Haden and Nestor

[2016] FamCA 669

FAMILY COURT OF AUSTRALIA

HADEN & NESTOR [2016] FamCA 669

FAMILY LAW – CHILDREN – VARIATION OF PARENTING ORDERS – Where final parenting orders had been entered into between the parties – Where a dispute arose as to the interpretation of the school holiday period – Consideration of the best interests of the children – Orders made clarifying the commencement and conclusion of school holidays for the purpose of the parenting orders

APPLICANT: Mr Haden

RESPONDENT: Ms Nestor

FILE NUMBER: SYC 2985 of 2012

DATE DELIVERED: 16 August 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 18 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie

SOLICITOR FOR THE APPLICANT: Barkus Doolan

COUNSEL FOR THE RESPONDENT: Mr Sansom SC

SOLICITOR FOR THE RESPONDENT: Abrams Turner Whelan Family Lawyers

Orders

IT IS ORDERED

1. That Order 15 made 30 May 2014 be vacated and in lieu thereof the following order be made:

2. That for the purpose of these orders, school holidays shall commence on the morning of the day immediately following the last day of the school term and shall conclude on the evening of the day immediately before the children attend school in the next term.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Haden & Nestor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2985 of 2012

Mr Haden

Applicant

And

Ms Nestor

Respondent

REASONS FOR JUDGMENT

1. On 30 May 2014, Ms Nestor (“the mother”) and Mr Haden (“the father”) entered into consent orders in relation to property settlement and the parenting of their two children, B born in 2007 and C born in 2009 (“the children”).

2. Relevantly, those orders, in relation to holiday time for the children, provided as follows:

   11.5From the commencement of the Term 1 school holiday period in 2015 for the entirety of the holiday periods that commence at the conclusion of Terms 1, 2 and 3 each year (including any pupil free days) with the exception of the first seven nights of each said school holiday period;

   11.6For the second half of each Christmas school holiday period commencing in 2015 and each alternate year thereafter and for the first half of each said school holiday period in 2016 and each alternate year thereafter and if the calculation of one half would mean the children were to spend half a day with the father, then that half of the school holiday period shall conclude at 4pm on that half day;

   15.For the purpose of these orders, school holidays shall be the holiday dates published by the New South Wales Department of Education and Training for the relevant period in each year and shall include any pupil free days.

3. In January 2015, it became apparent that the parents disagreed about the proper interpretation of the orders, particularly about whether or not the holidays commenced when school finished on the last day of term (as the father contended) or on the Monday following the last day of term (as the mother contended).

4. That disagreement continued until consent orders were made on 27 July 2015. Those consent orders provided that, pending further order, the school holidays would commence at the conclusion of school on the last day the children were to attend school, or at 5.00 pm if the children were not in attendance at school that day, and conclude when the children returned to school at the end of the holidays.

5. The issue before the Court is the proper construction of the orders which were made on 30 May 2014.

6. Put shortly, the applicant father contends that the holidays should commence at the conclusion of school on the last day the children are to attend school, or at 5.00 pm if the children do not attend school on that day, and conclude at 9.00 am on the first day the children are to attend school in each school term.

7. The mother, in response to the father’s application, seeks orders that the application be dismissed. In the event that the application is not to be dismissed, then the mother contends that the Court should make an order that the school holidays commence on the Monday following the last day of school and conclude on the Friday immediately before the next school day.

8. The mother contends that the orders are certain and clear on their face, and relies upon documents published by the New South Wales government. The documents upon which the mother relies are annexed to her affidavit at Annexures D and E and purport to be the “school calendar” which specifies the dates of holidays between April 2014 and February 2016. Nothing on the document relied upon by the mother identifies this document as having been published by the “New South Wales Department of Education and Training”.

9. The father relied upon similar documents.

10. After the completion of submissions, a question arose whether there was such an entity as the “New South Wales Department of Education and Training”.

11. Counsel were asked to address further written submissions to that issue and, if there were no such entity, the consequences which flowed for interpretation or variation of the orders.

12. Those submissions have been received.

13. Counsel agree that the entity known as the Department of Education and Training ceased to exist in 2011. In May 2014, when the orders were made, the relevant entity was the Department of Education and Communities. That entity has also had a name change and is now the Department of Education.

14. Senior counsel for the mother submits that, because of the legislative provisions giving effect to the name change, any document in which the name of the Department of Education and Training is used is to be construed as a reference to the Department of Education and Communities, and, similarly, any document in which the name of the Department of Education and Communities is used, is to be construed as a reference to the Department of Education.

15. Put simply, counsel for the mother submits that there is no ambiguity in the orders, that they are final orders, that they have a plain meaning and settled authority requires that they not be varied.

16. Counsel for the father submitted that the orders wreak an unexpected mischief. If the first and the last weekend of the school holidays is excluded from the definition of “school holidays”, a situation arises where the first weekend after the last day of term is governed by the school term weekend arrangements, the middle period from Monday on the first week of the holidays until Friday in the last week is governed by the holiday arrangements, the last weekend before the new term is governed by the school term time arrangements, and the pupil free day before the first day of school is governed by the holiday arrangements.

17. That could have the absurd consequence that, in the short holidays, the children spend the first Saturday and Sunday after the end of term with the father (if this was “his” weekend according to the school term time orders), then the next seven days with the mother, and the following (approximately) six days with the father. It is not then clear where they would spend the last weekend before school resumes but the pupil free day is presumably spent with the father.

18. If the first weekend after the end of term is a weekend that the children would spend with the mother according to the school term time orders, then the children would have the Saturday and Sunday with the mother; the next seven days with the mother; the period until the following Friday, of perhaps five days, with the father; the following weekend with one of the parents (but it is not clear which one); and the pupil free day, presumably, with the father. This at least has the advantage of only four changeovers.

19. In a worst case scenario, this could involve the children in five changeovers in the space of the short school holiday.

20. On the mother’s proposal, it is difficult to see how the father can have a reasonable amount of time with the children, such that they could travel even a short distance, in any of the school holidays.

21. Since the consent orders entered into on 27 July 2015, the parents have agreed to split the days between the last day of term and the first day of the next term into two periods, the mother having the first half and the father the second.

22. The mother in her affidavit sworn 28 April 2016 deposes to difficulties which she says have occurred since those consent orders were made. She deposes to the father refusing her request to take the children out of school so she could extend her holiday with them; the parties’ failure to agree in relation to certain religious classes; a dispute about ukulele lessons; a dispute about trombone lessons; the father’s demand that the mother not arrange activities for the children during the time they spend with him; and the father’s refusal to extend the mother’s time with the children in the Easter 2016 holidays.

23. Rather than demonstrating that any difficulties had arisen because of the reinterpretation of the definition of the school holiday periods, what the mother has amply demonstrated is that, for these parents, areas of potential disagreement should be minimised.      

24. Common sense also dictates that, for these children, as for any children of their age, the number of changeovers required in any given period should be minimised.

25. The best interests of the children dictate that the children should spend one period with their mother and one period with their father in the school holidays.

26. This requires a reinterpretation of the definition of the school holiday periods.

27. The orders will be amended accordingly.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 16 August 2016.

Associate: 

Date:  16 August 2016