Porto and Porto
[2007] FamCA 454
•18 May 2007
FAMILY COURT OF AUSTRALIA
| PORTO & PORTO | [2007] FamCA 454 |
| FAMILY LAW - JURISDICTION - FORUM NON CONVENIENS - Wife issues proceedings in Portuguese court seeking preliminary investigations by Portuguese judges when husband has taken assets from Australia to Portugal husband returns to Australia and wife seeks proceedings in Australia including injunctive relief |
| Family Law Act 1975 (Cth) |
| APPLICANT: | MRS PORTO |
| RESPONDENT: | MR PORTO |
| FILE NUMBER: | MLC | 3219 | of | 2007 |
| DATE DELIVERED: | 18 May 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | THE HONOURABLE JUSTICE CRONIN |
| HEARING DATE: | 11 MAY 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MR ST JOHN, SENIOR COUNSEL |
| SOLICITOR FOR THE APPLICANT: | WESTMINSTER LAWYERS |
| COUNSEL FOR THE RESPONDENT: | MR BROWN, SENIOR COUNSEL AND MR FRIEDMAN |
| SOLICITOR FOR THE RESPONDENT: | LOUIS H STERGIOU |
Orders
That paragraphs 3 and 4 of the husband’s response to an application in a case (Form 2A) filed 29 March 2007 be dismissed.
That the further hearing of the wife’s further amended application in a case (Form 2) and paragraphs 1, 2 and 5 of the husband’s response to an application in a case (Form 2A) filed 29 March 2007 be adjourned to the Long Interim Hearing List on 8 June 2007 at 10.00am.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 3219 of 2007
| MRS PORTO |
Applicant
And
| MR PORTO |
Respondent
REASONS FOR JUDGMENT
The preliminary issue in this case is the question of forum. The husband seeks a stay of the wife’s proceedings filed 22 March 2007 in this Court on the basis that in his view, this Court is clearly the inappropriate forum. I disagree and intend by these reasons and the consequent orders, to decline to grant the husband’s stay application filed 29 March 2007.
It is the law in this country that the applicant has a prima facie right to have the Court exercise jurisdiction regularly invoked unless the Court determines it is clearly inappropriate. In this case, the husband and wife were both in Australia when the application by the wife was filed.
The forum issue
The preliminary issue in this case is simple. The wife has issued proceedings in Portugal and the husband says that that country is therefore the appropriate forum. Subsequent to issuing in Portugal, the wife has also issued in this Court. The husband seeks a stay of the proceedings which the wife issued in this Court.
The marriage and the assets
The marriage between the parties occurred over 30 years ago and ended in October 2005. There are two adult children of the relationship.
During the 30 years of the relationship, the parties built up a significant portfolio of assets. Figures of millions of dollars have been mentioned. For the purposes of these reasons, I do not need to delve into the precise figures nor in relation to the format of the various assets as they are either adequately covered in respect of affidavits of the parties or alternatively, a matter of significant dispute.
The Australian proceedings
The wife filed an application on 22 March 2007 seeking both final and interim orders. She was granted permission to list the case on the same day on an ex parte basis. She supported that application with an affidavit which was both sworn and filed on 22 March 2007.
On 22 March 2007, the matter came before Dessau J who made a number of orders the only ones of which that are relevant for the purposes of my reasons are:
That the husband Mr Porto born in January 1947 shall be and is hereby restrained from leaving the Commonwealth of Australia and that his name shall be placed on the AIRPORT WATCHLIST and it is REQUESTED that the Marshal of the Family Court of Australia and the Australian Federal Police shall give effect to this order and it is noted that the husband holds both Portuguese and Australian passports.
Needless to say, Dessau J permitted the application to proceed without notice to the husband and added a notation which reads:
That it is important for the husband to seek urgent legal advice and to appear at court on 2 April 2007 as these orders are only temporary and the husband should have the benefit of telling the court his perspective before further orders are made.
The matter then returned to the Duty List on 2 April 2007 before Mushin J at which time, both parties appeared represented by counsel. The matter was not resolved and his Honour determined a number of issues including making orders for an injunction about the husband dealing with superannuation funds and the payment out to the parties in one form or another of funds held on behalf of the parties by a firm of solicitors. The husband was also ordered to provide details in relation to various monies that the wife alleged had been unaccounted for. His Honour noted that Order 2 to which I have referred above made on 22 March 2007 was to remain in full force and effect.
The hearing on 11 May 2007
The matter was then listed in the Long Interim Defended Hearing List on 11 May 2007. It was agreed that the correct approach was that the matter be considered on submissions in relation to the material filed. As was said by the High Court in Voth v Manildra Flour Mills Pty Ltd and Anor[1]
Ordinarily…it will be unnecessary for the primary judge to do more than briefly indicate that, having examined the material in evidence and having taken account of the competing written and oral submissions, he or she is of the view that the proceedings should or should not be stayed on forum non conveniens (i.e. "clearly inappropriate forum") grounds.
[1] 171 CLR 538
In line with that view, these reasons are relatively short based upon what I have heard and read.
Before turning to the submission however, I have read and relied upon two affidavits of the wife filed 22 March 2007 and 30 March 2007 and an affidavit by a Portuguese lawyer Mr P filed on 9 May 2007. For the husband, I have read his affidavit filed 19 April 2007. I heard submissions from senior counsel for each party. During the afternoon, the husband apparently handed to his counsel a Portuguese document which he claimed had been filed in that country by the wife subsequent to commencing proceedings in this Court and subsequent to the affidavits that I have just mentioned. It was put by the husband that this document may have affected my determination. I agreed to adjourn the proceedings before me and allow each party to make further submissions in respect of the new Portuguese document.
The new submissions
An affidavit was filed on 17 May 2007 of a translation of the new Portuguese document. For reasons as I shall set out, it takes the matter no further than its predecessor which was attached to the wife’s affidavit and does not assist me.
Counsel for the husband said in written submissions that the new Portuguese document left no doubt that the wife had instituted “property” proceedings in Portugal. I do not agree.
Counsel for the wife said in written submissions that there was nothing in the husband’s submissions nor in the new Portuguese document that required the wife to alter the submissions put orally on 11 May 2007.
The disputed facts
There are significant disputes on the facts in this case but ultimately in my view, that does not affect the outcome of the proceedings. In paragraph 4 of the husband’s affidavit he referred to the fact that in 2002, he told the wife that he may move to Portugal and reside there whilst maintaining a presence and contact in Australia. He said that his wife on occasions would also say that she may also leave Australia and reside with him in Portugal and that this situation was confusing because he said that he “discovered” that she was having an affair. He said that in various discussions at times, the wife stated that her “goal” was to be with him in Portugal.
The wife had a very different view about things. She said that she considered Australia to be her home and intended to live in Australia indefinitely. A very large amount of money from the sale of Australian assets ended up going to Portugal.
The wife’s version is that:
In approximately 2002, my husband commenced selling all of the properties owned by us and the companies. He stated he was sick and tired of rental properties and that he wanted to consolidate our assets into the building of one last large project. He said the project would require a large capital investment.
…
To the best of my knowledge the balance of the sale proceeds were originally banked into various bank accounts in Australia. They were then transferred to Portugal in large portions into a Portuguese bank account with [M], account number […] . My husband advised me that the reason that the monies were transferred into a Portuguese bank account was due to the higher rate of interest and the lower taxation rates.
My husband made frequent trips to Portugal and on each trip he took large amounts of cash and several cheques with him. He took amounts of approximately one million dollars with him on each trip to Portugal.
The husband’s version is that the wife not only knew but was acquiescent in the transfer on the basis that the parties were going to live in Portugal. I am obviously not in a position to make any finding of fact about that but I found it rather odd that a wife who had lived in Australia consistently for 30 years and who had two children remaining in Australia, might take that course of action.
The separation
The wife said that the parties separated in November 2005 and that about June 2005, the husband went to Portugal having told her that he had to supervise legal proceedings in regards to some property that “we” owned. She said that in about October 2005, the husband returned from Portugal and whilst she was away from the home shopping, he attended, removed his personal possessions and vacated. She said that since that day she had not spoken directly to him although her son informed her that the husband lived with him for one week in November 2005.
The wife begins proceedings in Portugal
The affidavit of the Mr P sets out that he is a licensed legal practitioner. He said that in November 2005 the wife telephoned him from Australia telling him that her marriage had broken down and that the husband had returned to live in Portugal. Mr P said that he then initiated two proceedings before the Portuguese courts. The first was to file a notice on 24 January 2006 informing the court that the parties had separated. The second application was to “deal with dividing the assets of the parties”.
That last quotation from Mr P is intriguing because it does not sit comfortably with all of the other information provided to me.
Mr P said that in Portugal, the husband responded to the wife’s material by arguing that the funds he had brought to Portugal were amounts that belonged to companies and not money that belonged to the marriage. The husband had not seen that affidavit when he filed his affidavit on 19 April 2007. In paragraph 5 of his affidavit he said:
It was decided by [my wife] and me in 2002/2003 to sell the properties that had been acquired, both in our names and in the two companies names referred to in [my wife’s] first affidavit. This was to facilitate a move to Portugal either on my own or with my wife.
There was certainly no suggestion in the husband’s affidavit of anything similar to what Mr P said that the husband had argued before the Portuguese courts.
No material was filed by the husband to rebut what Mr P said was the Portuguese process nor how the parties may be affected by any outcome in Portugal.
It was agreed by all parties that I should determine the forum issue first. Mr St John of Senior Counsel on behalf of the wife acknowledged that if I ruled that the forum was not appropriate in Australia, then the injunction obviously had to be discharged. Conversely, if I ruled that it was an appropriate forum, then there had to be some arrangements made for a further hearing not only in relation to the injunction but also in relation to what steps this Court should take in relation to a number of matters to which I shall refer.
There are a number of authorities in relation to the question of forum. I have already referred to Voth[2]. The question of the clearly inappropriate forum test was discussed at length. Before looking at that, it is interesting to also note that the High Court said:
There are powerful policy considerations which militate against Australian courts sitting in judgment upon the ability or willingness of the courts of another country to accord justice to the plaintiff in the particular case.
[2] ibid
Under the heading of “Dealing with forum non conveniens applications”, the majority judges in Voth said:
It follows that, subject to the question of onus… the principles to be applied in applications to set aside service and in applications for a stay on inappropriate forum grounds are those stated by Deane J. in Oceanic Sun[3]. In the application of those principles the discussion by Lord Goff in Spiliada[4] of relevant "connecting factors" and "a legitimate personal or juridical advantage" provides valuable assistance.
[3] Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247-8.
[4] Spiliada Maritime Corp v Cansulex Limited [1987] AC 460 at 477-8, 482-4.
In Oceanic Sun, Deane J propounded a test that an Australian court should only decline jurisdiction if it was satisfied that the forum selected was the clearly inappropriate forum.
The forum issue was comprehensively discussed again in the High Court in Henry v Henry[5]. There the High Court reaffirmed the principle that a stay should be granted if the local court was a clearly inappropriate forum. It was also reaffirmed that in Voth, in determining whether the local court was a clearly inappropriate forum, the Spiliada discussion by Lord Goff of relevant “connecting factors” and “a legitimate personal or juridical advantage” provides valuable assistance.
[5] 185 CLR 571
Henry v Henry
In Henry, the husband was an Australian citizen but he left Australia in 1976 and did not return for 17 years at which point, he immediately commenced proceedings in the Family Court of Australia. He had lived in Germany for 10 years and then Switzerland and during his years away, had married. None of his marriage life was spent in Australia.
The husband commenced proceedings in Monaco 10 months before commencing the Australian proceedings. The “proceeding” in Monaco did not of itself lead to a divorce or final property orders but rather was a conciliation process after which, an unsuccessful outcome led to a tribunal hearing.
The proceedings issued by the husband were struck out because the husband failed to appear. The wife then issued proceedings in Monaco for judicial separation and matters became more complex because orders were made including injunctions. That particular proceeding was still on foot when the Australian proceedings were filed by the husband. It should also be noted that the husband proceeded to participate in the Monaco proceedings.
Notwithstanding that the only proceeding in relation to the forum before the High Court was the question of a divorce because the property proceedings were not argued, the High Court took the view that:
If separate proceedings are commenced between husband and wife in different countries, differences in procedure, in available remedies and in the substantive law with respect to marriage and divorce will ordinarily ensure that the proceedings are different in significant respects. However, the proceedings will ordinarily be concerned with the same controversy…the marital relationship lies at the heart of all proceedings between husband and wife with respect to their marital status, especially proceedings for the dissolution of marriage. In such cases, it is the marital relationship itself which is the subject of controversy. And if the marriage is still subsisting, disputes with respect to property, maintenance and the custody of children will ordinarily be but aspects of an underlying controversy with respect to the marital relationship.
One of the issues that the High Court considered was whether or not if both countries have jurisdiction, each would recognise the other’s orders and decrees. The High Court then went on to look at other considerations to include the chronological order in which the proceedings were instituted, the stage that they had reached and the costs that had already been incurred. The High Court however made it clear that the list was not exhaustive. Rather, the High Court said:
The question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved.
The legitimate personal or juridical advantage is relevant but not decisive. I have the evidence of Mr P which is important and relevant. He says:
By Portuguese law, [the husband] is obliged to tell the Judge where all of the money is, so that it can be divided between [the parties]. He refuses to tell the Judge. In Portugal there is no law or procedure to force him to do so.
…
The Court has no power to force [the husband] to do anything or answer any questions, because the assets were taken from Australia…
Whilst in this case there appears to be the same controversy in both courts and they both appear to arise out of the martial relationship. However, there are different processes. I again turn to the evidence of Mr P. He says that in respect of the assets that were “taken from Australia”:
…They are deemed to be Australian assets subject to the authority of the Australian Courts. The Portuguese Court needs to work in conjunction with the Australian Courts to have authority to track and deal with the assets that came from Australia.
[The wife’s] application should be heard in conjunction with the Australian Court. It needs collaboration with the Australian Judge…
Another issue to be taken into account is the question of the point at which the proceedings have reached and the costs that have been incurred. Turning again to the evidence of Mr P, he says:
The Judge has ordered that there be a search for the money.
…
There is no date for the proceedings regarding the division of the assets of the parties to come back before the court. The Court case is likely to last for many years. It is at the judge’s discretion as to when the court will deal with the matter again.
[The husband] says that the assets of the marriage are not in his control. It is now up to the Judge to track down where the money has gone. Potentially there may be no return date before the Court.
As was pointed out in Henry, the list is not exhaustive and it depends on the general circumstances of the case taking into account the true nature and full extent of the issues involved.
There are also issues associated with the division of property from an evidentiary point of view which are largely if not entirely, in Australia. The new Portuguese document refers to the witnesses that the wife relies upon and notes that they are in Australia.
Mr P points out if:
The Judge have (sic) the knowledge about the amount that [the husband] has in the account of [O] Bank and later when the couple divided the assets [the husband] will have to give half of this money to his wife.
This seems to be the view of Mr P about the Portuguese law irrespective of contribution and the factors that we take into account under s 75(2) of the Family Law Act 1975 (Cth) (“the Act”).
Also to be taken into account is the fact that the proceedings in Portugal appear to be of a preliminary inquiry nature only. There appears to be a long way to go before there will be any division of property. That view comes about from Annexure D to the wife’s affidavit filed 30 March 2007 and also from the new Portuguese document both of which have been translated for the court proceedings in Australia. It is to be noted that the wife purports to be bringing an action for “inventory of the Couple’s Common Assets. On page 3 of the document, presumably after pursuing what assets there are, the wife may then “apply” for legal action for division of assets. It is in this latter application that the document refers to the fact that the wife is “going to lodge”. On page 6 of the same document, the wife refers to the fact that prior to the legal action for division of assets, the Court proceed with an inventory of the identified assets. This is somewhat inconsistent with paragraph 13 of the affidavit of Mr P but the rest of the material tends to suggest that what the wife has embarked upon is a process of oral examination or discovery.
In the new Portuguese document, the wife seeks a different set of orders. At the end of the document she seeks a day and time for a reconciliation attempt. These may very well lead on to a property proceeding application.
Perhaps unfortunately, I do not have an expert’s view about what all of this means but it is important to note that the onus in this application is on the husband. He has not satisfied me about what the proceedings in Portugal are really all about. I am not able to say that these proceedings simply all arise out of the one controversy.
Oppressive and vexatious
The clearly inappropriate forum test refers to the fact that to not grant a stay would be oppressive or vexatious. Those words are clarified in the judgment.
Summary
On all of the evidence, I am satisfied that to allow the proceedings to continue in the Family Court of Australia would not be oppressive or vexatious and that the Family Court of Australia is not clearly an inappropriate forum. Having regard to the matters I have mentioned, particularly the evidence of Mr P, the Portuguese court is simply investigating issues preparatory to giving the asset division responsibility back to the Australian courts. As such, the continuation of the proceedings in the Family Court of Australia are not seriously and unfairly burdensome, prejudicial or likely to create damage for the husband. Neither is it vexatious.
Accordingly, the husband’s application for a stay is dismissed.
I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin
Associate:
Date: 18 May 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as PORTO & PORTO
2
1