Atlan & Timsit [2021] FedCFamC2F 718

Atlan & Timsit [2021] FedCFamC2F 718

Relationship Details

• Type: Marriage
• Duration: Married in Australia in 2011, separated on 13 December 2014; approximately 3 years.
• Ages at Judgment: Husband 65, Wife 39.

Children

• Children from Relationship: Two children, born in 2012 and 2016 (about 9 and 5 at judgment). By consent orders they live with the wife, who has sole parental responsibility.
• Children from Previous Relationships: Husband has an older child, born in 2004, living with him.

Initial Financial Positions

• Husband:

  • Owned property at B Street, Suburb C, NSW since 1998, with a small mortgage.
  • Paid up to $40,000 for the wife's visa, plus her airfares and some medical costs.

• Wife:

  • No specific mention of initial assets or debts when the relationship began.

Contributions During the Relationship

• Financial Contributions:

  • Husband owned the home at B Street before cohabitation; the mortgage was about $10,000 at separation. He was largely unemployed during the marriage.
  • Wife worked as a healthcare professional from mid-2013, earning around $2,000 per fortnight. The court rejected the husband's claim that she sent it all overseas and found she reasonably contributed to household expenses.

• Non-financial Contributions:

  • Both parties contributed as homemakers and parents.
  • The court found the wife contributed at least equally to the care of the children.

Post-Separation Contributions and Actions

• Financial Contributions:

  • On 23 May 2018, after the proceedings began, the husband drew $140,000 against the home, raising the mortgage from $10,000 to $150,000. He did not adequately explain the spending.

• Non-financial Contributions:

  • Wife remained the primary caregiver for both children, now living with her.

• Dissipation of Assets:

  • The court notionally added the $140,000 back to the pool as money the husband had received.

Current Financial Position & Property Pool

• Property Pool:
  • Home at B Street valued at $700,000 with a current mortgage of $150,000 (equity $550,000).
  • Total property pool, with the $140,000 add-back, valued at $690,000.

Assessment of Contributions and Future Needs

• Contributions:

  • Court adjusted contributions in the husband's favour by 25% due to pre-existing ownership of the house and initial financial contributions.

• Future Needs Adjustments:

  • An additional 7.5% adjustment in the husband's favour under s 75(2): he is 26 years older, has health issues and is unemployed, while the wife is in good health and earns about $100,000 a year. The court also noted the wife has most of the care of the children and the husband is unlikely to pay meaningful child support.

• Final Division: 82.5% of the asset pool to the husband and 17.5% to the wife, resulting in a payment of $120,750 to the wife.

Unique Aspects

• The significant age difference of 26 years was a relevant factor.
• The husband's unexplained post-separation withdrawal was added back to the pool rather than ignored.
• The court noted that the husband's child support was minimal and likely to remain so.
• Orders included protection for the wife’s interest via a caveat over the property until payment was made.
• Payment arrangements considered husband’s difficulty in obtaining additional loans, necessitating sale provisions if required.

Main Takeaways

• The division favoured the husband because he brought the home into a short marriage and because of his age, health and lack of earning capacity compared with the wife. His unexplained withdrawal was added back to the pool. The court secured the wife's payment with a caveat and orders for sale if he did not pay within 10 weeks.

The law since this decision

This case was decided before 10 June 2025. From that date the Family Law Act 1975 (Cth) sets out the steps for a property settlement in s 79(3) to (5), and the court must consider the effect of family violence on each party's contributions (s 79(4)(ca)) and on their current and future circumstances (s 79(5)(a)), and any material wastage of property (s 79(5)(d)). In Western Australia, a property case between married couples is decided under that Act in the Family Court of Western Australia. A case between de facto partners in Western Australia is decided under the Family Court Act 1997 (WA), which has not adopted those 2025 changes.