CRESWELL & CRESWELL

[2015] FCCA 1094

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

1. The wife’s application to set aside the consent orders made on 29 April 2014 be dismissed.

2. 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

1. 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. 

2. 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. 

3. 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. 

4. 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.

5. 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.  

6. Ms Creswell decided to leave the marriage,…