under the slip rule. Basically you need to demonstrate that there was a typo.. Magistrate meant nights as that is the way this stuff tends to be done and the confusion needs clarifying.

I've had success with that one when my consent orders contradicted themselves, it was clearly a typo / admin error, but the ex used it to justify trying to keep the kids away from me at Christmas in both odd and even years. That was never the intention of the orders and it really messed me around... Court fixed it via a letter from my solicitor at no cost to me...
 

AllForHer

Well-Known Member
23 July 2014
3,664
684
2,894
I don't think there's a risk of contravention proceedings lasting very long over three nights a year.

But if she withholds 30 night because of three nights a year, I think contravention proceedings are well worthwhile.
 

Rod

Lawyer
LawConnect (LawTap) Verified
27 May 2014
7,820
1,072
2,894
www.hutchinsonlegal.com.au
It is a decision Lennon makes, I don't think there is a right or wrong answer. Lennon should do whatever feels right to him. Access to his own child is a very emotive and personal choice he has to make under difficult circumstances.

Sometimes people just need to make the attempt, suffer the angst, before coming out the other side in a better position. Oftentimes the difficult road needs to be attempted so the person can either say they got there, or they attempted and failed. For some people, not trying is the worst thing they can do.

FYI re: Slip rule. This is not technically a slip rule. It is an interpretive issue and just requires clarification, not fixing.
 

sammy01

Well-Known Member
27 September 2015
5,154
721
2,894
Yep folks gotta make their own call...
But I reckon the slip rule is a good start... Why? well it is free (or very cheap) letter to the courts asking is there a mistake... Of all the cases I've read magistrates always stipulate nights per year, or more often neither day or night are used... The orders just say from Friday to Monday or what ever.... Hence the argument for a request for it to be assessed under the slip rule.... AND IF the courts refuse to amend it under the slip rule, then I reckon Lennon can walk away with his tail between his legs, but he gave it a go... He got told NOPE the intention was days and he needs to suck it up...

BUT given Lennon reckons this is entirely motivate by child support. I reckon his best bet is to wait until CSA determine his care % and assuming he has more that 52 nights, the argument will end because the motivation for the argument is gone....

That said - 10 days means exactly that 10 days. so for example from 9am on Monday - until 9am of the Wednesday in the following week. 10 NIGHTS means exactly that - so for example 9am Monday until 9am on the THURSDAY in the following week.

Hey lennon - things could be worse... Help me with this one... What happens when order say half of school holidays... What happens when there is a public holiday or easter tagged on.. So For example years back there were 15 nights in the holidays - 2 weeks and 1 day due to a public holiday... How do you divide 15 in half? Do change over at midnight? I suggested the ex just let me have the extra nights since she has more time with the kids anyways... She said NOPE... Pissed me off at the time... Looking back, I really wish I had not gotten so upset... WHY? Well it means she won, she got the extra night and she got to piss me off...
Mate your ex is kinda winning.. WHY? well she has sent you bonkers enough that you worked out how many seconds there are in a day.. 3066 - that is how many hours equates to 35% of the year... I can remember that number even though about 5 yrs have passed since I was in a similar crazy place to you. Not legal advice, just some wisdom I've picked up along the way... When the ex has you searching databases for a definition of a basic term like day OR night you have been sucked into the crazy place where the ex lives... It is a crazy place where Alph the secret river runs through caverns measureless to man down to a sunless see...
 

Rod

Lawyer
LawConnect (LawTap) Verified
27 May 2014
7,820
1,072
2,894
www.hutchinsonlegal.com.au
10 days. ... 9am on Monday - until 9am of the Wednesday in the following week.

No. Count again:

1 9am Mon-9 Tues
2 9am Tues-9 Weds
3 9am Wed-9 Thur
4 9am Thur-9 Fri
5 9am Fri-9 Sat
6 9am Sat-9 Sun
7 9am Sun-9 Mon
8 9am Mon-9 Tue
9 9am Tue-9 Wed
10 9am Wed-9 Thur
 
  • Like
Reactions: Lennon

sammy01

Well-Known Member
27 September 2015
5,154
721
2,894
I kinda agree... I at least think the intention was 10 nights... But the argument isn't with me... It is with Lennon's ex. She aint gonna send the kids (I think) IF he provides travel plans that only allow 9 nights.
How to proceed? book for 10 nights and do the contravention if she refuses to send the kids? Not my preferred option...

I would slowly learn to suck it up... We're talking 4 nights a year... Especially if it makes stuff all significance to child support then I'd advise to let it go... TMultiple choice time...
A) suffer the stress of fighting it (and possibly losing)
B) swimin the tranquil river of not giving a fcuk and stressing less about pettiness of the ex

Know what I'd do... Pack my swimmers.

So my ex liked to tell my kids about how it was all my fault... At some point I chose to quit fighting, especially once I had the orders and my time with the kids was roughly guaranteed, save for a night or two here where she refused... So there was stuff like her telling me the kids had better stuff to do and they would be thre on Saturday, not Friday... So for a few years I fought and lost and she thought it a great game because she always won... Stealing a night here or there wasn't worth doing a contravention over, so all I could do was stamp my foot and tell her that she wasn't complying.... When I quit fighting, my blood pressure went down.

I just don't think this fight is worth all that much effort, especially once CSA assess him at above 52 nights...

oops forgot - just for fun allforher mentioned she gets $7 child support a month.... Show off... $7... that is $7 more than I get
 

Lennon

Well-Known Member
11 September 2014
270
36
719
BUT given Lennon reckons this is entirely motivate by child support. I reckon his best bet is to wait until CSA determine his care % and assuming he has more that 52 nights, the argument will end because the motivation for the argument is gone....

Well, it's about child support AND her burning desire to be a martyr AND her desire to gain some control back. The number of times she said during the court proceedings that she was "raising the children all by herself with no help from anyone" was *incredible*, particularly given that her ability as a parent was not in issue. She didn't understand (still doesn't) that no-one cared about that, the only question was how much time the children should spend with me.

She loves to tell people that she's doing it all by herself (of course without ever mentioning the child support she receives or the fact that I have always sought more time with the children).

Hey lennon - things could be worse... Help me with this one... What happens when order say half of school holidays... What happens when there is a public holiday or easter tagged on.. So For example years back there were 15 nights in the holidays - 2 weeks and 1 day due to a public holiday... How do you divide 15 in half? Do change over at midnight? I suggested the ex just let me have the extra nights since she has more time with the kids anyways... She said NOPE... Pissed me off at the time... Looking back, I really wish I had not gotten so upset... WHY? Well it means she won, she got the extra night and she got to piss me off...

This is why I wanted to avoid the "half holidays" thing - plus I wanted (and got) slightly more than half holidays, and wanted a precise amount of time in the orders so we didn't have to argue about interpretation. I just did not foresee an argument about what a "day" is lol.

Mate your ex is kinda winning.. WHY? well she has sent you bonkers enough that you worked out how many seconds there are in a day.. 3066 - that is how many hours equates to 35% of the year... I can remember that number even though about 5 yrs have passed since I was in a similar crazy place to you. Not legal advice, just some wisdom I've picked up along the way... When the ex has you searching databases for a definition of a basic term like day OR night you have been sucked into the crazy place where the ex lives... It is a crazy place where Alph the secret river runs through caverns measureless to man down to a sunless see...

Noooo she's not. She's losing and she hates it. She completely lost in court. She lost her pride because she resorted to telling huge lies to try to win, so she knows I don't have any respect left for her. She had to sell an investment property that her deceased father helped her buy, to pay the fees of lawyers who did an awful job at representing her. She's no longer able to control the information the children's school or medical practitioners gives me. She's lost the control she had over my time with the kids. She's lost the control she had over my communication with the kids. She's now forced to contribute to their airfares for the first time. She must know that she's going to lose with the CSA.

On top of all that, if she wants to fight me on this "day" issue she'll have to pay even more money for legal expenses, which she can't afford (nothing left to sell, no more inheritances left to blow, child support about to drop by 25% per year).

She's losing all over the place, and she is furious about it. :D

No. Count again:
1 9am Mon-9 Tues
2 9am Tues-9 Weds
3 9am Wed-9 Thur
4 9am Thur-9 Fri
5 9am Fri-9 Sat
6 9am Sat-9 Sun
7 9am Sun-9 Mon
8 9am Mon-9 Tue
9 9am Tue-9 Wed
10 9am Wed-9 Thur

Yes.

I haven't heard anything further from her. I am going to book them on the dates I believe are correct. The test will come when I send her the flight details at the end of this month.

She has to book half their return flights, so maybe she will book those flights on the days that she believes are correct, and I'll book them on the days I believe are correct, and we'll just spend the next 9 years disagreeing on the subject.
 
  • Like
Reactions: Twooke

Rod

Lawyer
LawConnect (LawTap) Verified
27 May 2014
7,820
1,072
2,894
www.hutchinsonlegal.com.au
I have seen it referred to in a couple of family law cases as providing a definition for day.

BTW, do you still have the references? I'd like to file them away for another day. :) I had another look in other databases and didn't find anything. Annoys me because my researching is normally good :(