FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Manwaring & Emmerton [2025] FedCFamC1A 20
Appeal from: Emmerton & Manwaring (No 2) [2024] FedCFamC2F 966 Appeal number: NAA 216 of 2024 File number: ADC 4841 of 2017 Judgment of: SCHONELL J Date of judgment: 18 February 2025 Catchwords: FAMILY LAW – APPEAL – Where the grounds of appeal involved a degree of overlap by contending errors in the exercise of discretion and errors of fact – Where the appellant contends that the primary judge “doubled counted” the effect of the conduct of the appellant at both the assessment of contribution stage and in relation to the matters under s 75(2) – Where the respondent contended that there was no double counting, that the primary judge’s determination needed to be viewed in aggregate, and that a consideration of the primary judge’s determination revealed no error in the approach of the primary judge – Where the Full Court found that the conduct finding was material to the determination of the primary judge at each of stages two and three and was “double counted” – Where the error permeated the percentage findings at each stage – Ground 1 of the appeal succeeds.
FAMILY LAW – APPEAL – RE-EXERCISE OF DISCRETION – Where this Court found error in the primary judge’s reasons – Where the parties agreed that the Full Court should re-exercise the discretion – Where orders were made for further written submissions to be filed as to the re-exercise of discretion – 28 year marriage – Where the parties had acquired a number of assets including the business, investment properties, a home and farm – On the re-exercise of discretion, the respondent is to receive 62 percent of the property available for division and the appellant is to receive 38 percent – Costs certificates issued.
Legislation: Family Law Act 1975 (Cth) Pt VIII, ss 75(2), 75(2)(g), 75(2)(o), 75(4)(e), 79(a), 79(b), 79(c), 79(4), 106A
Federal Circuit Family Court of Australia Act 2021 (Cth) s 36(1)
Federal Proceedings (Costs) Act 1981 (Cth) s 6 and s 9
Cases cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Boulton & Boulton [2024] FedCFamC1A 132
CDJ v VAJ 1998] 197 CLR 182; HCA 67
Chan & Lee (2022) FLC 94-089; [2022] FedCFamC1A 85
Crowe-Maxwell v Frost (2016) 91 NSWLR 414; [2016] NSWCA 46
De Winter and De Winter (1979) FLC 90-605
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
Horrigan & Horrigan [2020] FamCAFC 25
House v The King [1936] 55 CLR 499; HCA 40
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Keskin & Keskin & Anor (2019) FLC 93-932; [2019] FamCAFC 236
Loncar & Loncar [2021] FLC 94-054; [2021] FedCFamC1A 14
McDonald v Deputy Federal Commissioner of Land Tax (NSW) [1915] 20 CLR 231
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CaseChat Overview and Summary
The court also addressed the issue of re-exercising discretion due to the error identified in the primary judge’s reasons. Both parties agreed that the Full Court should re-exercise the discretion. After considering further written submissions, the court decided on the re-exercise of discretion, awarding the respondent 62 percent of the property available for division and the appellant 38 percent. The court issued costs certificates in favour of both parties. This re-exercise of discretion aimed to rectify the identified errors and ensure a fair division of assets based on the unique circumstances of the 28-year marriage, including the acquisition of the business, investment properties, a home, and a farm.
Orders
Orders of the court
NAA 216 of 2024
ADC 4841 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR MANWARING
Appellant
AND:
MS EMMERTON
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
18 FEBRUARY 2025
THE COURT ORDERS THAT:
1. The Appeal is allowed.
2. The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in the appeal.
3. The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in the appeal.
4. The orders made 26 July 2024 are set aside and, in lieu thereof, the following orders are made pursuant to Pt VIII of the Family Law Act 1975 (Cth).
5. The proceeds of sale of the property situate at K Street, Town L and C Street, Suburb D and the proceeds from the sale of livestock all held in the Trust Account of Tindall Gask Bentley be distributed to the respondent.
6. Within twenty-one (21) days of the date of this order the appellant is to vacate the property situate at AB Street, Suburb AC in the State of South Australia described in Certificate of Title Volume … Folio … (“the [Suburb AC] property”) and deliver up the keys and any other means of entry to the Suburb AC property to the respondent or such other person nominated to him or his solicitor by her or by her solicitor.
7. Within sixty (60) days of the date of this order the parties shall do all things and execute all documents necessary to place the Suburb AC property on the market for sale on the following terms and conditions:
(a) The respondent be appointed sole agent to sell the property;
(b) The respondent provide all instructions to the said sales agent and conveyancer to give effect to these orders including but not limited to:
(i) The method of sale;
(ii) Advertising and marketing of the property;
(iii) The execution of the contract of sale;
(iv) Release of the settlement statement;
(v) Ascertain the status of rates and payments and any information as to any utility accounts outstanding in respect of the Suburb AC property; and
(vi) The payment of the proceeds of sale in accordance with these orders;
(c) The nominated reserved price be not less than $650,000.00 (SIX HUNDRED AND FIFTY THOUSAND DOLLARS) unless the appointed sales agent recommends another figure or the parties agree on a different figure;
(d) Upon the sale of the Suburb AC property the net proceeds be distributed in the following manner and priority:
(i) Pay all costs (including commission) and expenses of sale and conveyancing to the relevant persons;
(ii) Reimburse the respondent for any reasonably incurred costs to clean the Suburb AC property preparing it for sale;
(iii) Pay arrears of all rates, taxes and outgoings with respect to the Suburb AC property of whatsoever nature and kind;
(iv) To the respondent by payment to the Trust Account of Tindall Gask Bentley, such sum as calculated by Mr R that shall be sufficient to meet the anticipated capital gains tax associated with the sales of the Suburb D, Town L and Suburb AC properties, to be drawn upon to pay any assessment of capital gains tax issued by the Australian Tax Office;
(v) To the parties’ son Mr X TWENTY ONE THOUSAND, FIVE HUNDRED AND SEVENTY SEVEN DOLLARS AND SIXTY SIX CENTS ($21,577.66) to discharge the joint liability in respect of the AA Bank; and
(vi) The proceeds remaining in the Trust Account of Tindall Gask Bentley to be distributed as follows:
A. 62 percent to the respondent;
B. A further and additional sum of $42,413 to the respondent; and
C. The remaining proceeds to the Starke Lawyers Trust Account for the appellant.
8. Within sixty (60) days of the date of this order, the parties do all things and execute all necessary documents required of them to transfer the respondent’s interest in the Suburb Q property to the appellant and discharge mortgage registered number … held by H Pty Ltd (“the [Suburb Q] mortgage”) in the respondent’s name at the appellant’s sole expense in accordance with the following orders and directions:
(a) The appellant is to make all necessary inquiries to obtain the finance necessary to transfer the Suburb Q property to him and to discharge the Suburb Q mortgage and advise the respondent of the financier retained by him to this effect;
(b) Upon the appellant advising the respondent of the financier selected by him, the respondent will sign all necessary documents presented to her by the appellant to discharge the Suburb Q mortgage and transfer her legal interest in the Suburb Q property to the appellant at the appellant’s sole expense; and
(c) The appellant shall be liable for and indemnify the respondent against all rates, taxes, and outgoings with respect to the Suburb Q property;
9. In the event the appellant is unable to obtain the necessary finance and discharge the Suburb Q mortgage pursuant to order 8(a), within ninety (90) days of the date of this order, the parties do all things and execute all documents necessary as to place the Suburb Q property on the market for sale on such terms and conditions as follows:
(a) The respondent be appointed sole agent to sell the property;
(b) The respondent provide all instructions to the said sales agent and conveyancer to give effect to these orders including but not limited to:
(i) The method of sale;
(ii) Advertising and marketing of the property;
(iii) The execution of the contract of sale;
(iv) Release of the settlement statement;
(v) Ascertain the status of rates and payments and any information as to any utility accounts outstanding in respect of the Suburb Q property; and
(vi) The payment of the proceeds of sale in accordance with these orders;
(c) The nominated reserved price be not less than $850,000.00 (EIGHT HUNDRED AND FIFTY THOUSAND DOLLARS) unless the appointed sales agent recommends a higher figure or the parties agree on a lower figure and in absence of agreement as to such lower figure, it is to fixed by the court;
(d) Upon the sale of the Suburb Q property the net proceeds be distributed in the following manner and priority:
(i) Pay all costs (including commission) and expenses of sale and conveyancing to the relevant persons;
(ii) Discharge the Suburb Q mortgage;
(iii) Reimburse the respondent for any reasonably incurred costs to clean the property preparing it for sale;
(iv) Pay arrears of all rates, taxes and outgoings with respect to the Suburb Q property of whatsoever nature and kind;
(v) The remainder of the sale proceeds be deposited into the Trust Account of Starke Lawyers for and on behalf of the appellant.
10. It is declared that the respondent is the beneficial owner of the properties located at 1 Y Street, Suburb Z in the State of South Australia as described in Certificate of Title Volume … Folio … and 2 Y Street, Suburb Z in the State of South Australia as described in Certificate of Title Volume … Folio … (“the [Suburb Z] properties”)
11. To this end within thirty (30) days of the date of this order, the parties do all things and execute any necessary documents which may be required of them to the effect of order (10) hereof and in particular:
(a) To transfer the appellant’s right, title and interest in the Manwaring Family Trust (“the Trust”) to the respondent including (but not limited to) any equitable interest held by him in the Suburb Z properties to the respondent at the respondent’s cost;
(b) The respondent indemnify and keep indemnified the appellant in respect of all liabilities in particular those register pursuant to mortgage number … in favour of H Pty Ltd and other outgoings relating the Suburb Z properties including potential capital gains tax.
(c) If deemed necessary by the respondent in her sole discretion to give effect to these orders is at liberty to remove the appellant as a beneficiary or member of any class of beneficiaries of the Trust.
12. In relation to B Pty Ltd (in liquidation) (“the Business”):
(a) Within thirty (30) days of the date of this order, the respondent do all things and execute all necessary documents to:
(i) (i) Transfer, at the appellant's expense, her interest in any debit or loan account of the Business to the appellant to the intent that the respondent thereafter will have no further claim against the appellant in relation to the Business or against the Business in relation to the assets of the Business and any monetary entitlement which either party may have in the Business including without limiting the generality of the foregoing any loan account of the appellant or the respondent in the Business or as to wages or dividends or otherwise either in the past, the present or in the future and any such monetary entitlement of the respondent shall thereafter vest with the appellant;
(b) The appellant shall indemnify the respondent and keep her forever indemnified in relation to any current or future liabilities arising out of or in respect of to the Business or the respondent’s shareholding or any office in the Business;
(c) The appellant shall further indemnify the respondent and keep her forever indemnified in relation to any or all liabilities in the future arising out of or in respect of the Business or in the respondent’s office in the Business or as a shareholding of the Business including (without limiting to the generality of the foregoing) any past, present or future income tax, capital gains tax, goods and services tax, directors' loans, Division 7A loans or other liability of the respondent and/or of the appellant and/or the Business;
(d) The appellant shall cause to be forgiven, any debt or loan balance owed by the respondent to the Business; and
(e) The appellant shall indemnify and keep indemnified the respondent from any claim, demand, suit, cost or action of the Business against the respondent.
13. The parties do all things and execute all necessary documents and pay all monies equally to cause Mr R, finance professional, to undertake the calculation of any anticipated capital gains tax pursuant to these orders.
14. Including but without limiting the effect hereof, the respondent shall retain for her sole use and benefit absolutely free from any further claim or demand of the appellant:
(a) The property situate at BB Street, Town CC;
(b) Her motor vehicle;
(c) The clothing, jewellery and personal effects currently in her possession;
(d) The furniture and household effects currently in her possession;
(e) All amounts standing to her credit in any bank, building society or Credit Union account;
(f) Her Super Fund 1 superannuation entitlements standing in her own name without adjustment; and
(g) All other property in her possession or control whether registered in her name or not and not otherwise specified herein.
15. Including but without limiting the effect hereof, the appellant shall retain for his sole use and benefit absolutely free from any further claim or demand of the respondent:
(a) His motor vehicles;
(b) The clothing, jewellery and personal effects currently in his possession;
(c) The furniture and household effects currently in his possession;
(d) All amounts standing to his credit in any bank, building society or Credit Union account held in his sole name or in the name of DD Company;
(e) His Super Fund 2 superannuation entitlements standing in his own name without adjustment; and
(f) All other property in his possession or control whether registered in his name or not and not otherwise specified herein.
16. The parties shall do all acts and things reasonably required including the signing or execution of all necessary documents to give effect to the terms of this order within seven (7) days of being requested to do so.
17. That without prejudice to any other relief that may be available to a party, that if either party shall refuse or neglect or omit to execute any document necessary to give effect to the terms of these orders within seven (7) days after the same shall have been tendered to that party by or on behalf of the other party then in such event of refusal, neglect or omission a Judicial Registrar, Senior Judicial Registrar or other judicial officer of this Court or of any court exercising jurisdiction under s 106A of the Family Law Act 1975 (Cth) upon proof by affidavit of such refusal, neglect or omission is hereby appointed to execute and if in that judicial officer’s opinion it shall be necessary to do so to settle the same and do all such other acts and things and execute such other documents as shall be necessary to give full force and effect to these orders.
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
Background to the litigation
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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