FAMILY COURT OF AUSTRALIA
HARLEM & HARLEM [2008] FamCA 375 FAMILY LAW – CHILDREN – Parenting orders
FAMILY LAW – PROPERTY SETTLEMENT
APPLICANT: Mrs Harlem
RESPONDENT: Mr Harlem
FILE NUMBER: BRF 3862 of 2005
DATE DELIVERED: 23 May 2008
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Bell J
HEARING DATE: 15-19 November 2007 REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr Kirk SC
SOLICITOR FOR THE APPLICANT: Hopgood Ganim Lawyers
COUNSEL FOR THE RESPONDENT: Mr Favell
SOLICITOR FOR THE RESPONDENT: Hirst & Co
ORDERS:
PARENTING ORDERS
The Mother and Father have equal shared parental responsibility for the children E born … February 1995 and W born … June 1997 (after this referred to as “the children” or individually by name).
That the children live with the Father and Mother at all such times as agreed between the parties and failing agreement then during school term as follows:
2.1 with the Father each alternate weekend from 4.00pm on Friday until 4.00pm on Sunday;
2.2 For E, each Tuesday evening from 4.00pm until 7.00am the following day; and
2.3 For W, each Wednesday evening from 4.00pm until 7.00am the following day;
2.4 That save as otherwise provided in these orders the children live with the Mother.
School Holidays
That the children spend time with each party during school holidays as agreed between the parties and failing agreement as follows:
3.1.The Father spend time with the children in the first half of all school holiday periods in 2008 and in each alternative year thereafter (“even years”) commencing at 4.00pm on the last day of school term.
3.2.The Mother spend time with the children in the second half of all school holiday periods in 2008 and in each alternative year thereafter (“even years”) commencing at 4.00pm on the day that is the first day of the second half of the school holiday period.
3.3.The Father spend time with the children in the second half of all school holiday periods in 2009 and in each alternative year thereafter (“odd years”) commencing at 4.00pm on the day that is the first day of the second half of the school holiday period.
3.4.The Mother spend time with the children in the first half of all school holiday periods in 2009 and in each alternative year thereafter (“odd years”) commencing after school on the last day of school term.
Order 2 herein shall be suspended during all school holiday periods and the Easter holiday period and:
4.1.If the children spend time with the Father for the first half of any school holiday period, then his time with the children should recommence on the first weekend of school term; and
4.2.If the children spend time with the Father for the second half of any school holiday period then his time with the children should recommence on the second weekend of the school term.
Special Occasions
On Christmas Day, the children are to spend time with the parent that they are not living with between 9.00 am and 2.00 pm…
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- AGLC
- Harlem and Harlem [2008] FamCA 375
- Case
- [2008] FamCA 375
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific terms of parenting orders that would govern the children's lives, including the allocation of parental responsibility, the schedule for children living with each parent, and arrangements for holidays and significant dates. Furthermore, the court had to make orders regarding the division of property and the dismissal of applications for spousal and child maintenance. Specific issues concerning the communication and conduct of the parties in relation to the children, such as preventing denigration and discussing court proceedings, were also to be addressed.
Bell J made detailed parenting orders, establishing equal shared parental responsibility and outlining specific living arrangements for the children with each parent, including alternate weekends and mid-week time for E and W respectively. The orders also detailed a rotating schedule for school holidays, special occasions like Christmas and birthdays, and provisions for collection and delivery. The court also made orders regarding communication, including the exchange of contact details, medical information, school reports, and attendance at events. Injunctions were granted restraining the parties from denigrating each other in the presence of the children and from discussing court proceedings with them.
In relation to property settlement, the court ordered the Husband to transfer certain properties and a vehicle to the Wife, and to pay a sum of money to her. The Wife was ordered to transfer her interests in various trusts and companies to the Husband and to resign from positions within those entities. The Husband was to retain his superannuation entitlement and other specified assets. The Wife's applications for spousal and child maintenance were dismissed. The court also ordered that previous orders be discharged 30 days after the Husband made a specified cash payment and executed a property transfer in favour of the Wife.
Orders
Orders of the court
PARENTING ORDERS
1.
The Mother and Father have equal shared parental responsibility for the children E born … February 1995 and W born … June 1997 (after this referred to as “the children” or individually by name).
2.
That the children live with the Father and Mother at all such times as agreed between the parties and failing agreement then during school term as follows:
2.1 with the Father each alternate weekend from 4.00pm on Friday until 4.00pm on Sunday;
2.2 For E, each Tuesday evening from 4.00pm until 7.00am the following day; and
2.3 For W, each Wednesday evening from 4.00pm until 7.00am the following day;
2.4 That save as otherwise provided in these orders the children live with the Mother.
School Holidays
3.
That the children spend time with each party during school holidays as agreed between the parties and failing agreement as follows:
3.1. The Father spend time with the children in the first half of all school holiday periods in 2008 and in each alternative year thereafter (“even years”) commencing at 4.00pm on the last day of school term.
3.2. The Mother spend time with the children in the second half of all school holiday periods in 2008 and in each alternative year thereafter (“even years”) commencing at 4.00pm on the day that is the first day of the second half of the school holiday period.
3.3. The Father spend time with the children in the second half of all school holiday periods in 2009 and in each alternative year thereafter (“odd years”) commencing at 4.00pm on the day that is the first day of the second half of the school holiday period.
3.4. The Mother spend time with the children in the first half of all school holiday periods in 2009 and in each alternative year thereafter (“odd years”) commencing after school on the last day of school term.
4.
Order 2 herein shall be suspended during all school holiday periods and the Easter holiday period and:
4.1. If the children spend time with the Father for the first half of any school holiday period, then his time with the children should recommence on the first weekend of school term; and
4.2. If the children spend time with the Father for the second half of any school holiday period then his time with the children should recommence on the second weekend of the school term.
Special Occasions
5.
On Christmas Day, the children are to spend time with the parent that they are not living with between 9.00 am and 2.00 pm on that day.
6.
On Father’s Day, should that day fall during a day when the children would otherwise be living with the Mother, the children spend time with the Father from 9.00 am to 9.00am the following day.
7.
On Mother’s Day, should that day fall on a day when the children would otherwise be living with the Father, the children spend time with the Mother from 9.00 am to 9.00 am the following day.
8.
On the Father’s birthday, should this fall on a day when the children would otherwise be living with the Mother, the children spend time with the Father as follows:
8.1. If the birthday falls on a school day, from 4.00pm to 8.00pm; and
8.2. If the birthday falls on a non-school day, from 9.00am until 9.00am the following day with the Father to collect the children from and return the children to the Mother’s home.
9.
On the Mother’s birthday, should this fall on a day when the children would otherwise be living with the Father, the children spend time with the Mother as follows:
9.1. If the birthday falls on a school day, from 4.00pm to 8.00pm; and
9.2. If the birthday falls on a non-school day, from 9.00am until 9.00am the following day with the Mother to collect the children from and return the children to the Father’s home.
10.
On each of the children’s birthdays, the children are to spend time with the parent they are not living with as follows:
10.1. If the child’s birthday falls on a non school day for four hours on that day as agreed by the parties and failing agreement between 10.00am and 2.00pm; and
10.2. If the child’s birthday falls on a school day for no less than 4 hours as agreed by the parties and failing agreement between 4.00pm and 8.00pm.
Collection and Delivery
11.
The arrangements to transport the children between the Father’s home and Mother’s home be as follows:
11.1. The Father or his agent is to collect the children from the Mother’s home at the commencement of the time the children beginning living with the Father;
11.2. The Father or his agent is to return the children to the Mother’s home or the children’s school (as the case may require) at the conclusion of the time the children recommence living with the Mother.
Specific Issues
12.
That each party keep the other party informed of changes to the respective party’s residential addresses and/or home telephone numbers and/or mobile telephone numbers within 24 hours of any such change.
13.
The parties be restrained and an injunction be granted restraining the parties from denigrating the other party or the other party’s partner or children in the presence or hearing of the children.
14.
The parties use their best endeavours to ensure that no third party denigrates the either of the parties, the parties’ partners or children in the presence of hearing of the children.
15.
The parties be restrained and an injunction be granted restraining the parties from discussing any Court proceedings between them in the presence or hearing of the children.
16.
That each party keep the other party informed of the names and addresses of any and all medical practitioners who are involved in treating or caring for the children.
17.
That each party authorise each of the children’s medical practitioner to discuss with the other party the children’s health and medical treatment.
18.
That the Mother and Father inform the other as soon as it is reasonably practicable of any medical condition, significant health issue and/or illness suffered by any of the children and authorise any treating medical practitioner to give the other parent such information that he or she may reasonably request pertaining to such condition.
19.
That the Mother and Father authorise the children’s schools to provide to the other parent copies of all school reports and any other reports on the children’s progress and behaviour issues and all notices received from the school including newsletters, parent letters and general notices.
20.
That the Mother and Father authorise the children’s schools to inform the other parent of all extra curricular activities that occur at the children’s school including parent/teacher meetings, sporting/special events and any other activities to which the parents are invited.
21.
That the Mother and Father authorise the children’s schools to contact the other parent in respect to school photographs and that provision of such photographs must be arranged by the Father and Mother with the school directly.
22.
In the event the children bring to the respective home of the Mother or Father, any school, sport or other social activity newsletters, parent letters or general notices, the Mother or Father shall provide a copy of the same to the other parent.
23.
That both parties shall be entitled to attend any public or school social, sporting or educational event involving the children, including but not limited to theatre performances, sporting events, school activities and functions, Christmas parties and other special occasions and that both parties:
23.1. inform the other party of such events in a timely manner; and
23.2. communicate to the other if arrangements are made for the children to attend such an event whilst the child is not in that party’s care.
24.
That each party shall facilitate the children being present at special events for their extended family in Australia.
25.
That the Mother and Father notify the other of any proposed holiday location out of Queensland where it is intended that they will take the children and provide a contact telephone number where the children may be contacted during such period.
26.
That pursuant to section 65Y(2) of the Family Law Act 1975 each party shall be permitted to take the children out of the Commonwealth of Australia for holidays upon four (4) weeks written notice to the other party of their intent to do so, and shall provide to the other at least thirty (30) days prior to that departure:
26.1 a general itinerary and telephone numbers at which the children may be contacted during such absences from Australia;
26.2 copies of the pre-paid return tickets for travel; and
26.3 in the event that there is a material change in that itinerary or telephone number, the party shall forthwith notify the party that remains in Australia of such change.
27.
Within fourteen (14) days of a written request from the other party, each party do all such acts and sign all such documents as may be required to apply for a passport or any other documents deemed necessary for the purpose of travel.
28.
That neither party relocate the children’s home from a 50 kilometre radius of the Brisbane General Post Office without the prior written consent in writing of the other party or by Order of the Court.
PROPERTY SETTLEMENT AND MAINTENANCE
29.
That as and by way of property settlement and maintenance, the Husband and Wife receive and/or retain the property and resources as set forth in the following orders.
Property to be Retained by the Wife
30.
That within 7 days of the date of this order the Husband do all things and sign all documents necessary to transfer to the Wife, free of any encumbrance, all of his right, title and interest in the property located at C in the State of Queensland more particularly described as Lots … and … on Registered Plan …, County of …, Parish of … together with the contents of that property provided that the preparation of any necessary documents be undertaken by the Wife and the Wife be solely responsible for the costs of and associated with the said transfer;
31.
That within 7 days of the date of this order the Husband do all things and sign all documents necessary to transfer to the Wife, free of any encumbrance the Toyota Landcruiser motor vehicle, registration number … currently in her possession provided that the preparation of any necessary documents be undertaken by the Wife and the Wife be solely responsible for the costs of and associated with the said transfer;
32.
That except as these orders provide to the contrary as against the Husband, the Wife is the owner and the Husband has no interest in:
32.1. Any monies standing to the credit of the Wife in any bank accounts in her sole name;
32.2. Monies paid to the Wife’s solicitors, Hopgood Ganim Lawyers, in the amount of $250,000.00;
32.3. All furniture, furnishings, jewellery and chattels currently in her possession;
32.4. Her entitlements in the Harlem Superannuation fund (“the Super fund”) provided that the Husband and Wife as trustees of the Super fund shall take such steps as may be necessary to transfer her such interest to a fund nominated by the Wife her entitlements in the Super Fund;
32.5. Her shares in publicly listed companies;
32.6. The Toyota Landcruiser motor vehicle currently in her possession;
32.7. The payment received by her pursuant to paragraph 33 of these orders.
33.
That the Husband pay to the Wife or as directed by her in writing within 7 days of the date of these orders the sum of $279,932.30.
34.
That the Husband be responsible for and pay the interest arising on the advance taken by the Wife from Impact Capital forthwith and by no later than within seven days of the Wife providing to the Husband a letter from Impact Capital specifying the interest payable provided that the Husband be responsible for the payment of interest only from the date of the advance by Impact Capital to the Wife to the date of payment by the Husband of the amount payable by him pursuant to paragraph 33 of these orders (except in the event of default by the Husband in which case he will be responsible for all interest payable and indemnify the Wife in relation to same until he complies with this order).
Property to be Received and/or Retained by the Husband
35.
That the Wife within 45 days of the date of these orders do all things and sign all documents necessary to transfer to the Husband or at his direction all interests held by her in M Pty Ltd, the Harlem Family Discretionary Trust (of which M Pty Ltd is the trustee), the Harlem Property Trust (of which the Husband is trustee), the Harlem Investment Trust (of which Harlem Property Holdings Pty Ltd is trustee) and A Pty Ltd (hereinafter referred to collectively as “the [Harlem] Group”) and resign from all positions held by her therein.
36.
That upon the transfer of the Wife’s superannuation entitlement from the Super Fund in accordance with paragraph 32.4 the Wife shall forthwith resign as a trustee and from all other positions she may have held in the Super Fund.
37.
That except as these orders provide to the contrary as against the Wife, the Husband retain as his property the following:
37.1. The entitlement of the Husband as a member of the Super Fund;
37.2. The shares and other interests held by him in the Harlem Group;
37.3. The money standing to the credit of the Husband in any loan accounts of beneficiary accounts of the entities within the Harlem Group;
37.4. His interest in:
37.4.1.The property situated at N in the State of Queensland being more particularly described as Lot … on Building Unit Plan …, County of …, Parish of … together with the contents of that property;
37.4.2.Units 9, 10 and 16 M Street in the State of Queensland more particularly described as Lots 9, 10 and 16 on Building Unit Plan … County of …, Parish of … and share in common property as shown on Certificate of Title Nos. …, … and …; and
37.4.3.The property situated at L in the State of Queensland more particularly described as Lot … on Building Unit Plan … and share in common property as shown on Certificate of Title No. ….
37.4.4.His interest in the motor vessel and the sailing yacht;
37.4.5.The money standing to the credit of the Husband in any bank accounts in his sole name including but not limited to:
· the US dollar account;
· the E and W account;
· the cheque account.
37.4.6.All furniture, furnishings and chattels situated in the residential dwelling at H; and
37.4.7.The shares held in his name in publicly listed companies.
Indemnities
38.
That the Husband be solely responsible for and indemnify the Wife and keep her indemnified against all liabilities, actions, claims, suits and/or demands of any nature whatsoever:
38.1. Arising directly or indirectly out of or ancillary to or in anyway connected with the Harlem Group or the Super Fund;
38.2. In relation to any debt loan account or debt owing to any of the entities in the Harlem Group whether past, present or future including but not limited to any liability that might be occasioned to her by reason of her holding any office in any of the entities in his Harlem Group or the Super Fund or as guarantor in respect of any guarantee (if any) given on behalf thereof jointly with the Husband or otherwise and the Husband shall take such steps as shall be necessary to have her released;
38.3. Including any liability occasioned to the Wife arising out of any transaction or transfer resulting from these orders or by reason of any distribution to the Wife as a beneficiary to any of the trusts within the Harlem Group, such liability to include stamp duty, income tax, capital gains tax and related charges and/or taxes.
Miscellaneous Orders
39.
That except as these orders provide to the contrary:
39.1. All documents necessary to transfer any property or give effect to any transaction pursuant to the terms of these Orders be prepared by the party receiving such property of the benefit of such transaction;
39.2. That the party receiving such property or the benefit of such a transaction be responsible for the payment of taxation, stamp duty, registration fees, legal costs and outlays in relation to effecting the transfer of any property or the receipt of any benefits in such a transaction pursuant to the terms of these orders;
39.3. That the Husband and Wife mutually release the other in respect of any actions, claims, suits, demands and debts as against the other.
40.
That the parties comply with all requisitions issued by the Office of State Revenue in relation to any document executed or transaction entered into pursuant to, or to put into effect, by these Orders. In default of either of the parties complying with any requisition so issued within 14 days of the date upon which any requisition issues, the party not in default shall be entitled to comply with any of the outstanding requisitions and recover from the other party in default, the costs and outlays incurred in complying with the requisition, such costs to be calculated in accordance with the Family Law Rules.
41.
That in the event that any party to these orders refuses or neglects to comply with any or all of the provisions of these Orders, the Registrar or a Deputy Registrar of the Family Court of Australia at Brisbane is hereby appointed, pursuant to s.106A of the Family Law Act, to execute all deeds and documents in the name of the Husband, the Second Respondent and/or the Wife and to do all acts and things necessary to give validity and operation to these Orders.
42.
That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
42.1. Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession and/or name of such party as at the date of these orders;
42.2. Insurance policies remain the sole property of the owner named in the policy;
42.3. Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
42.4. Any joint tenancy of the parties in any real or personal estate is expressly severed.
Spousal Maintenance
43.
That the application of the Wife for periodic and/or lump sum spousal maintenance be dismissed.
Child Maintenance
44.
That the application of the Wife for Orders for a departure from the administrative assessment of child support be dismissed.
Procedural and Other Orders
45.
That all applications be otherwise dismissed and the proceedings removed from the pending cases list.
46.
That the orders of this Honourable Court dated 16 March 2006 and 2 August 2006 be discharged 30 days after the Husband does both of the following things:
46.1. Makes the cash payment to the Wife pursuant to paragraph 33 of these orders; and
46.2. Executes a transfer in favour of the Wife pursuant to paragraph 30 of these orders.
47.
Certify for Counsel and Senior Counsel.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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