Yet another parenting orders Q

[GlassHalfFull]

OK. So it never really ends, does it? It turns out that our parenting orders are just vague enough that there's some confusion about my time with the children over the Easter holidays. Here in Victoria at least, school holidays started on Friday 8th April. School officially goes back on Tuesday 26th April since Monday is Anzac Day. My ex and I are (at least as things stand) in a disagreement. Our orders specify my Easter school holidays time for the following:

That the Father spend the following additional time with the children as follows:-
* For the Term 1 2022 school holidays from 10am Friday 8 April 2022 to 10am Monday 11 April 2022 and 5.30pm Easter Saturday 16 April 2022 until 5.30pm Tuesday 19 April 2022

and then in a separate paragraph addressing other things:

That the Father’s time be suspended at times as follows:-
(a) During school holiday periods the father’s term time be suspended and resume thereafter as if the holidays had not occurred

Either by accident or otherwise, there is nothing contained in the orders for the weekend from Friday 22nd to Sunday 24th which normally be my weekend with the children. My ex believes that since school doesn't return until Tuesday the 26th April, I would not have that weekend. I believe that technically the last day of the school holidays should be Friday 22nd since it's the last weekday (that isn't a public holiday) prior to school starting. She believes that we should go by the gazetted school terms (of course she would since it advantages her).

Normally I would not make a big deal of this, but this was not in the spirit of the mediation that produced these parenting orders by consent. If she is right, effectively that means that I have LESS time than normal with the children during the school holidays than I would normally have during the rest of the year. The principle by which we were negotiating the Easter holidays was that they should be split near enough 50/50 and the main reason we didn't agree on larger blocks of time was that the 4 day Easter break would have fallen mainly on one person's time, so we agreed to split that 4 day period in half. However, I don't believe it was ever intended that I would not have any time from Tuesday 19th onwards, and I feel that the assumption was that the last day of the school holidays would be Friday 22nd and we would resume normal time from then onwards. Especially since that would normally have been my weekend. If what my ex says is correct, I would not have a full weekend with the children for 4 weeks, when it should normally be every second weekend and INCREASED during school holiday periods.

The other confusing thing in our orders is that it specifies ADDITIONAL time, and yet it's not really additional if my regular time is suspended. It's just substituted rather than additional time. I suspect this is just a quirk of our orders that could have/should have been weeded out but nobody noticed at the time.

My question, summarised, is this:

Is there a legal basis for assuming that school holiday periods are as officially gazetted (which is inclusive of weekends right up to the morning of the first day back at school), or are they assumed to be until the last weekday that would normally have been a school day had it not been for the holidays? Or is there effectively no precedent and it's up to parents to figure it out? I've tried to research this point prior to posting, and I haven't been able to find anything conclusive.

 

[Match]

That absolutely sucks. Can see both arguments but to me, yours is more valid because the point of the orders is to allow extra time over holidays.

And of course it’s that awkward timing where it’s kind of dodgy to withhold with those days in the middle. (Otherwise I’d be thinking “sorry, we’ve booked a trip. We’re interpreting the orders differently. See you at usual time.”) And she’s essentially saying kids won’t be available ANZAC weekend so onus is on you to pursue contravention which is a pain - and she might have an excuse with the school dates.

If it helps, I’ve spent 3 years dealing with very similar behaviour from my partners ex-wife, and we’ve tried our best to bite our tongues, scream internally and not make a fuss when she does stuff like this - and focused on making the time we DO get as good as possible. And let me tell you, his kid is now at an age (finally) where they are telling mum they want to see more of dad, reaching out to dad all the time over texts, their relationship is THRIVING (and it’s extra gratifying because having to suck it up all the time and just deal with it when you’re a dad missing your kid is awful). I’m sorry you’re going through it.

 

[GlassHalfFull]

Yeah it does suck. Especially when there is that grey area where both sides have a fair point because the wording of the orders is just vague enough that two different people can have two different interpretations. One extra thing I would note is that the orders don't specify gazetted school holidays for the Easter period or any other school holidays, except for the gazetted school holidays for Summer 2021/2022 holidays and Summer 2025/2026 holidays. Which is strange and may be the result of multiple revisions. It could imply that the definition of school holidays "as gazetted" is only for the long summer holidays rather than all holidays.

But the question remains... if the term 'gazetted' is specified in some lines of the order but not others, does that imply that there has been an accidental error and gazetted should be assumed for all, or does that imply that it is only the gazetted holidays when specified and that "school holidays" could be defined as only be the days that "school would normally be in session but due to school holidays is not in session"? In which case, the last day of the school holidays is the Friday 22nd.

As you rightly point out though, there is the absolute strictest interpretation of the orders, and then there is the fair interpretation of the orders. If something has been omitted from the orders by accident, the fair thing to do would be to honour the spirit of the orders, but it never seems to work that way with my ex. She asks for flexibility when it suits her and she denies it when it doesn't.

I do think that eventually the kids will start to push for more time too, but they're still very young and respect their mum's decisions so it's probably many years away still and I will almost certainly have to go back to court even though we have final orders (I have to wait as per Rice vs Asplund) as I would like to pursue new arrangements closer to 50/50 once my kids are all in primary school - my lawyer had said that would be the point in time where it would begin to be a more realistic proposition. My ex has resisted any increase in time ever since we separated and ended up in the family law black hole. Even when my then 3-4 year old daughter was telling me "I tried to tell mum I'm ready to have sleepovers at your house, but she told me no and that the judge has to decide". She never once acknowledged the reality that 'the judge' only had to intervene when the controlling parent refuses to allow it to happen. If she had just been reasonable and respectful of the children's right to an equal relationship with both parents, we could have come to some kind of arrangement far easier (and cheaper for us both). Anyway, clearly you understand. I'm preaching to the converted here.

 

[sammy01]

https://education.nsw.gov.au/content/dam/main-education/public-schools/going-to-a-public-school/media/documents/Calendar_2022_A4.pdf

I know it is NSW. I expect Vic would be the same. It states term ends Friday... and then school holidays start on Monday. So if you look at July - the last day of term is Friday 1st July and the holidays START Monday 4th July.

I'm a school teacher. My ex's favorite stunt was to tell me the student free days that occur on the first day of term are still part of the school holidays. So in the alternate year that i had the second half of the holidays she would drop the kids of on the Thursday of the second week of the holidays. Giving me 5 nights, starting at5pm on the Thursday, so in reality 3 full days - Friday - Sat - Sunday with my parents looking after the kids on the Monday because it was a work day.... Why 5 nights? Well the 'holidays, according to the link are only Monday-Friday - Weekends don't count, so I'd get 5 nights (including the weekend WTF - that according to HER don't count).

Which brings me back to the same conversation I have with you... Sure you're right (well kinda - I disagree with you about the covid debacle - but let's move on) But with this one you're right. Gonna take it to court? nope. Gonna let your blood pressure go up over it. HELL YES. Write to her solicitor and not get a response? GREAT.
So i'm back to the same old argument with you. You can't win, so stop fighting. Shrug your shoulders, let her know that you feel all of this crap is just about minimising your time and that given she has more time as a care % it wouldn't kill her to give a little and then go outside and kick the bins over and swear at the moon. But she isn't gonna agree so why fight and lose? Yeah I know - it is the principle... But she doesn't care and loves knowing it is hurting you. Don't give her that....

But legal advice - if you do think there is a clear mistake then google the slip rule. BUT my concern is that you might have some merit in arguing the vagueness of the orders in this instance, given in other instances (summer break) it clearly states 'gazetted holidays' but who is to say the court registrar wont just amende the orders so that all holidays are as per the gazetted? So you win the argument in getting the holidays clarified but still lose the time.

 

[GlassHalfFull]

Well, ultimately what I'm doing even if I don't get a 'win' in any given situation is ensuring I do all I can to clearly communicate that it's the children that are missing out on time with their father in circumstances where there was no good reason to do so. And in doing so, I'm documenting all the instances in which she is petty doesn't put the interests of the children first and makes it difficult for the children and I to maintain a relationship that is consistent and meaningful.

Although we have final orders, I have no doubt that we'll be back in court eventually, whether it be for a contravention or simply to revisit the orders. My lawyer had previously told me that due to the young ages of the kids (3 and 5 at the time of final orders), it was difficult to argue for more than 4-5 nights a fortnight. However, she said that once my youngest is in primary school (2024), it would effectively be 'game on' in terms of negotiating closer to 50/50. Unfortunately my lawyer did also say that as is often the case in these parenting situations, the fact that there is conflict between us plays into the hands of the difficult controlling parent with majority care, because a judge is likely to look at the situation and conclude that although I have been and will continue to try really hard to co-parent and communicate and be the best father I can be to the children, if the mother is unwilling to co-parent sensibly and treat me as an equal and valued figure in the children's lives, 50/50 is perhaps not the best arrangement for them. So we will have to see where the chips fall there, but my point is, there is more to it than just winning individual battles for control over a couple of days here or there. If I can show a consistent pattern of behaviour over a long period of time, maybe, just maybe I will convince a judge to actually finally do something meaningful about it.

 

[sammy01]

Just a thought. I gave up fighting the battles. She would withold the kids IF there was a party she wanted to take them to. She would 'offer' make up time. But in reality the make up time was when she had a party that she DIDN"T want to take the kids to...
I had 5 nights a fortnight, never bad mouthed mum - But she was brutal to the kids about me.

So right about the time I came to realise that 5 a fortnight is pretty sweet. After all I work, she doesn't. The kids looked forward to their 5 with me and they hated going back. So in reality 5 a fortnight was good.... That is when the ex told me she was going to move 7 hours away. She was confident she'd get court approval. I told her taht IF she got court approval I would simply move to her new location and since I was having to relocated I'd ask for more time... As you know, she dumped the kids and left...

But my point is play nice. Don't stress too much about the future. But if you're going to think about what might happen down the road, consider this... Mum continues to be a nutter, you are reasonable. Kids become teenagers and vote with their feet....

 

[Rccbf]

Just a thought. I gave up fighting the battles. She would withold the kids IF there was a party she wanted to take them to. She would 'offer' make up time. But in reality the make up time was when she had a party that she DIDN"T want to take the kids to...
I had 5 nights a fortnight, never bad mouthed mum - But she was brutal to the kids about me.

So right about the time I came to realise that 5 a fortnight is pretty sweet. After all I work, she doesn't. The kids looked forward to their 5 with me and they hated going back. So in reality 5 a fortnight was good.... That is when the ex told me she was going to move 7 hours away. She was confident she'd get court approval. I told her taht IF she got court approval I would simply move to her new location and since I was having to relocated I'd ask for more time... As you know, she dumped the kids and left...

But my point is play nice. Don't stress too much about the future. But if you're going to think about what might happen down the road, consider this... Mum continues to be a nutter, you are reasonable. Kids become teenagers and vote with their feet....

I like your down to earth wisdom 👍

 

[Bananatree]

We have extremely similar wording in our orders and have had it clarified by multiple solicitors. We have been advised that the school holidays include from friday when school breaks up until the morning school resumes unless specified otherwise in the orders. As such we had an order added stating the holidays conclude 4pm the sunday prior to the first day back.
Sorry, but i would interpret this with your ex's version. However i am not sure how that means you miss out on 4 weekends? You have the 9th/10th april, half the 16th/17th april then the 7th/8th may by my calculations.
Whilst the orders are designed to provide additional time over the holidays this is usually weekday time. With there being 2 clear weekends (excluding the easter split weekend), it seems logical that they would be shared.
I also think the allocation of the first weekend to you implies the spirit of the orders to include the first and last weekend of the holidays. If the holiday time included weekdays only (so would start on the 11th) then why is your time specified for prior to the commencement of the holidays?
Just my thoughts... I personally cant see you winning this one and would caution that fighting it may make you seem like the party unwilling to work with the other parent.

 

[GlassHalfFull]

Hi bananatree,

While you may be right about how it should be interpreted, that wasn't the spirit of what we had negotiated (school holidays to be split 50/50).

I didn't say that I would miss out on 4 weekends, I said that it would result in 4 weeks (well almost) without a full weekend, which is true. Yes I started the Easter holidays with a weekend, but I only have half of the current Easter 4 day break which is part weekend and part public holiday, and some of my time is a normal work weekday (Tuesday). My ex gets the same so at best you could say that she gets the same as I do so it's not really "my weekend", it's split 50/50. So if you want, I could put it this way: My ex would get half of Easter and then 2 weekends in a row, while I get half of Easter and then the grand total of my time with the children over the next 18 or so days would be JUST 2 weekday overnights (in which i get at most 2-3 hours of quality time) before I have a normal weekend again. So effectively my ex gets 16 out of 18 days and I get 2. Normal arrangements are that I have 5 days per fortnight. 😔

The other thing that I didn't mention in detail previously but since you're talking about it, I would have been happy to split the weekdays equally too rather than 'hogging the weekends' but my ex refused to let me have more than 3 days in a row because she argued that my youngest (who is nearly 4) wouldn't cope. It was just yet another attempt to control the time I spend with the kids and make her seem like she is the only parent that the children seek for comfort. The reality is that they're always happy to stay longer with me and don't show any sign of wanting to go back to her but obviously the lawyers tend to go with safe rules of thumb about time away from the primary carer because they aren't aware of what the kids can and can't cope with.

Anyway, for that reason, that's how the time got allocated while still dividing the 4 day Easter break in half. As you say, the way the holidays fell, my 'normal' weekends would have been on the first and last weekend of the Easter holidays so yes I got the extra days over Easter, but I also lost two regular weekday overnights (2 X 24 hour periods) that were cancelled for the school holidays. So even with having the 1st and 3rd weekends, it was only a slight increase in time. But without having the second weekend, it's an actual reduction in time with the children and creates a much longer period without having substantial time with them after the school holidays are over.

Honestly, I would have preferred to stick with the normal school term routine than have wasted mediation time negotiating "special holiday time" if I had realised it would end up this way. It's just so obviously a mistake and I'm sure my ex knows it, but she's happy to take advantage of it even though it's not fair on the kids. That's the part that frustrates me the most.

 

[Bananatree]

Hello,
Im not arguing it sucks... i was just providing my interpretation of the orders.
In my experience there is always things found with orders after they are written which do not work but unfortunately we tend to be stuck with them.
We had the case one year where birthday, easter and school holiday provisions were all in action for one weekend. This resulted in 5 changeovers in 2 days as they had to be overlaid according to solicitors. Of course we tried to request they just get split down the middle but it was denied (anything to make life easier always is). So as ridiculous as it was (especially as changeover is relatively far away and i also had a newborn and toddler at the time) we had to spend the whole holiday period doing changeovers. This issue occurs regularly just not to the same extent, always with the same result.
Whilst you could do a nicely worded email to the other side requesting a change in the spirit of half the holidays chances are it will be denied and all it will cause you is stress. Personally i would take sammys advice and just take note of it for if/when you get the chance to renegotiate orders.