NSW School holiday/ Christmas court parenting order confusion

[mjpSydDad]

The existing orders were drafted by wife's lawyers, and state that:

• Child A lives with both parents on a 7 day, week about basis
• "That Child A spend time with the Father for one half of all school holiday periods, being the first half in even numbered years and in alternate years thereafter and the second half in odd numbered years and in alternate years thereafter and that any provision for time in this order that is inconsistent with school holiday time be suspended during school holiday periods;" [bold added, otherwise exact extract from order]
  • Opposite true for Mother i.e. uneven/ even years
  • "Half" is calculated at the "midpoint" of each holiday

There are also orders in place for special occasions e.g. birthdays, Easter and Christmas which are in effect for these occasions regardless of who Child A lives with at the time.

Q - The order for Xmas Day falls in the school holidays. I want to go away, out of Sydney, to spend Xmas with my family at my elderly parent's place, and return Child A to mother at midpoint of holidays. Am I correct to read that the Xmas Orders are a "provision for time" which is "inconsistent with school holiday time" and should therefore be "suspended during the school holiday period?" This is my preference and allows us to enjoy Child A to fully enjoy Xmas each year, being with each parent on alternate years...

Any help is greatly appreciated

 

[sammy01]

Surely the orders stupulate the rules for special occasions eg Christmas.... And that is going to be the determining fact here.

How old are these orders. It seems like an error to have an order that states something about Christmas day BUT then contradicts itself with the bit you've put in bold.

I'm guessing these orders are new? I'd be contacting your solicitor to see what they think. But i do think this is an error. You can't have an order that provides for mum to see the kid on Christmas BUT then have an order that removes that provision.

I'm guessing? the 'inconsistent with school holidays' simply means the routhine 7 day cycle is the bit that is suspended during holiday time NOT the special provisions orders for Christmas, birthdays and the like.

 

[Step2Three]

Agree with Sammy- it makes no sense to have orders about how to spend Christmas (and Easter) when the holiday provisions would otherwise stipulate how they should spend that time. The intent would be for the Special Occasion order to have precedence over the general holiday time.
Now if you want to split hairs, and assuming the special occasions don't contain a similar clause (i.e. these override other others), sine you haven't articulated those specifically, there may be a technical argument to be made that the school holiday arrangements apply, but it's clearly not what the orders are intended to achieve.

 

[mjpSydDad]

Thanks Sammy01,
The interim orders were certified 11 June 2020, hence this is the first time the issue has come up. I provided proposed dates for the holidays, and received a terse response from ex's lawyer, which prompted me to review the orders in details.
I agree that it is inconsistent, but it is in line with what I have ben asking for for 2 years, which is that Xmas (and other special occasions) fall with the parent Child A lives with, and given the alternate year arrangement, that we receive equal share of time in the long run.
There is a separate order which suspends the 7 day school term cycle for special occasions, but it does not reference the school holiday order, which follows this, and suspends all others.
I am seeing my lawyer tomorrow afternoon, but given the timeline and potential ramifications I want to open the dialogue with my ex asap.
P

 

[mjpSydDad]

Surely the orders stupulate the rules for special occasions eg Christmas.... And that is going to be the determining fact here.

How old are these orders. It seems like an error to have an order that states something about Christmas day BUT then contradicts itself with the bit you've put in bold.

I'm guessing these orders are new? I'd be contacting your solicitor to see what they think. But i do think this is an error. You can't have an order that provides for mum to see the kid on Christmas BUT then have an order that removes that provision.

I'm guessing? the 'inconsistent with school holidays' simply means the routhine 7 day cycle is the bit that is suspended during holiday time NOT the special provisions orders for Christmas, birthdays and the like.

@Step2Three thanks, I know I am getting technical, but I feel like I have had so much rammed down my throat that when the legal interpretation of the order provides me with what has been requested all along, I am prepared to take the technical victory. The special occasion orders do not contain any precedent or supercede clause in any form.
I don't wish to be a bad human, and am happy to discuss options with mother to best resolve situation, but am trying to clarify the legal position

 

[sammy01]

what do the orders say is to happen at Christmas?
If the orders specify in even years mum has the kid from noon on Christmas day (for example) Then that validates my argument that the time being suspended is purely to do with changing the routine week about school time roster and has nothing to do with special occasions provisions.

So what do the orders say should happen on 'special occasions'? Do they say anything specific about Christmas?
I don't think you have a leg to stand on here IF the orders say something specific about Chrissy and the suspension thing is just about cancelling the normal week about roster. To help. Do the orders provide a provision for who has the first week at the conclusion of holidays as that might provide clarity that my interpretation is right.

BTW just requesting orders doesn't mean that is gonna happen.

Just outa interest... If you've got 50/50 why are you still in court?

 

[mjpSydDad]

@sammy01 The orders do specify Xmas and Easter times alternate years, and note that they (special occasions including Xmas/Easter) override the school week-about section of the order. This does not reference school holiday orders in any way, which are as quoted in my original post, being such that "any provision for time in this order that is inconsistent with school holiday time be suspended during school holiday periods"

School holidays are shared 50/50, rotating through alternate years. Mother has first 1/2 of all holidays one year, vice versa in alternating years. At end of holidays child returns to other parent on first Friday after commencement of school.

I'm very aware that orders being granted involves demonstrating a strong legal position and superior benefit for child, which has been successfully demonstrated previously during this matter.
We are still in court as current orders are interim only and mother is trying to reduce the time spent with me on final basis.

My head is spinning.

 

[sammy01]

Ok, so give us the exact wording of the order relating to chrissy? special days?
Mate if she is trying to minimise your time and you have 50/50 I'd suggest you suck this one up for the long term greater good. But at this end I reckon you've got this one wrong.
But you've gotta give us the wording of the orders pertaining to special occasions. Does it say something like the child will spend time with one parent from ??? o'clock on Chrissy day?