Porto and Porto

[2008] FamCA 169

FAMILY COURT OF AUSTRALIA

PORTO & PORTO [2008] FamCA 169

FAMILY LAW – PRACTICE & PROCEDURE – Case management

APPLICANT: Mrs Porto

RESPONDENT: Mr Porto

FILE NUMBER: MLC 3219 of 2007

DATE DELIVERED: 12 March 2008

PLACE DELIVERED: Melbourne

PLACE HEARD:

JUDGMENT OF: Dessau J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J. Melilli

SOLICITOR FOR THE APPLICANT: Mr T.J. Puckey

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1.That the wife’s application filed 8 February 2008 shall be adjourned to 18 March 2008.

2.That the wife shall file and serve any amended or further application and/or affidavit in support no later than 4.00pm on Friday 14 March 2008.

3.That the husband shall attend personally at the hearing on 18 March 2008.

4.That the husband’s application filed 7 March 2008 is dismissed.

5.That the order made this day restraining all parties from leaving the Commonwealth Law Courts building is discharged.

6.That the husband shall attend the Portuguese Consulate in Melbourne to sign the Procuracao document in accordance with paragraphs 1 and 2 of the orders made on 14 December 2007, within 2 days of these orders.

7.That each party’s costs of today shall be reserved.

8.That there shall be a transcript prepared of my Reasons for Judgment delivered this day and copies shall be made available to the paries as well as retained on the court file, and it is requested that the transcript be prepared by tomorrow or as soon as possible after that.

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

MRS PORTO

Applicant

And

MR PORTO

Respondent

REASONS FOR JUDGMENT

1. Each party has filed an Application in a Case in this property case, which has been proceeding now for about 12 months.  I have briefly summarised the background to the wife's property claim in paragraph 4 of my reasons for judgment, given on 14 December 2007.  

2. I said: 

   “It is common ground that a large number of properties in Australia, owned by the parties or entities related to the parties, were sold in the period leading up to 2004/2005.  The husband admits that between 2004 and 2005, around $4.6 million was moved to Portugal.  On his account, it was entirely lost when he gave the money to a man he only knows as Mr [D], from whom he received no receipt or paperwork, and with whom he is unable to make any contact at all.”

3. It is worthy to note several other matters by way of the background that I import from the material that has been before me in this case – a case I am managing and trying to get ready for trial in my docket.  First, there are references to the wife believing that the lost moneys in Portugal are higher than claimed by the husband, closer to the sum of about $7 million.  For today's purposes, that is immaterial.  Secondly, there is affidavit material in which the parties' adult son, living in Australia, deposes that his father has told him that if anything happens to him, the son should go to his village in Portugal; the inference being that the family money is there.  Of course, that is completely untested evidence at this stage. 

4. It is also important to note that this far, the husband has faced a very serious lack of memory when it comes to the important details surrounding his conduct and transactions with Mr D.  When the case came before me on 14 December last year, I made various detailed orders for the husband to provide answers and information all directed towards locating Mr D, locating the parties' assets, and towards the full and frank disclosure that he is obliged to make towards a just property settlement between these parties after their very long marriage.

5. I also ordered as part of those orders that the husband sign an authority, referred to as a proxy, or in Portuguese, “a procuracao”, to several Portuguese banks, so that the banks could provide detailed bank statements to the wife. 

6. I ordered the husband to pay the wife's costs.  That was because for the most part, the orders were agreed or unopposed, and the husband could have and should have arrived at those agreements without the necessity of the wife's application.

7. The wife's application in the case before me today was filed on 8 February 2008.  It seeks many of the same orders, or orders related to those previously made, in what appears to be her enduring effort to ascertain where the parties' considerable assets may be.  Her application is supported by an affidavit filed on the same day. 

8. In essence, her case today is that the husband has simply failed to comply with various of the orders made on 14 December.  He has since refused to sign the procuracao, the document required by the bank in Portugal before it will provide to the wife details of the transactions there, details which are fundamental to the preparation of this case. The husband has consistently sworn that the moneys were banked by him in Portugal before he handed them to Mr D.  That explains the import of the bank documents, but through counsel today, he has indicated that he simply refuses to sign the authority. 

9. The wife also seeks further information as to where Mr D lives, the husband having given varying and vague accounts of that, but saying that he is unable to be more particular. 

10. She says he has failed to disclose all the relevant telephone records as obliged by the previous order.  She says he had a mobile telephone account that he has not disclosed.  He denies that is the case and says he has no other accounts.  He concedes having one mobile telephone, but says that he has no records because it was just a pre-paid telephone account.

11. The husband has filed his own application in the case.  It was filed on 7 March 2008.  It is supported by an affidavit filed that day.  That affidavit is in addition to the affidavits he relies upon in opposition to the wife's application.  Those affidavits were filed on 3 January 2008 and also on 7 March 2008.  In his own application, he seeks that his passport be returned to him, and that he be permitted to travel from Australia to Portugal for the purpose of pursuing litigation there - litigation about a $30,000 debt.  The husband also seeks that various previous orders that restrained him from leaving the country and that have resulted in his passport being retained in the court, now be discharged. 

12. I can deal first and swiftly with the husband's application to be permitted to leave the country.  I do not take lightly an individual's freedom of movement.  However, in this instance, there is nothing offered on behalf of the husband to dissuade me from my previous view that at this point any opportunity for a full and frank disclosure towards a just property settlement would most likely be lost if he were to leave Australia.

13. Mr Melilli, on the husband’s behalf, could not disagree that the husband’s affidavits offer no real support as to why he must appear in person in relation to what is a small debt case scheduled in Portugal on 4 April 2008.  He could also not disagree that it related to a very small sum, about $AUS30,000, compared to the millions of dollars being pursued in this case.

14. Finally, Mr Mellili could not disagree that the husband's application has arisen at a time when he is quite forthrightly refusing to comply with the order of this court to obtain the bank documents which might just cast light on the movement of the missing millions of dollars of family wealth. 

15. The combination of factors, against the backdrop of the ongoing history, leave me with no confidence that I can accept the husband’s word that he will use the time wisely in Portugal to search for Mr D.  He has had the opportunity previously.  He failed.  Nor am I confident that he shall return to Australia as he claims, particularly now that he has had the experience of being restrained from leaving this country since his last return. 

16. That leaves me then with the question as to how to deal with the matters outstanding in the wife's application.  I propose adjourning her application until next week on 18 March.  That is to enable the wife, with her advisers, to formulate precisely the orders she seeks in light of the husband’s open refusal to sign the bank document.  Consideration can be given to an order under s 106A of the Act.  But the husband is clearly on notice that strong consideration is also being directed to an application that he be imprisoned to reflect his refusal to comply with the court order requiring him to sign the procuracao.

17. I am satisfied that an adjournment of almost one week serves the dual purpose so that first, as a matter of natural justice, the husband will know the precise nature of orders sought by the wife, as she must set them out in an application to be filed by 4 pm this Friday.  Secondly, he will have an ample last opportunity to reconsider his position, with the clear understanding that if I am satisfied of his contempt by disobedience of a court order, the likely consequence is his imprisonment.  His freedom of movement is already curbed at this stage, and he should urgently consider risking his remaining freedoms.

18. I will, as discussed with counsel this morning, reiterate today the order for the husband to sign the procuracao.  I do that only so that there is absolute clarity for him.  I will not reiterate the other orders as sought by the wife.  They clearly exist.  There must be compliance and these orders can be discussed further with me if relevant on the adjourned hearing date. 

19. There has also been discussion with counsel about some other details of orders.  I agree that there should be an order that the husband must appear in person on 18 March.  I will reserve all questions of costs and I will now look at the Minutes of Orders that I hope have been prepared, to ensure that they cover the territory discussed earlier today. 

DISCUSSION

1. I will make orders in accordance with the Minutes of Orders, dated today's date.  I will direct that they remain on the court file.  The court will prepare the orders and they will be expedited. 

   I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

   Associate: 

   Date:  12 March 2008