Porto and Porto

[2007] FamCA 610

FAMILY COURT OF AUSTRALIA

PORTO & PORTO [2007] FamCA 610

FAMILY LAW - SPOUSAL MAINENANCE - Application dismissed

APPLICANT: MRS PORTO

RESPONDENT: MR PORTO

FILE NUMBER: MLC 3219 of 2007

DATE DELIVERED: 8 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 8 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J.W. St John SC

COUNSEL FOR THE RESPONDENT: Mr D.J. Brown SC, with
Mr G. Freedman

Orders

IT IS ORDERED in accordance with the Minutes of Proposed Orders sealed and attached hereto AND IT IS DIRECTED that such Minutes remain upon the Court file.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Dessau delivered this day will for all publication and reporting purposes be referred to as PORTO & PORTO

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3219 of 2007

MRS PORTO

Applicant

And

MR PORTO

Respondent

REASONS FOR JUDGMENT

1. The first step in this case in this court was on 22 March this year when I made an ex parte interim order stopping the husband from leaving Australia.  Mushin J continued that order on 2 April 2007 when both parties were present and represented.  He also put in place various other injunctions against the husband. 

2. On 18 May, Cronin J dismissed the husband's application for an order to the effect that Australia was the clearly inappropriate forum.  There had already been proceedings in Portugal.  The issue of the continuation of the order restraining the husband from leaving Australia, a Barro application by the wife, and an application for spousal maintenance by the wife, as well as various other less significant applications, were adjourned to the interim hearing list before me today.

3. In the course of this morning it was agreed that the husband will remain in Australia, with a priority hearing being sought for the substantive property case.  The husband will supply an affidavit of documents and other material to the wife, and there will be other detailed orders that counsel have been preparing this morning, including a Barro order in the wife's favour for $50,000 and a lump sum spousal maintenance order of $20,000 in her favour, both to be paid from funds of around $200,000 held in a solicitor's trust account from the sale proceeds of the parties' former matrimonial home.

4. The remaining issues today arise from two applications by the husband.  Both are opposed.  He seeks $50,000 for his legal fees, and he seeks $650 per week spousal maintenance, both to be paid from the same trust fund moneys referred to above. 

5. The background and context is very important.  The husband is 60, the wife 52.  They were both born in Portugal, married there in 1974 but came to Australia shortly after the marriage.  They separated in Australia in about October 2005 after a 31‑year period of cohabitation and they have two adult children, both of whom have sworn affidavits in this case.

6. It is agreed that during the marriage the parties accumulated a significant property portfolio that was sold in the later stages of the marriage.  At around separation, substantial sums - the husband says around $AUS4.5 million, the wife says $AUS7 million or $AUS8 million - were transferred to Portugal.  The husband says the transfers were made with the wife's approval, as the parties planned to move to live there.  The wife says there was no such plan, and the transfers were at the husband's instigation in order to achieve higher interest rates and lower taxation rates. 

7. In any event, the husband now says the money has gone.  He has sworn that he gave the money to a man, Mr S, by way of endorsing a series of bank cheques to him, to invest in real estate projects in Spain and Portugal.  He swears simply that after endorsing $4.5 million in cheques in that way, he has been unable to locate Mr S or the money.

8. The first time he gave this account was in his affidavit filed 19 April 2007 in this court.  He never told the wife that before then.  He never mentioned it in any court proceedings in Portugal, being the proceedings commenced by the wife in January 2006 and being specifically about the location of assets.  He never told it to his children, despite being in close contact with them, particularly it appears from the affidavit, with his son.  What he did tell his children in November 2005, according to their affidavits, was that he would make sure that his wife never received any money.  He went on to tell his son that if anything happened to him, his son could contact the people in the husband’s village in Portugal to be taken care of, the inference being that funds existed and were available there.

9. The reference to the loss of money set out in the husband’s affidavit goes absolutely no further than the brief summary I have given.  The husband has not sworn of any steps that he has taken to locate Mr S, to locate the money, to report the matter to police, or to seek legal or any other assistance.  He has sworn simply that the cheques were endorsed to this man, and the man and the money have disappeared. 

10. When the case was before the Portuguese court early in 2006, the husband at that time retained a sum of almost $AUS200,000.  He says that he used it for living expenses and legal fees.  The wife asserts he has had access to an additional $80,000.  The husband says it was part of the $200,000 sum.  I cannot get to the bottom of that today, but in any event, he says that $60,000 of the overall sum was with him in Australia from April this year.  He claims he has exhausted it in legal fees of $43,000 and living expenses.  He says he is in powerless circumstances: he needs to pay rent and he needs to meet basic living expenses.  He says he cannot work in Australia.  He has evidence that he is suffering psychiatric ill health from the pressures of the marriage breakdown, the case, and most particularly being kept in Australia.  He expresses a particular concern in that latter regard because he says he is needed in Portugal to assist in litigation over a valuable inherited property that he owns with others.

11. I do not propose acceding to either of the orders sought by the husband.  His material fails to satisfy me of his needs, yet he has had access to millions of dollars of the parties' assets.  They have purportedly disappeared in circumstances so extraordinary, that although the evidence is as yet untested, even on his own account, his version raises very real concerns as to the substance of what he claims.

12. The husband has had access to significant other funds, as I have just set out.  The legal fees he claims to have occurred in relation to this case so far are surprisingly high.  A sum of $43,000 for work done to date with one duty list hearing and these two interim hearing list cases between April and June is hard to understand.  His claim that he cannot work in Australia and must have spousal maintenance, coupled with the assertion that if he were able to return to Portugal, he would not need to claim spousal maintenance, also begs the question as to why he can work there but not here, when his working life has been here for 30-plus years, and/or what funds he has at his disposal in Portugal.

13. The wife works part-time as a cleaner, earning $150 per week.  She relies on family help.  Even on the husband's account, she has been shut out of the parties' fortune by his actions in Portugal.  On her account she has also lost the family home due to the husband's borrowings.  The modest sum left in Australia and held in trust should not be reduced further by acceding to the husband's applications.  I propose dismissing both those applications.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate:

Date:  8 June 2007