CRESWELL & CRESWELL
[2015] FCCA 1094
•4 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRESWELL & CRESWELL | [2015] FCCA 1094 |
| Catchwords: FAMILY LAW – Application pursuant to section 79A to set aside consent orders – miscarriage of justice by reason of fraud or suppression of evidence – matters to be considered – application dismissed. |
| Legislation: Family Law Act 1975, s.79A Evidence Act1995 (Cth), s.140 |
| Fox v Percy (2003) 214 CLR 118 Briginshaw v Briginshaw (1938) 60CLR 336 Lancer & Lancer [2008] FamCAFC 112 Gebert & Gebert (1990) FLC 92-137 Suiker & Suiker (1993) FLC 92-436 Jones v Dunkel (1959) 101 CLR 298 |
| Applicant: | MS CRESWELL |
| Respondent: | MR CRESWELL |
| File Number: | ADC 1702 of 2013 |
| Judgment of: | Judge Brown |
| Hearing date: | 6 March 2015 |
| Date of Last Submission: | 6 March 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 4 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Anderson |
| Solicitors for the Applicant: | Lamont Black |
| Counsel for the Respondent: | Mr Dillon |
| Solicitors for the Respondent: | Douglas Hoskins Legal |
ORDERS
The wife’s application to set aside the consent orders made on 29 April 2014 be dismissed.
The wife’s application for spousal maintenance be listed for further directions on 21 July 2015 at 9.30 am.
IT IS NOTED that publication of this judgment under the pseudonym Creswell & Creswell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1702 of 2013
| MS CRESWELL |
Applicant
And
| MR CRESWELL |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Creswell “the husband” has a bad back. He finds relief sitting in a spa. At some time, late in 2011, he and his former wife, Ms Creswell purchased a spa for their former matrimonial home located at Property F.
The spa is approximately four metres by two metres in dimension and weighs around 400 kilograms. Two people can manoeuvre it on piano trolleys. It does not have to be directly plumbed in, but clearly it is awkward to move.
The spa cost $29,500.00. It was purchased from (omitted) Pty Ltd.[1] At the Property F property, it was placed under a pergola in the backyard. It was behind fencing and could not be seen easily from the street. Access to the backyard was through a sliding gate and a garage door, both of which could be locked.
[1] See annexure C7 to the wife’s affidavit filed 24 April 2014.
Mr Creswell and Ms Creswell separated, in emotionally charged circumstances, on 24 April 2013. Mr Creswell works in (country omitted), in the (omitted) industry. At the time of separation, he worked 28 days on/28 days off, returning home to Adelaide for rest and recuperation.
The parties have two children, twins X and Y, born (omitted) 2008. At the time of separation, Ms Creswell was employed on a part-time basis as an (occupation omitted). It is her case that she was X and Y’s primary provider of care. She also alleged that Mr Creswell was a controlling and domineering spouse, of whom she was frightened.
Ms Creswell decided to leave the marriage, whilst Mr Creswell was in (country omitted). She arranged for a removal van to come to the Property F property on 23 April 2013 to remove items of furniture and other property.
It is her case that she left a reasonable amount of furniture behind, but took what she needed for herself and the children. She has sworn that she left the spa behind and vacated the Property F property leaving it locked and secured, with one set of keys within, on 23 April 2013. Since which time, she has never returned.
Ms Creswell attended at Adelaide airport, on 24 April 2013, in the company of two Australian Federal Police officers, to meet Mr Creswell’s plane from (country omitted).
The purpose of her attendance, at the airport, was to advise Mr Creswell formally, by means of a letter delivered to him at the time, that the marriage between them was over and that she and the children had vacated the Property F property. She says she gave Mr Creswell the remaining set of keys to the Property F house with her letter.
Mr Creswell was devastated by what happened at the airport and afterwards. The separation was totally unexpected by him. He was hurt that the wife used a letter to end the marriage and asserts that he was wrongly categorised to police as a violent and dangerous person. In addition, it has consistently been his position that he was intimately involved in caring for the twins, during the periods he was in Adelaide.
In these circumstances, Mr Creswell was particularly aggrieved that Ms Creswell’s letter to him provided only a postal box address for the children and no means for him to interact directly with them. It is Mr Creswell’s case that, on the evening of 24 April 2013, he came home to a house, which had been gutted of all furniture, including the spa.
On 19 August 2013, in his third affidavit filed in the proceedings, which he commenced on 16 May 2013, Mr Creswell deposed as follows:
“… I say that prior to separation there was a brand new spa at the former matrimonial home. When the wife met me at the airport to advise me that the marriage was over I returned to the former matrimonial home and it was empty. The wife had removed all of the furniture from the house and the spa from the backyard.”[2]
[2] See husband’s affidavit filed 19 August 2013 at paragraph 22
Mr Creswell’s perception that he had been harshly dealt with by Ms Creswell set the scene for the court proceedings which followed. These proceedings have been bitterly contested and marked by a high level of acrimony. The proceedings have concerned arrangements for both the parenting of X and Y and the division of marital property. Undoubtedly, the proceedings have consumed thousands of dollars in legal fees.
Mr Creswell was well paid, whilst he worked in (country omitted). The level of his remuneration seems to have encouraged the parties to have lived well, during their marriage and to have made a number of imprudent investments, which they were unable to sustain in the more austere financial circumstances following their separation.
The trial of the parties’ competing applications, in respect of both arrangements for the children and the division of property, was fixed to commence on 28 April 2014. On this day, following the release of a family report, the parties were able to negotiate final parenting arrangements for the care of X and Y.
On the following day, ostensibly at least, they reached agreement in respect of the settlement of property issues. As a consequence, a lengthy minute was negotiated, which was ultimately ratified, by me, as being just and equitable. A notation to the order reads as follows:
“At the date of trial the parties had liabilities in the order of $170,000.00”.[3]
[3] See notation F to the orders of 29 April 2014
The Property F property was heavily mortgaged. In addition, the parties had an investment property, which was negatively geared and a vacant piece of land, which was also mortgaged. All these properties had been sold prior to the settlement of the parties’ property proceedings, but at a loss, leaving a liability to a mortgage insurer and the parties’ financier.
On 29 April 2014, the parties agreed that Mr Creswell would assume sole liability in respect of monies owed by the parties to the (omitted) Bank and (omitted) Pty Ltd – the mortgage insurer – arising from the sale of these properties and indemnify Ms Creswell in respect of these debts.
The parties utilised credit to purchase the spa and install air conditioning at the Property F property. They borrowed approximately $40,000.00 from the (omitted) Bank to fund these purchases. Ms Creswell deposes as follows in respect of the circumstances of this loan:
“In November 2011 Mr Creswell and I both applied for and were approved for a Personal Loan for Air Conditioning and a Swim Spa for our Property F property.
As Mr Creswell was in (country omitted) for work, he wanted the Air conditioning and swim spa installed urgently. We agreed for me to have the $40,000 loan in my sole name but we would both pay this loan off once we sell either of our properties. The funds from this persona loan were used to purchase the swim spa and air-conditioning for the Property F property.”[4]
[4] See wife’s affidavit filed 19 February 2014 at paragraphs 48 - 49
Shortly prior to the trial, the wife remained personally liable in an amount of $35,000.00 in respect of this loan. She was liable to pay off the debt at the rate of around $200.00 per fortnight. It is her position that she had struggled to make the repayments. However pursuant to order 8 of the consent orders made on 29 April 2014, it was agreed that the wife would retain sole liability for the debt and indemnify the husband in respect of it.
At the time of the trial, the husband’s statement of financial circumstances[5] indicated that he had a weekly income of $3,273.00, which was made up of wages of around $3,000.00 from his employer (employer omitted) and a (employer omitted) pension of $250.00 reflecting earlier service in the (employer omitted). He paid tax of $361.00 per week.
[5] Husband financial statement filed 19 December 2013
The wife’s financial statement,[6] filed in anticipation of the trial, indicated that she was in receipt of a modest weekly wage ($672.00); Commonwealth benefits ($127.00); and family tax benefit ($93.000); by way of weekly income. She complained that Mr Creswell did not pay her child support as assessed. In total she deposed to receiving $1,007.00 per week by way of income.
[6] Wife’s statement of financial circumstances filed 19 February 2014
At trial, it was the position of each party that there were no significant assets available to be divided between them. On this basis generic orders were sought vesting the property, chiefly furniture and household effects, which each party then controlled in that party’s possession.
I was told that the effect of the orders was that the parties’ various debts were distributed so that the husband was responsible for paying 80% of them and the wife 20%. Given the disparity in incomes and the fact that the wife was discharging more parenting responsibilities for X and Y, I was persuaded that this represented a just and equitable outcome.
Uncertainty clouded the whereabouts of the spa, to which the wife’s personal loan related and in respect of which she remained liable. From her perspective, the last she had seen it was when she had left it, safe and secure, at the Property F property on 23 April 2013.
As previously indicated, as early as May 2013, Mr Creswell had asserted that he did not have the spa and it had been missing from the time he had returned to Property F on 24 April 2013, from the emotionally charged meeting with Ms Creswell at the Adelaide Airport.
In the eventuality that both parties were being truthful about their level of involvement with the spa, the most logical explanation for its apparent disappearance was that it had been illegally removed by a third unknown agent.
In July of 2012 or thereabouts, Ms Creswell insured the Property F property and its contents with (omitted). The level of coverage for the contents was $56,180.00. The insured events included theft and vandalism.[7] Given she did not have the spa, but remained liable for the loan which had purchased it, she was inclined to make a claim on the relevant insurance policy.
[7] See Annexure C 6 to the affidavit of the wife filed on 18 June 2014
On this basis, the parties agreed to the making of the following order on 29 April 2014:
“The Husband shall do all things necessary and sign all documents necessary to enable the Wife to make an Insurance Claim in relation to the alleged theft of a spa from Property F, following separation NOTING THAT the Wife’s has lodged a claim in relation to a Claim Number (omitted) held with the (omitted) AND FURTHER NOTING THAT the Wife will make the claim in her sole name and shall not require the Husband to execute a claim form.”[8]
[8] See order 9 to the consent orders made on 29 April 2014
Pursuant to order 10 of the consent orders, the wife was to retain the financial benefits arising from the insurance claim. The underpinning of the wife’s case is that the insurance claim represented some form of chose in action worth in the vicinity of $30,000.00, which order 10 vested in her.
The claim did not proceed and has not been honoured. In fact, it is common ground that Mr Creswell withdrew the claim, after a discussion with a claims investigator employed by (omitted). As such, Ms Creswell is aggrieved that she retains a liability for over $30,000.00 but does not have the chattel to which the debt relates.
As a consequence of this she has sought to revisit the orders made on 29 April 2013 on the basis that they are vitiated by some species of dishonesty or nondisclosure on the husband’s part in respect of his dealings with the missing spa and the current effect of the orders is grossly unfair to her.
In the alternative, Ms Creswell asserts that Mr Creswell has contravened order 9 of the orders of 29 April 2014 because he has not cooperated with the process of making a claim on the relevant insurance policy in respect of the missing spa. The difficulty of course being that if Mr Creswell has played a part in the removal of the spa, he would be committing some specifies of fraud on (omitted) by asserting that it had been stolen.
Mr Creswell maintains his position, throughout these proceedings, that the spa was not at the Property F property when he returned on 24 April 2013. In these circumstances, on his oath, he has consistently asserted that he does not have the spa and does not know where it is.
In these circumstances, Mr Creswell asserts that there is no basis on which to revisit the consent orders of 29 April 2014, which he maintains remain just and equitable, particularly given how much of the parties’ joint debts he has assumed.
On the other hand, Ms Creswell asserts that there is something not quite right about the orders, particularly so far as the spa and the debt relating to it are concerned. She maintains her position that she left the spa safe and secure on 23 April 2013. In these circumstances, if what Mr Creswell says is true, he can have no qualms about making a claim on the relevant insurance policy because the spa must have been stolen.
By necessary implication, Ms Creswell asserts that, because Mr Creswell has withdrawn the insurance claim in question, it is tantamount to an admission that he has in some way converted the spa for his own benefit. If this is true, she submits that it is axiomatically a situation which is grossly unfair to her and provides ample justification for re-visiting the consent orders.
These proceedings have been become a de facto inquiry into what happened to the spa. The proceedings are emblematic of all the bitterness and unhappiness the parties currently feel for one another. Both blame the other for their mutually disastrous financial situation at the end of their marriage. Ms Creswell, in particular, seeks some form of vindication from the court and some form of retribution for her former husband which will result in her being cleared from financial obligation arising from the relationship.
Relevant legal considerations
In these reasons for judgement, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[9] I have tried to reach my conclusions on credibility and reliability on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[10]
[9] See Evidence Act1995 (Cth) at section 140
[10] See Fox v Percy (2003) 214 CLR 118 at 129 [31] per Gleeson CJ, Gummow and Kirby JJ
In addition, I bear in mind section 140(2) of the Evidence Act, which indicates that in applying this standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matters alleged.
These criteria reflect the well-known comments of Dixon J, in the case of Briginshaw v Briginshaw[11] as follows:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
[11] Briginshaw v Briginshaw (1938) 60CLR 336 at 362
In these proceedings the wife asserts that the husband has lied on oath about what happened to the spa. It is her position that considerations of logic dictate that the most rational explanation for the disappearance of the spa is that the husband did something with it.
The husband’s position is more nuanced. He asserts that he does not know conclusively what happened to the spa but he has had nothing to do with its disappearance. In these circumstances, given the size of the spa and where it was securely kept, he concedes that it is more likely that the wife took it with her, when she departed the home, than that it has been stolen. However, he is not in a position to categorically assert that the wife is being dishonest about the spa and does not seek a finding to this effect from the court.
For obvious reasons, (omitted) will not indemnify the parties in respect of the spa, if it believes that either party is implicated in its apparent disappearance. The parties are jointly and severally indemnified by (omitted) for theft and vandalism of their household contents. One cannot make a claim on the insurer as a consequence of the dishonest actions of the other, which has prejudicially affected him or her in a financial sense.
Such a claim can only be successfully (and honestly) pursued if it can be established that a third party has been involved in the theft or damage of the spa. Currently, neither party strongly advocates that this is the case. Certainly, Ms Creswell does not.
It is her position that Mr Creswell has consistently lied on oath about what happened to the spa. Clearly, it is a significant thing to allege perjury and deceit of this magnitude. The court must be cautious about reaching a finding of this significance on the basis of indirect inference alone or on its assessment of credit.
If Ms Creswell believed that Mr Creswell had been involved in the removal of the spa from the Property F premises, she was not in a position to honestly make a claim on the relevant insurance policy. Nor can she compel Mr Creswell to take part in a fraudulent claim.
The forensic purpose of order 9 of the consent orders seems to have been to place Mr Creswell in a position where he would be hoist on his own petard. If he was truthful about having no knowledge about the loss of the spa, he could have no fear about pursing the insurance claim. If he was not truthful, the consent order would flush out his lie.
In her original application filed on 18 June 2014, the wife sought the following orders:
(1)That the consent orders made by His Honour Judge Brown on 28 April 2014 be set aside on the following grounds:
1.1 The Respondent failed to make full and proper disclosure of his knowledge of the location of the spa formerly located at Property F in the State of South Australia;
1.2In the alternative, the Respondent gave false evidence in relation to the location of the spa formerly located at Property F in the State of South Australia;
1.3The respondent has defaulted in carrying out an obligation imposed on him by the Order, namely, to do all things necessary and sign all documents necessary as may enable the Applicant to make an Insurance Claim in relation to the alleged theft of a spa from Property F in the State of South Australia;
1.4The respondent failed to make full and proper disclosure of his income;
1.5 The respondent gave false evidence in relation to his income;
1.6 In all of the circumstances, the consent orders were improperly procured.
2.In the alternative, the consent orders made by His Honour Judge Brown on 28 April 2014 be varied so that the Respondent pays to the Applicant the sum of $30,000 being an amount representative of her entitlement under the (omitted) policy referred to at paragraphs 9 and 10 of the orders of 28 April 2014.
3. That the Respondent pay the Applicant’s costs of and incidental to this Application on an indemnity basis.
In his response filed on 20 August 2014, the husband seeks the dismissal of the application. On 29 September 2014, I fixed the matter for hearing on 6 March 2014. I made it clear that the focus of the hearing was to be on order 9 of the consent orders and on the factual controversy surrounding the spa.
Since 29 September 2014, the wife has amended her application to raise issues relating to spousal maintenance. These applications are beyond the ambit of what was envisaged when the hearing was set down. I decline to deal with these applications in the context of a hearing, which was specifically directed to be for the purpose of determining the issue of the spa.
In many ways, the wife’s various applications are an inchoate plea for something to be done to rectify what she perceives as the injustice of a situation where she has the debt for the spa whereas, on her case, the husband has retained the item in question. In these circumstances, she seeks some recompense in the form of a payment to her of $30,000.00, which she asserts is the value of the spa in question and would enable her to discharge the debt to the (omitted) Bank.
From the husband’s perspective, the consent orders should stand. He asserts that the orders in question are inherently fair, given the overall division of responsibility for the parties’ debts, which they contain. He has retained responsibility for the larger proportion of those debts.
In these circumstances he opposes the court revisiting the orders in question, particularly as both parties were represented by counsel, when the orders were made and, as such, it should be assumed that each was aware of the ramifications of the orders being made and freely consented to their making.
The only basis on which the court can revisit the consent orders is pursuant to the provisions of section 79A(1) of the Family Law Act (1975) which provides as follows:
“Where, on application by a person affected by an order made by a Court under section 79 in property settlement proceedings, the Court is satisfied that:
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance;
…
the Court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.”
Accordingly, in circumstances where the court is satisfied that there has been a miscarriage of justice, a discretion is provided to set aside any orders considered to be vitiated by any such miscarriage. The burden falls on Ms Creswell to establish that there has been a miscarriage of justice in all the circumstances of the current case.
In Lancer & Lancer[12] Bryant CJ noted that section 79A contained two aspects. The first being a fact finding exercise, that is whether the applicant concerned could establish, to the relevant evidentiary standard – the balance of probabilities – that there had been a miscarriage of justice by reason of one of the matters set out in sub‑section (1).
[12] Lancer & Lancer [2008] FamCAFC 112
The second part being what followed from such a positive finding, namely whether the court, in its discretion, should set aside or vary the original order.
Section 79A is a piece of beneficial legislation. Accordingly, it is not to be interpreted in an unduly restrictive fashion.[13] I also acknowledge that it is a fundamental requirement of all matrimonial property litigation that the parties to such proceedings make a full and frank disclosure of their financial matters, both to each other and to the court.
[13] See Gebert & Gebert (1990) FLC 92-137 at 77, 935
This a matter of public policy interest, given the high volume of matters coming before this court and the Family Court, involving property issues. It is essential to the administration of justice that as many as possible of these cases be resolved consensually and both the individuals concerned and the community generally have confidence in the probity of such settlements. As such, a failure to make proper disclosure can amount to a miscarriage of justice.[14]
[14] See Suiker & Suiker (1993) FLC 92-436 at 80,471
The Evidence
The wife relies on the following affidavits:
i)Three affidavits of herself filed on 18 June 2014; 23 September 2014; and 27 February 2015;
ii)An affidavit of Ms G filed 21 January 2015; and
iii)An affidavit of Ms E filed 12 September 2014.
The husband relies on the following affidavits:
i)An affidavit of himself filed 20 August 2014;
ii)An affidavit of Ms C filed 24 September 2014.
In his affidavit, Mr Creswell maintained the position, which he has consistently held throughout these proceedings that he does not know the whereabouts of the spa. He appeared unshaken in cross-examination. However, given my assessment of his disposition, I would have been surprised if he had admitted in his evidence that he had removed the spa himself from the Property F premises.
Given the factual circumstances surrounding this matter, in my view, the overwhelming logic of the situation dictates that it must have been a person with ready access to the property, who removed the large and cumbersome spa from the Property F premises. To my mind, it seems inherently unlikely that the spa was stolen.
Ms Creswell was cross-examined by counsel for the husband, Mr Dillon. She was unshaken in her evidence that, when she left the Property F premises on 23 April 2013, the spa was in situ at the former family home. I did not disbelieve Ms Creswell’s evidence in this regard.
Ms Creswell’s evidence is corroborated by that of her friend, Ms G. Ms G was also cross-examined by Mr Dillon. I found Ms G to be a credible witness. On balance, it seems to me to be improbable that the wife and Ms G are in cahoots and have fabricated their evidence regarding their last interaction with the spa.
Ms Creswell and Ms G have been close personal friends since 1995. In these circumstances, Ms Creswell requested Ms G’s assistance in moving out of the Property F premises on 23 April 2013. Both women confirm that Ms Creswell had retained removalists to assist in this regard, who were charged with removing items from the home, but not the spa.
Ms G deposes as follows, in respect of the spa;
“That the Property F was not located in a most desirable area and as such the “Creswell’s” had put into place during their renovations of the property certain security measures. The front gates had large padlock on them and sliding gate opened electronically, there was high fencing and the gates were of a heavy metal and not easy for us to open without the help of the electronic system.
I recall that the spa was a very large one, it appeared several metres long and at least a couple of metres wide. The spa was located under a covered pergola which had a fake lawn around the spa pool area which was fenced on what I believe was three sides. When I say there were three sides I mean there was the house wall to one side, there was the shed to the other side and on the other side there was a drop down blind, this gave the impression of an enclosed area. The spa was certainly not visible from the street or from any other property as far as I can remember.
I remember thinking that the spa pool was huge and there must have been problems installing it in a garden that was so small, I think about 200 square metres in size. It would have been a very difficult job to install in the Property F property.”
In her evidence, Ms G conceded that her apparent attribution of 200 square metres for the size of the pool was an obvious mistake. However, I accept the tenor of her evidence that the spa was not easily removed and neither she nor Ms Creswell and her removalists took the spa from the Property F premises on 23 April 2013.
Ms G’s evidence was that she observed Ms Creswell secure the front gates of the property about 5.30pm that afternoon. Ms Creswell’s evidence was that she appreciated that the spa was important to Mr Creswell because of his bad back. It is her evidence it was Mr Creswell, who utilised the spa more than did she. This evidence does not appear to be inherently improbable.
As previously indicated, at an early stage in the proceedings, it became apparent that there was a controversy about the whereabouts of the spa. From this early stage, the husband asserted that he did not have the spa and it was not at the Property F premises, when he returned there on the evening of 24 April 2013. In his evidence, Mr Creswell conceded that he had lived at the Property F premises from this date until January 2014, when he had moved into a rental property. The Property F property was subsequently sold.
I accept Mr Creswell’s evidence that the parties’ separation was extremely traumatic for him and he felt harshly dealt with in regards to the manner in which the wife chose to communicate to him that the marriage between the parties was at an end. I also accept Mr Creswell’s evidence that it was at least his perception that Ms Creswell had taken more of the furniture at separation and he felt that this was unfair.
Mr Creswell’s evidence, which I also accept, is that the parties met with one another, at some time in late May of 2013 to discuss their situation. The main focus of the conversation was on arrangements for the care of the children, but at the time an attempt was made to reconcile where various items of matrimonial property were located. At this meeting, Mr Creswell asserts that he first told Ms Creswell that the spa was missing. He also concedes that the meeting was not particularly productive and soon broke down into mutual recriminations.
What is clear, at this early stage, is that neither party seems to have been in a positon to assert that the spa had been feloniously removed by a third party. Given Ms G’s evidence about her last observation of the spa and its location behind locked gates, it seems to me to be highly improbable that the spa was stolen between the afternoon of 23 April and the evening of 24 April 2013 by some opportunistic thief. The spa is too big and Mr Creswell in particular, does not assert that he observed any sign of forced entry, when he returned to the home. He made no report to police.
It seems to me to be highly improbable that Ms Creswell returned to the property after Ms G had left and prior to Mr Creswell’s return and, whilst at the property, legally removed the spa, in order to clandestinely conceal it from the husband’s possession to gain some subsequent advantage over him in the then prospective family law proceedings.
Between the date of the institution of proceedings and early January 2014, relations between the parties were strained and acrimonious. Correspondence relating to the whereabouts of the spa passed between their respective legal advisors.
Each maintained his/her assertion that he/she did not have the spa. Although the wife was not in a position to assert conclusively that the spa had been stolen, she was understandably concerned that she had a significant liability in respect of the spa. She was also aware that the spa was subject to insurance.
In these circumstances, she elected to raise the matter with police. Ms Creswell alludes to her interaction with police in the affidavit of her evidence prepared in anticipation of the April 2014 trial. Her statement to police, dated 8 January 2014, is annexed to that affidavit.[15] In her statement, Ms Creswell asserted to police the following:
…“Sometime in June 2013, I received a copy of Mr Creswell’s affidavit and was shocked to read that the outdoor spa was no longer at the house at Property F. Mr Creswell stated that I had taken the spa with me and that it belonged to me, as I had taken out the loan. He was implying that it was my responsibility.
Both my young children advised me that they had seen the spa at the home of one (1) of Mr Creswell’s girlfriend’s home. I know that her name is Ms J, but do not know where she lives. Mr Creswell always sends group emails to people, therefore, I was able to find Ms J’s name on emails that were sent to me. Her email address may be (email address deleted) and (email address deleted). I assume they are both Ms J’S email addresses.
As Mr Creswell and I do not communicate with one another due to domestic violence issues I have not been able to discuss this with him. However, my lawyer advised me that Mr Creswell does not know of the whereabouts of the spa and advised me to report the spa being stolen.”…
[15] See annexure C9 to the wife’s affidavit filed 24 April 2014.
The import of this statement is clear. Ms Creswell did not believe, in January of 2014 and a few weeks later, when she filed her trial affidavit, that the spa had been stolen. Rather, it was her position that Mr Creswell had concealed the spa in some way out of spite for her and in order to ensure that she could not escape or reduce her liability for the personal loan to which the spa related.
Ms Creswell is no fool. She was also well aware, at the time, that Mr Creswell was not well disposed towards her, particularly whilst the parties were jockeying for advantage over one another in respect of both arrangements for the children and financial matters.
In January 2014, Ms Creswell was sanguine that Mr Creswell had removed the spa from the Property F property and it had not been stolen. As such, she knew and certainly should have been advised that it could not be the subject of a legitimate insurance claim.
On the basis of the evidence available to me, I find the following:
·Ms Creswell did not remove the spa from the Property F premises, when she, Ms G and the removalists packed up various items of property.
·Ms Creswell did not clandestinely return to the property following the afternoon of 23 April 2013 and with the assistance of some unknown associate remove the spa and then conceal it.
·The spa was not stolen by person or persons unknown between 23 April and the evening of 24 April 2013.
In these circumstances, on balance, it seems to me to be more likely than not that Mr Creswell has not been frank about his dealings with the spa since 24 April 2013. He does not provide any evidence of a break in at the Property F premises. He concedes that it would take two men, with piano trolleys, to move the spa. It beggars belief that the spa has dematerialised into thin air. In this context, I prefer the evidence of the wife, corroborated by Ms G to that of the husband.
However, it also seems to me to be the case that the wife either knew or should have been advised that her prospects of making a legitimate claim, to (omitted), in respect of the removal of the spa were nugatory, given the contents of her statement to police. It was and remains her view that Mr Creswell had taken the spa. As he owned the spa, jointly and severally with Ms Creswell, he cannot steal it from himself or her. Therefore, it cannot be the subject of an insurance claim.
In these circumstances it seems to me that the only logical explanation for Ms Creswell’s reporting of the matter to police was an attempt, on her part, to flush out the husband in the lie made by him in the difficult and acrimonious circumstances immediately following the parties’ separation or at the very least increase the pressure on him to recant in the forthcoming proceedings.
In my estimation, Mr Creswell is a stubborn and somewhat bitter person. He is not the sort of person to easily recant. He also has a propensity to maintain a grudge. He has many grudges against the wife, not least of which relate to her removal of furniture from the home and her conduct in respect of post separation arrangement for the children. As recently as 9 September 2014, he wrote an email to the wife’s solicitors in the following terms:
“I will never give up and I have the money to fight… somebody else doesn’t …your client doesn’t!!![16]
[16] See Annexure C 2 to the affidavit of the wife filed 23 September 2014
I appreciate that it is frequently the case that persons engaged in acrimonious proceedings, such as these, sent off ill-considered emails and text messages to vent their frustration or bitterness. I am also aware that this particular email cannot be used to attribute motivation retrospectively.
However, in my view, the email is emblematic of the husband’s attitude towards his former wife. It does him no credit. Of the two parties, in my estimation, he has by far the greater motivation to be disingenuous about property matters and to want to gain advantage over the wife, no matter how petty that advantage might be.
In addition, in my assessment, the husband is not the type of person who would easily admit any act of deceit on his part or try to make amends for it. He is far more likely to be inclined to tough it out. In all these circumstances, both parties were aware that the orders relating to any prospective insurance claim in respect of the spa were largely meaningless. Both parties were well aware that the spa had not been stolen and therefore could not be the subject of a legitimate insurance claim. Rather the provenance of the spa had become a symbol of their bitter struggle with one another.
The parties were both in a difficult position leading up to the trial of April 2014. The proceedings thus far, no doubt, had been very expensive for both of them. The property proceedings were concerned with the division of debt between them, rather than the distribution of property. In these circumstances, both were under compulsion to seek an accommodation with one another. It made no financial sense to have a three day trial about the issue.
Mr Creswell was in a particularly difficult position. He had lied to his wife and lied to the court on oath about the spa. He too must have known that he could not make an honest insurance claim in respect of the spa and there were inherent risks in him attempting to do so.
In these circumstances, the parties negotiated a settlement of the property proceedings which saw Mr Creswell assuming responsibility for 80% of the parties’ various debts, which the court was content to endorse given the husband’s superior income. The orders were expressed as being final ones. However, from the wife’s perspective, the orders represented unfinished business so far as the spa was concerned.
Since the consent orders of 2014, the wife has not been inclined to let go of the issue of the spa, particularly as from her perspective the effect of the consent order was to leave her with the debt which relates to it and not have the spa itself. I can understand why she holds such an attitude.
The question for the court is whether her obvious sense of grievance about the spa is amenable to being rectified in the context of her application to the court and, if it is, whether it is just and equitable that it should be.
The orders relating to (omitted) appear to have been carefully crafted. Both parties have been represented in these proceedings by the same counsel as appeared at the trial and engaged in the negotiations, which led to the consent orders of 29 April 2014. The order specifically required the wife to make the claim on the policy in her sole name and shall not require the husband to execute a claim form.
On my view of the circumstances surrounding the disappearance of the spa, the husband would have been foolish to have agreed to an order requiring him to perjure himself further with (omitted). He was fully aware that he could not make a legitimate claim for the theft of the spa and if he made a dishonest one, the consequences for him were potentially serious.
The wife was also in a precarious position. She wished to settle the proceedings, which saw the husband assuming responsibility for the parties’ major debts arising from their imprudent real estate investments. However, she also realised that she had some form of leverage of the husband, given his lack of candour with both her and the court. In seems probable that she wished to maintain some form of pressure on the husband in this regard.
In my view, the only conclusion to be drawn from order 9 of the consent order of 27 April 2014 was that both parties were well aware, at the time, that no legitimate insurance claim could be made in respect of the spa. In this sense, in my assessment, both agreed to the order somewhat cynically and disingenuously. The husband on the basis that it could only be the wife who could make the fraudulent claim and so he was effectively off the hook. The wife in the sense that she was putting the issue on ice for possible later reactivation.
Although the order envisaged the wife being responsible for making the claim, the husband was required to do all things necessary and sign all documents presumably short of signing the claim form itself to enable the wife to make [the] insurance claim.
On one possible interpretation, the order may be taken to mean that the wife required the husband to stick to his story about the stolen spa, which in my finding the wife knew was untrue, so that she could make the claim with apparent clean hands, so far as the insurance company was concerned, and then receive the benefit of the payout concerned.
If the wife did think this, both she and those advising her are both naïve and cynical. Ms Creswell wished to both benefit from and be insulated from Mr Creswell’s lies about the spa. He would make any necessary false statement to the insurer but she would get any monies released in respect of the claim. For all I know Ms Creswell may have rationalised this approach on the basis that she considered Mr Creswell had stolen the spa from her.
As is clear, Ms Creswell was not inclined to let the issue of the spa drop. She considered that Mr Creswell was pinned by his lie and should be made to suffer the consequences of it. It is her case that Mr Creswell has not discharged his obligations, arising under order 9, because he has not done everything necessary to proceed with the insurance claim.
The wife asserts that she was advised by (omitted) on 28 April 2014 that the company was prepared to pay her the sum of $30,000.00 as the replacement value of the spa. She agitated for Mr Creswell to proceed with the claim.
On 22 May 2014, Mr Creswell sent Ms Creswell what I regard as a curious email. It read as follows:
“Can you provide me the details for (omitted) insurance as per the court orders so I can advise them about the spa. We may have found it therefore you if that is correct then you will have to pick it up and I will inform them that there is no insurance claim to be had and it is your responsibility to pay for it. Also if it is the spa (not sure yet) then you will have to pay for removal of it
…
I will go to (omitted) bank next Thursday and advise them of situation and so hold of on claim until I verify if it is your spa. Trying to assist as per court orders.”[17]
[17] See Annexure C 2 to Ms Creswell’s affidavit filed 18 June 2014
Mr Creswell provided Ms Creswell with no further concrete information to advance his assertion that the spa might have been found. Certainly he did not respond to a request from Ms Creswell to provide the address where it was believed to be located.
More recently, Mr Creswell has deposed that he received a telephone call from a Ms C, reputedly a mutual friend of the parties, who told him that she believed the spa was located at the home of Ms E, a friend of the wife. Ms E denies having any knowledge of the whereabouts of the spa and refutes any suggestion that it was ever at her home.
Ms C has not been called to be cross-examined in the case. She deposes to having had a conversation with Mr Creswell about the possible whereabouts of the spa and whether it might be in Ms E’s garage. In this context, Ms C deposes that she said words to the effect of “that there was a possibility the spa could be located there.”
In his oral evidence, Mr Creswell concedes that the whole issue of the spa being in Ms E’s garage was a red herring. I do not know what to make of it. In cross-examination, Mr Creswell indicates that he was under duress, under stress when he raised the issue of the spa having been found. I accept that he was extremely stressed at the time. How could he not be, when the metaphorical chickens relating to his lie had started to come home to roost.
However, I am unable to conclude, I think, that Mr Creswell, at the time, was trying to think of some means of getting the spa back to Ms Creswell so he could ease the pressure, then laying on him, in respect of possibly having to make a fraudulent insurance claim or face an allegation of having provided untrue evidence to the court.
I have not been provided with any documents from the (omitted) file. Neither party has seen fit to subpoena the insurance company’s file, which is likely to contain transcripts of interviews between claims investigators and both the husband and the wife, about what each said he or she knew about what had happened to the spa. I think I can infer from the fact that the wife has not called evidence from (omitted) that she is aware that such evidence would not have assisted her case.[18]
[18] See Jones v Dunkel (1959) 101 CLR 298
On 29 May 2014, the husband emailed the wife and indicated to her that he would tell the insurance company “what I know.”[19] Mr Creswell is not particularly discursive about the exact nature of his various conversations, with (omitted), in his affidavit evidence. He acknowledges that he was required to attend a telephone interview with a gentleman known to him at Mr M, at the (omitted) Bank branch at (omitted). Following this telephone conference, Mr Creswell withdrew the insurance claim which had been lodged by Ms Creswell.
[19] See Annexure C 4 to Ms Creswell’s affidavit filed 18 June 2014
The effect of Mr Creswell’s oral evidence is that Mr M led him to believe that he was in jeopardy of losing everything if he proceeded with the claim, including his working visa for (country omitted). Against this background, it is Mr Creswell’s evidence that he elected to withdraw the claim concerned, which he understood he was entitled to do, as he was one of the holders of the policy concerned.
On 17 July 2014 Mr M, the investigations co-ordinator (general insurance) at (omitted) sent an email to Mr Creswell indicating that a claim had been lodged for the missing spa on 20 July 2013. It seems that the wife lodged this claim, although how she believed she could do so, if she considered Mr Creswell had removed the spa from the Property F premises, is unclear to me. Mr M writes as follows:
“An investigation was conducted due to the circumstances of the event. We completed a recorded interview with insured Ms Creswell on 21 May 2014. As the information gathered in the investigation confirmed it was clear that the missing spa was not as a result of a theft from an unknown person/s, and was more of a domestic issue. As the theft of the spa was not by an unknown person/s, this event is not claimable under the policy.
(omitted) and our investigator both spoke with Mr Creswell via the telephone on multiple occasions. Mr Creswell conducted all things necessary and no formal interview was conducted, however this did not affect the outcome of the claim. Even if a recorded interview was conducted with Mr Creswell, we would not have accepted the claim.”[20]
[20] See Annexure C1 to Mr Creswell’s affidavit filed 20 August 2014
I have not been provided with the information Ms Creswell provided to (omitted) in her recorded interview. It seems unlikely that, given Mr M’s conclusions as reported in his email to Mr Creswell, this was significantly different to what she told police in January 2014 that it was her view the husband was implicated in the removal of the spa. In addition, Ms Creswell has not made any attempts to elicit evidence from Ms J.
I agree with Mr M’s conclusion that the removal of the spa from the Property F premises is and was a domestic issue. The spa was never stolen and so could not have been the subject of a legitimate insurance claim, a fact known to both parties when the consent orders were negotiated.
Conclusions
In my view, this inquiry into the circumstances surrounding the making of the consent orders of 29 April 2014 has consumed unnecessary time and resources and does not reflect either party in a good light. The husband has revealed himself to be dishonest.
The wife has sought to take advantage of that dishonesty but in so doing has not presented herself in a blameless manner to the court. In my view, she was well aware that no legitimate claim could be made for the spa.
I have no evidence as to what is the current value of the spa. Its exact whereabouts remain clouded but I am confident that it was not stolen from the former matrimonial home. In these circumstances, it is artificial to equate the spa to its purchase price. In my view, just because the husband converted, at some stage, the spa to his own use does not mean the wife is entitled to the sum of $30,000.00.
In my view, there can be no challenge to the justice and equity of the rationale on which the consent orders were made. The parties’ extensive debts were divided so that the husband retained responsibility for 80% of them. It is implicit in the orders concerned, including the notations to them, that the parties were well aware that the husband would assume responsibility for the vast majority of the parties’ debts.
As such, I do not think that this case presents a situation which can be characterised as a miscarriage of justice. The wife agreed to the orders concerned knowing that it was likely that the husband had not been frank about the spa and it could never be subject to an insurance claim. She agreed to the orders nonetheless. In my view, the orders clearly fell within the ambit of what was just and equitable. There is no evidence that in agreeing to them Ms Creswell was acting under duress.
Much censure must attach to Mr Creswell. I find that he lied about the spa. However, Ms Creswell was aware of this fact when she agreed to the orders in question. As such, it cannot be said that she was duped or tricked into the orders of 29 April 2014 by the fraud of Mr Creswell or because evidence had been suppressed. In my view, Ms Creswell knew what she was doing when she agreed to the consent orders.
In all these circumstances, in my view, it not appropriate to set aside the orders in question and for the court to substitute other orders pursuant to the provisions contained in section 79A(1) of the Family Law Act.
In the case of Gilbert & Gilbert[21] I said as follows:
“It is well recognised that one of the most stressful life events that can ever befall an individual is marital separation followed by divorce proceedings, surpassed as an emotional trauma only by the death of a spouse or other near relative.
In most cases, the implications of marital breakdown are far reaching and multi-faceted, encompassing financial considerations; changes in arrangements for the care of children; as well as obvious significant emotional ones for the parties concerned. These are challenging and life changing events.
One of the frequent and inevitable consequences of separation is a diminution in the standard of living for the spouses concerned. Two households cannot live as cheaply as one. Resources and expenses have to be duplicated across two homes. Debts and assets may have to be rationalised. Once commonly held aspirations may have to be abandoned and priorities in life reconfigured for the now separated spouses.
There is nothing easy about this process. Individuals, when placed under stress, do not always behave logically, kindly or even necessarily in ways which are objectively in their best interests. However, for obvious reasons, in the period following marital breakdown, many significant and far reaching financial decisions may have to be made, when the individuals concerned are least emotionally equipped to deal with them.”
[21] Gilbert & Gilbert [2013] FCCA 667
The circumstances surrounding the parties’ separation were particularly difficult for Mr Creswell. He was bitter and resentful at how he perceived he had been treated by Ms Creswell. It was at this early stage that the deceit about the spa seems to have coalesced in his mind and then assumed an ever growing significance as the proceedings unfolded.
However, the fact remains that divorce and subsequent property division are a perennial fact of modern life. Notwithstanding the sympathy the court is likely to feel for persons, who find themselves the subject of the powerful emotions which family law proceedings invariably evoke, the process still requires the individuals concerned to be honest in their dealings with one another and with the court.
For that reason, the court requires that evidence before it be truthfully given. Affidavits are on oath taken before a witness. This is not a matter of empty form. It may be said that all is fair in love and war but proceedings such as these are no mere tactical skirmish between persons who were formally intimates, in which liberties may be taken with the truth. They are no less solemn than other court proceedings just because their subject matter is of a personal nature to the parties concerned.
As such, the court should not turn a blind eye to a situation where it has cause to consider false evidence has been given in proceedings before it. Such a consequence may cause the wider community to lose confidence in the system of adjudication of property disputes in the court under the provisions of the Family Law Act. For these reasons, I record my censure of the conduct of both parties.
I will dismiss the aspect of the wife’s application relating to section 79A. I will adjourn the aspect of her application relating to spousal maintenance until 21 July 2015 so that the wife and those advising her may consider the viability of this claim given the view that both parties evinced on 29 April 2014 that they wished the orders concerned to finalise all claims in respect of property between them.
In all the circumstances of this case, I do not propose to make any orders as to costs, as neither party can be regarded as having been successful in the proceedings before the court.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 4 May 2015
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