Atlan & Timsit
[2021] FedCFamC2F 718
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Atlan & Timsit [2021] FedCFamC2F 718
File number(s): PAC 6100 of 2017 Judgment of: JUDGE MYERS Date of judgment: 16 November 2021 Catchwords: FAMILY LAW – Final Property Orders Legislation: Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth), ss 75(2), 79(2), 79(4)(b).
Cases cited: Robb & Robb [1994] FamCA 136.
Stanford v Stanford [2012] HCA 52
Division: Division 2 Family Law Number of paragraphs: 42 Date of hearing: 16-17 June 2021 Solicitor for the Applicant: Ariana Defence Lawyers ORDERS
PAC 6100 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ATLAN
Applicant
AND: MR TIMSIT
Respondent
order made by:
JUDGE MYERS
DATE OF ORDER:
16 NOVEMBER 2021
THE COURT ORDERS THAT:
1.Within 10 weeks of today’s orders, the Respondent Husband pay to the wife, as she authorises or directs, the sum of $120,750.
2.Simultaneously with the payment by the Respondent Husband to the applicant wife, the applicant wife shall do all acts and things and sign all documents necessary to discharge and withdraw the caveat over the respondent husband’s home situated at and known as B Street, Suburb C, New South Wales.
3.Should the Respondent Husband fail to make payment to the applicant wife in the said sum of $120,750 within 10 weeks of today’s Orders, then the following provisions will apply:
(a)The Husband shall place the property situated at B Street, Suburb C NSW on the market for sale by private treaty at a sum as agreed between the parties, and failing agreement, at a price suggested by a registered valuer nominated by the President of the Australian Property Institute.
(b)The real estate agent to act upon the sale shall be selected by the Respondent Husband.
(c)Should the said property fail to be sold within 8 weeks from the date at which the said property is first listed for private sale, the property shall be publicly auctioned on the first Saturday 12 weeks after the said property was first offered for sale by private treaty.
(d)Where the said property fails to sell at the auction contemplated at Order 3(c) above, the said property shall be auctioned every fourth Saturday until such time as the property is sold.
(e)That the reserve price for the first auction shall be 5% less than the last price the said property was offered for sale by private treaty, and the reserve price for every subsequent auction shall be 2% less than the preceding auction reserve price.
(f)Simultaneous with settlement of the sale of the said property, the Applicant Wife shall provide a discharge of caveat.
(g)The proceeds of sale be paid in the following order of priority:
(i)Pay out the existing mortgage over the said property;
(ii)Pay the agent’s commission, advertising expenses and auctioneer’s fees;
(iii)Pay all rates and tax adjustments on the sale;
(iv)Pay the solicitors/conveyancers reasonable costs and disbursements for acting on the sale;
(v)Pay the sum of $120,750 to the Applicant Wife;
(vi)Pay the end remaining balance to the Respondent Husband.
4.That otherwise as provided for in these Orders, each party be declared the sole beneficial owner, to the exclusion of the other, of any monies and property that stand in that parties name, or that are in that parties possession at the date of today’s Orders including, but not limited to, furniture, furnishings, money in bank accounts, motor vehicles, real property, shares in public or private companies, superannuation and the like.
5.That the Applicant Wife shall be entitled to lodge a caveat over the property situated at B Street, Suburb C NSW for the purposes of securing the payment made pursuant to today’s Orders.
6.The Court declares that these Orders operate as to finally determine the financial relationship between the parties in accordance with s 81 of the Family Law Act 1975 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
ORAL REASONS FOR JUDGMENT
MYERS J:
This is an oral property decision in respect of the matter of Atlan & Timsit. The Applicant is the wife, Ms Atlan, and the Respondent is the husband, Mr Timsit.
The wife articulates her property claim at page three of her Outline of Case document filed on 15 June 2021 that provides she seeks 30 to 40 per cent of the matrimonial assets, consisting of a home located at B Street, Suburb C worth $700,000, minus a mortgage of $150,000.
The wife suggests an amount of $140,000 should be added back to the pool of assets, where it is the wife’s case the husband withdrew the sum of $140,000 on 23 May 2018 that saw the mortgage on the said property increase from $10,000 to $150,000.
The husband seeks orders that are set out in his Outline of Case document filed on 10 June 2021 as follows:
(a)That the Respondent be declared the sole and absolute owner and sole beneficiary of all legal and equitable rights in the property known as B Street, Suburb C, New South Wales.
(b)That the caveat registered on the abovementioned property be removed.
(c)That the Applicant pay the Respondent an amount exceeding $40,000.00 representing the Respondent’s expenses in bringing the Applicant into Australia, this includes, but is not limited to, ticket fares, visa costs and medical expenses.
(d)That each party retain the property in their possession and control on the basis that an order for adjustment of property is not just and equitable in all circumstances of the present case.
(e)That each party be solely liable and responsible for and shall indemnify the other party regarding any and all past, present and future debts and liabilities in the name of each of them respectively or which may be incurred by each of them, including, but not limited to, credit cards, loans, debts and liabilities of any kind and nature. Each party shall do all acts and things and sign any documents as may be necessary to put this order into effect.
The husband changed his position, essentially on the eve of the property hearing, and suggested the wife receive 10 per cent of the net equity in the former matrimonial home, effectively representing a payment by the husband to the wife in the sum of $55,000.
The matter had originally been listed for a property and parenting Final Hearing. The parties, with the assistance of the Independent Children’s Lawyer, Mr E, agreed to a final parenting settlement that was made by Consent on 16 June 2021, that essentially provided that the wife and the husband’s two children, X born 2012 and Y born 2016, live with the wife and spend time with the husband each alternate weekend from after school or 3:00pm on a Friday and to the commencement of school or 9:00am on a Monday, as well as half of each school holiday period, and at other times such as Mother’s Day with the wife, Father’s Day with the husband, time on the children’s birthdays and the parties’ birthdays and the like.
The parties agreed to a final order where the wife holds sole parental responsibility, but in circumstances where she must communicate with and advise the father of arrangements relating to the children.
By way of background, the husband was born in 1956 and the wife was born in 1982. In 1990, the husband arrived in Australia. In 1997, the husband was granted Australian citizenship.
In 1998, the husband purchased the property at B Street Suburb C, NSW. In 2009, the husband arranged to send the wife to Country F to apply for a spousal visa. Between 2009 and 2011, the wife subsequently lived in Country F for two years, during which time the husband provided the wife with financial means to live in Country F.
The wife suggests that the parties married overseas in what the wife describes as a cultural and religious ceremony in Country H and then remarried in Australia in 2011.
In mid-2011, the wife arrived in Australia, with the Respondent paying what he described as the entire fees connected with the travel, including airfares and medical consultations. On 10 December 2011, the parties began cohabiting in Australia that in reality commenced with the marriage of the parties. In 2012, the parties’ first child X was born.
In mid-2013, the wife commenced employment. In early 2014, the parties purchased Motor Vehicle 1 and the applicant sold the vehicle following separation. 13 December 2014 was the date of separation. In 2016, the parties’ second child Y was born.
The parties divorced on 26 November 2017. On 5 December 2017, the wife commenced these proceedings, and on 7 June 2018 the husband filed his Response to that Application.
It is agreed that, for the purposes of these property proceedings, the assets and liabilities consist of the home at B Street, Suburb C worth $700,000 which is encumbered by a mortgage of some $150,000. It is also not disputed that the husband withdrew the sum of $140,000 from the mortgage against the B Street, Suburb C property on 23 May 2018, well after the commencement of these proceedings.
That withdrawal and expenditure of monies by the husband, in the view of the Court, was not adequately explained, and as such the Court accepts the wife’s argument that $140,000 should be notionally added back to the matrimonial property pool as having been received by the husband.
In Stanford v Stanford [2012] HCA 52, the High Court observed that in most cases a just and equitable requirement is readily satisfied by observing that, as the result of choices made by one or both of the parties, the husband and wife are no longer living in a marital relationship and it will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of the property by the husband and wife. No less importantly, the express or implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship.
The Court, firstly, finds that it is just and equitable to make an adjustment of property as between the wife and husband, noting that the former matrimonial home is in the sole name of the husband and that the making of no order for adjustment would see the husband retain all of the assets and the wife walk away with nothing.
The Court turns to the parties’ financial contributions made by them to the acquisition, conservation or improvement of the property of the parties. It is not controversial that the husband acquired the Suburb C property in 1998 and at some time before 2011, the property was transferred to the husband’s sole name.
The husband suggested he worked prior to the parties’ marriage as a transport worker. The Court accepts that about the time of the conclusion of the parties’ relationship, the mortgage on the Suburb C property was in the order of only about $10,000.
The husband appears to give uncontested evidence of expending up to $40,000 obtaining a visa for the wife to enter into Australia, some several thousand dollars on airfares and apparently some $2,000 on a medical procedure for the wife.
The husband was largely unemployed during the period of the parties’ marriage and even on the husband’s evidence, the wife earned significant monies towards the end of the parties’ relationship, working as a healthcare professional earning some $2000 per fortnight. The wife suggests she contributed those moneys to the household and the husband suggests the wife did not contribute in any way to the household expenses and instead sent all of the money overseas to her younger brother in Country H to buy a business.
The Court, having heard the evidence during cross‑examination of the husband and having read the affidavit material, finds that the husband’s evidence as to the wife not contributing to the household expenses was insufficient to allow the Court to make a finding in the terms suggested by the husband. Rather, the evidence left the Court in little doubt as to the wife reasonably contributing to expenses of the household during the parties’ cohabitation.
The Court notes there was no evidence that would allow the Court to make findings as to either party contributing of the type referred to in section 79(4)(b).
The question of contributions by the parties to the welfare of the family and children of the marriage and the contributions made by the parties in the capacity of homemaker and parent was strongly contested by the parties.
Having heard the evidence, the Court accepts that both parties contributed in their role as homemaker and parent. The Court does not accept that through the marriage most of the household chores were undertaken by the husband and his other children. The Court accepts that the wife contributed, and equally so in respect of X and, at the time, the husband’s children. In this regard, the Court notes those contributions fall within the type referred to in the decision in Robb & Robb.
Based on contributions, the Court allows an adjustment in the father’s favour of 25 per cent. The Court considers there will be no effect of any property proceedings brought by either party on either party’s earning capacity.
The Court considers those matters set out at section 75(2). The husband is significantly older than the wife, with the husband being born in 1956 and the wife in 1982. The difference in age is some 26 years. The husband gave evidence of suffering various health issues that was unchallenged during cross‑examination. The wife’s health is, on the evidence, best described as good.
The length of time of each party’s realistic working life is disparate. The husband has a history of working as a transport worker for some 20 years and is unemployed. The wife works as a healthcare professional and earns an income that sees her having earned approximately $100,000 per year.
While both parties have the mental and physical capacity for appropriate gainful employment, the wife is in a far superior position to that of the husband. The wife has the majority of care for both of the parties’ children. The husband’s child, not of the marriage, who lives with the husband full time, Ms G, is about the age of 18, born 2004 and at the time of the hearing resided with the husband.
The husband and wife have both received Centrelink benefits. The orders sought by either party will allow for the parties a standard of living and in all the circumstances is reasonable. The duration of the marriage has not affected either party’s earning capacity.
The orders sought by the husband, if granted, will not affect the wife’s ability to continue in her role as a parent to the parties’ children. Neither party is in any relationship or cohabiting with another person.
It is highly unlikely, given the father’s evidence, that he will in the future contribute any sum of money to the mother by way of child support that would go even close to the costs of providing for the children.
There is no financial agreement that is binding on the parties. There is no part VIIIAB financial agreement that is binding on the parties.
Given the above, the Court will make an adjustment pursuant to section 75(2) in favour of the husband of 7.5 per cent.
The effect of making an adjustment based on contributions and 75(2) factors sees an adjustment of property between the parties of 82.5 per cent to the husband and 17.5 per cent to the wife in a pool of $690,000.
The Court has considered the parenting orders made in the proceedings by the Court under the Act and any child support under the Child Support (Assessment) Act that the father has provided or is to provide or might be liable to provide that is best described as minimal, if not ultimately likely non‑existent.
The Court stands back and considers section 79(2) that provides a court shall not make an order unless it is satisfied that, in all the circumstances, it is just and equitable to make an order. The Court finds that, when standing back and looking at all of the circumstances, an order providing for an adjustment between the parties of 82.5 per cent to the husband and 17.5 per cent to the wife in a pool of $690,000, that requires the husband to pay to the wife the sum of $120,750, is just and equitable.
The Court finds that it is just and equitable to allow the husband sufficient time in which to refinance the home or borrow funds sufficient to make payment to the wife. It is the view of the Court that such a period is some 10 weeks from the date of today’s orders.
Given the husband borrowed funds as against the former matrimonial home at Suburb C during the course of these proceedings without notice to the wife or the Court, the Court proposes to protect the wife’s interest by allowing her to lodge and maintain a caveat over the Suburb C property until such time as the payment is made by the husband to the wife.
Furthermore, the Court notes that the wife has already lodged a caveat over the Suburb C property. The Court is of the view that giving the wife the right will have the effect of preventing or negating the effect of the husband lodging a lapsing notice in relation to that caveat.
The Court notes the husband’s submissions to the effect that he would find it difficult to obtain a loan to make any payment to the wife. For this reason, it is necessary to make default orders that would require the sale of the former matrimonial home if payment were not made.
For the reasons set out above the Court makes the following orders:
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Myers. Associate:
Dated: 16 November 2021
0