FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rocca & Rocca [2024] FedCFamC2F 1118
File number(s): PAC 6377 of 2020 Judgment of: JUDGE MYERS Date of judgment: 16 August 2024 Catchwords: FAMILY LAW – property proceedings – long marriage – value of property – conflicting expert evidence – assessment of wife’s “wastage” argument – arguments regarding wastage related to transactions during the relationship – assessment of wife’s ‘Kennon claim’ – where Court dismisses the wife’s “wastage” argument – where Court dismisses the wife’s ‘Kennon claim’ - where Court finds it just and equitable for Wife to receive 60% of the property pool and Husband 40% . Legislation: Child Support (Assessment) Act 1989 (Cth)
Evidence Act 1995 (Cth) ss 76, 79
Family Law Act 1975 (Cth) ss 4B, 75(2), 79, 81
Gaming Machines Act 2001 (NSW)
Cases cited: Kennon & Kennon [1997] FamCA 905
Kessey & Kessey (1994) FLC 92–495
Kowaliw & Kowaliw (1981) FLC 91-092
Division: Division 2 Family Law Number of paragraphs: 149 Date of last submission/s: 15 December 2023 Date of hearing: 12, 21, 22 September 2023 & 5, 7 & 15 December 2023 Counsel for the Applicant: Mr Givney Solicitor for the Applicant: Mark Brown & Associates Respondent: Self-Represented Litigant ORDERS
PAC 6377 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ROCCA
Applicant
AND: MS ROCCA
Respondent
ORDER MADE BY:
JUDGE MYERS
DATE OF ORDER:
16 AUGUST 2024
THE COURT ORDERS THAT:
1.The Husband shall within 60 days of the date of these Orders:-
(a)Cause to discharge or refinance the following liabilities so as to remove the Wife as borrower or guarantor:
(i)NAB Home Loan […71];
(ii)NAB C Business Cheque Account overdraft […33];
(iii)NAB Visa Card […55];
(iv)CBA Credit Card […69];
(b)Pay to the Wife the sum of $392,758.62.
(c)Reimburse the Wife for all monies she has paid for insurance over B Street, Suburb D since the making of orders by the Court on 15 December 2023.
(d)For the purposes of clarification of these orders, where the credit cards referred to at order 1(a)(iii) & (iv) above are not in the Wife’s name or guaranteed by the Wife then the Husband shall not be required to discharge or refinance the said credit cards.
2.Immediately and contemporaneously with the compliance by the Husband with Order 1 above, the Wife shall transfer to the Husband her right title and interest in the property situate at and known as B Street, Suburb D (‘the property’), and the Husband shall be solely responsible for all council rates and council water rates and utilities such as power and gas in respect of the property.
3.The Husband and Wife be declared to be liable for one half each of the monies owed to the Australian Taxation Office currently in the sum of $71,177.83 such that they will each be liable to the Australian Taxation Office for $35,588.92.
4.That for the purposes of giving effect to Order 3 above, the parties…
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CaseChat Overview and Summary
The court addressed several legal issues, including the admissibility and weight of expert evidence, the validity of Ms Rocca's arguments regarding the wastage of assets, and her 'Kennon claim'. The court concluded that Ms Rocca's wastage argument was not substantiated by the evidence and thus dismissed it. Similarly, the court found that the 'Kennon claim' did not warrant any additional compensation. After carefully considering the evidence and arguments, the court determined that a 60% share of the property pool should be awarded to Ms Rocca, while Mr Rocca would receive 40%.
In its judgment, the court issued detailed orders to facilitate the division of assets and liabilities. These included directives for Mr Rocca to discharge or refinance certain financial liabilities and to pay a specified amount to Ms Rocca. The court also mandated the transfer of property ownership, the division of joint bank accounts, and the payment of taxes owed to the Australian Taxation Office. In the event of non-compliance by Mr Rocca, the court ordered the sale of the property and specified the procedure for the sale. The court further clarified the ownership of personal property and provided for the calculation and payment of sums due upon the sale of the property. The final orders ensured a clear and equitable distribution of the assets and liabilities, addressing the financial implications of the divorce comprehensively.
Orders
Orders of the court
PAC 6377 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR ROCCA
Applicant
AND:
MS ROCCA
Respondent
ORDER MADE BY:
JUDGE MYERS
DATE OF ORDER:
16 AUGUST 2024
THE COURT ORDERS THAT:
1. The Husband shall within 60 days of the date of these Orders:-
(a) Cause to discharge or refinance the following liabilities so as to remove the Wife as borrower or guarantor:
(i) NAB Home Loan […71];
(ii) NAB C Business Cheque Account overdraft […33];
(iii) NAB Visa Card […55];
(iv) CBA Credit Card […69];
(b) Pay to the Wife the sum of $392,758.62.
(c) Reimburse the Wife for all monies she has paid for insurance over B Street, Suburb D since the making of orders by the Court on 15 December 2023.
(d) For the purposes of clarification of these orders, where the credit cards referred to at order 1(a)(iii) & (iv) above are not in the Wife’s name or guaranteed by the Wife then the Husband shall not be required to discharge or refinance the said credit cards.
2. Immediately and contemporaneously with the compliance by the Husband with Order 1 above, the Wife shall transfer to the Husband her right title and interest in the property situate at and known as B Street, Suburb D (‘the property’), and the Husband shall be solely responsible for all council rates and council water rates and utilities such as power and gas in respect of the property.
3. The Husband and Wife be declared to be liable for one half each of the monies owed to the Australian Taxation Office currently in the sum of $71,177.83 such that they will each be liable to the Australian Taxation Office for $35,588.92.
4. That for the purposes of giving effect to Order 3 above, the parties shall forthwith upon the request of the Australian Taxation Office, enter into any deed or other agreement with the Australian Taxation Office to give effect to the declaration set out at Order 3 above within such timeframe as requested by the Australian Taxation Office.
5. That the parties shall within 7 days of the making of these Orders cause a copy of these Orders to be provided to the Australian Taxation Office.
6. Within 21 days of the date of these Orders, the parties shall do all acts and things and sign all documents necessary so as to close the parties’ joint NAB account […67] and divide the proceeds of the account 60% to the Wife and 40% to the Husband.
7. In the event the Husband fails or neglects to comply with Order 1, then the parties shall do all acts and things necessary to sell the property and in respect of such sale the following shall apply:
(a) The parties shall instruct a solicitor nominated by the Wife to prepare a contract for sale of the property and thereafter act on the conveyance of the sale of the property. The parties shall be equally liable for the costs of the conveyance.
(b) The parties shall do all acts and things and sign all documents to instruct and engage a licenced real estate agent as nominated by the Wife to sell the property by way of a public auction within 28 days of the Husband’s default of Order 1.
(c) In the event the parties cannot agree as to the reserve price at auction, then the parties or either of them shall appoint the President for the time being of the Real Estate Institute (New South Wales Division) or his or her nominee to assess the reserve price at auction and the parties shall be bound by such assessment and equally bear the cost of having engaged the said President.
8. Where the property fails to sell at the auction contemplated at Order 7 above then the property shall be auctioned every forth Saturday thereafter until such time as the property is sold. The Reserve price shall be 3% less than the reserve price set at the previous auction.
9. Upon sale of the property, the proceeds of sale shall be paid as follows:
(a) In payment of agent’s commission and legal fees/ conveyancing costs occasioned by the sale.
(b) Pay all council rates and water rates adjustments.
(c) In discharge of the NAB Home Loan […71] and NAB C Business Cheque Account overdraft […33].
(d) In payment to the Wife the sum of $392,758.62.
(e) Subject to order 10 below, make payment to the Husband the sum of $202,441.39.
(f) Pay the then remaining balance if any 60% to the Wife and 40% to the Husband.
10. The solicitor acting on the conveyance of the property shall undertake a calculation and make an adjustment of monies the Husband will receive pursuant to these Orders whereby the Husband shall be responsible for and pay from his share of the monies from the sale of the property, all arrears and charges in respect of the NAB mortgage, all adjustments in respect of council rates and council water rates, reimburse to the Wife monies she had paid for insurances over the property since 15 December 2023 and pay such sums as are necessary to discharge the NAB Visa Card […55] and CBA credit card […69], only in circumstances where the Wife is a borrower or guarantor in respect of the said credit cards or the credit cards are in her name either jointly or solely.
11. That where there are insufficient funds necessary to pay the sums as set out at Order 9 above and where the parties are unable to reach agreement as to calculations that will see the Wife receive 60% and the Husband 40% of the net matrimonial assets, then the parties have liberty to restore the matter on 14 days’ notice for the purposes of the court making ancillary orders to settle the calculation of monies the parties shall receive on the sale of the property.
12. That pending the Husband’s compliance with order 1 above or upon completion of the sale of the property the Husband shall make all payments due to the National Australia Bank with respect to the mortgage over the former matrimonial home and pay the insurances and other outgoings including rates as and when they fall due in respect of the property.
13. That except otherwise as provided for in these orders, the Husband be declared sole and beneficial owner of:-
(a) Motor Vehicle 1;
(b) Motor Vehicle 2;
(c) Motor Vehicle 3;
(d) Motor Vehicle 4;
(e) Motor Vehicle 5;
(f) CBA account […11];
(g) Tools and equipment in his possession and control;
(h) CBA Business Transaction account […30];
(i) CBA Business account […49];
(j) The Husband’s superannuation;
(k) Any other property including but not limited to monies in bank accounts, shares in public or private companies, motor vehicles, furniture furnishings and all other items of personalty that stand in his name or that are in his possession or control at the date of these Orders.
14. That except otherwise as provided for in these orders, the Wife be declared sole and beneficial owner of:
(a) CBA Account […23];
(b) Motor Vehicle 6;
(c) The Wife’s Superannuation;
(d) Any other property including but not limited to monies in bank accounts, shares in public or private companies, motor vehicles, furniture furnishings and all other items of personalty that stand in her name or that are in her possession or control at the date of these Orders.
15. All outstanding Applications are dismissed, and the proceedings are removed from the List of Matters awaiting finalisation.
AND THE COURT NOTES THAT:
A. The Court relies upon the Wife’s evidence that the Australian Taxation Office has agreed to reduce the debt owed by the parties to the Australian Taxation Office such that the debt now stands at $71,177.83.
B. Having heard from the Wife regarding her negotiations with the Australian Taxation Office the Court notes the Australian Taxation Office’s consent to the Court making orders and declarations that the Husband and the Wife shall each be liable for one half of the debt owed to the ATO that currently totals the sum of $71,177.83.
C. The Wife has advised the Court that there are personal items owned by her in the possession or control of the Husband’s parents at their property. The Court has advised the Wife that she should speak to them or the police if they are not returned.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
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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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