Porto and Porto

[2010] FamCA 750

FAMILY COURT OF AUSTRALIA

PORTO & PORTO [2010] FamCA 750

FAMILY LAW – DISCLOSURE – Orders to foreign banks to release documents

APPLICANT: Ms Porto

RESPONDENT: Mr Porto

FILE NUMBER: MLC 3219 of 2007

DATE DELIVERED: 26 July 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Ms Costello

COUNSEL FOR THE RESPONDENT:

THE RESPONDENT: In person

Orders

The orders that I’m going to make today will be:

1. That all existing applications shall be adjourned to 10.00am on 13 August 2010 before me.

2. That the wife shall file and serve any responding material to the husband’s application filed 20 July 2010 by 2 August 2010.

3. That Banco Santander Central Hispano S.A. – Banco Santander release information on any bank account open or that it has been opened at this bank under the name of Mr Porto, whether in his sole name or as a co-tenant, and in particular regarding accounts number …960 and number …185, including in this information regarding all the movements, transfers made or received, withdrawals, statements, balances, and in general all the information in this regard in favour of Westminster Lawyers.

4. That Caja de Ahorros y Pensiones de Barcelona S.A. - La Caixa release information on any bank account that is open or it has been opened at this bank under the name of Mr Porto, whether in his sole name or as a co-tenant, and in particular regarding account number …097, including in this information regarding all the movements, transfers made or received, withdrawals, statements, balances, and in general all the information in this regard in favour of Westminster Lawyers.

5. That Banco Bilbao Vizcaya Argentaria S.A. – BBVA release information on any bank account that is open or it has been opened at this bank under the name of Mr Porto, whether in his sole name or as a co-tenant, including information regarding all the movements, transfers made or received, withdrawals, statements, balances, and in general all the information in this regard in favour of Westminster Lawyers.

6. That all questions of costs of this day shall be reserved, including as to whether the Federal Proceedings (Costs) Act applies, the adjournment today being necessary because the Court-arranged interpreter did not attend.

IT IS NOTED that publication of this judgment under the pseudonym Porto & Porto is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:   MLC 3219 of 2007

MS PORTO

Applicant

And

MR PORTO

Respondent

REASONS FOR JUDGMENT

1. This matter is back before me today after very many interim applications in the past.  Today there is the wife’s Amended Application in a Case filed 22 July 2010, seeking specific authorities directed to specific Spanish banks in relation to specific bank accounts, in order to obtain the details of transactions in relation to those accounts, in the same effort to track down the millions of dollars that the husband says that he lost originally in Portugal, although it has since become apparent that some of the monies seemed to have made their way to Spain.

2. The husband has his own Application in a Case before me today, that the wife’s side has not had the opportunity to answer yet.  He is seeking that the matter be listed for trial, and that he be permitted to leave the country.  He is also raising again the jurisdictional issue that was determined at the outset of these proceedings, by Cronin J. 

3. Unfortunately, today, despite the fact that the Court put in place everything that should have been put in place for a Portuguese interpreter to be here for the husband, no interpreter has attended.  Now, the husband speaks and understands English very well.  He has lived in Australia for more than 30 years.  However, he says that he is at the very least lacking in confidence as to his full capacity, and that is not something that I am prepared to second guess, given the serious nature of the applications that are being made, which could down the track result in an application for the husband to be imprisoned, even for an indefinite time, if he again refuses to sign a particular authority that is being sought.  I say that against the backdrop of already having sent the husband to prison previously, in relation to his failure to sign a document.

4. What has become inevitable today, is an adjournment of the hearing, to enable another Portuguese interpreter to be arranged. I have suggested to Ms Costello, for the wife, that she have a look at the federal legislation in relation to the costs lost today through no fault of the parties. 

5. In terms of dates, it appeared that it would be easy enough for me to find a date within the next two weeks, for the matter to proceed with the interpreter at court.  Ms Costello has advised however that her client has a non-refundable ticket to leave Australia on 5 August, just next week, to travel to Portugal and presumably Spain as well, in another effort to find the monies that she says have been secreted by the husband.

6. Counsel for the wife has asked me in the interim today to at least make orders in accordance with paragraphs 5, 6 and 7 of the wife’s Amended Application.  Paragraphs 5, 6 and 7 seek specific orders, directed to three specific banks in Spain in relation to specific bank accounts, seeking all the relevant details of movements in and out of those accounts in the husband’s name.

7. I am satisfied I can make those orders, without unfairly encroaching – or potentially unfairly encroaching – on any rights of the husband.  There is no basis upon which he could say that he does not agree to those orders, in the sense that the monies that he says are missing should be a matter of concern to him as much as to the wife.  I gave him the opportunity to argue against orders directed to those banks, and he did not make any submission that would dissuade me from making those orders at least, so that the wife has some assistance in approaching those banks while she is in Spain.  That is why it is pressing for those orders to be made today, pending other orders on the next date. 

8. I must do the best I can to ensure that her time is not wasted, to bring the matter to fruition, as the husband wants every bit as much as the wife, and to ensure that I can get this matter on quickly for hearing.  So even without the husband having the benefit of the interpreter today, I am satisfied that for these very simple orders directed to banks, he has sufficient understanding to have had the opportunity to say what he needs to say, and I propose making those orders. 

9. I shall adjourn the case until 13 August.  I shall ask my Associate to make sure that the interpreting service gets onto it immediately, and confirms to the Court that there is a Portuguese interpreter available for that day.

RECORDED  :  NOT TRANSCRIBED

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau.

Associate: 

Date:  26 July 2010