Porto and Porto (No 2)

[2011] FamCA 912

FAMILY COURT OF AUSTRALIA

PORTO & PORTO (NO 2) [2011] FamCA 912

FAMILY LAW – amendment of orders – costs.

APPLICANT: Mr Porto

RESPONDENT: Ms Porto

FILE NUMBER: MLC 3219 of 2007

DATE DELIVERED: 18 November 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 18 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Porto in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Puckey

SOLICITOR FOR THE RESPONDENT: Holding Redlich

Orders

1. That paragraph 1 of my orders made on 17 December 2010 shall be amended so that in lieu of “6 December 2011” it shall read “17 November 2012”, and the wife’s solicitor shall forthwith arrange service of a sealed copy of this order on the Marshal of the Family Court of Australia and the Australian Federal Police.

2. That the husband shall pay the wife’s costs of this application; such costs to be taxed.

3. That the Reasons for Judgment given this day shall be transcribed and a copy sent to each party.

4. That otherwise the wife’s application filed 3 November 2011 shall be dismissed.

5. That the preparation of this order shall be expedited.

IT IS NOTED that publication of this judgment under the pseudonym Porto & Porto has been approved by the Chief Justice 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

Mr Porto

Applicant

And

Ms Porto

Respondent

REASONS FOR JUDGMENT

1. On 17 December, after a five day hearing and long involvement with protracted interim proceedings, I made orders for Mr Porto to pay Mrs Porto a sum of $2,096,087, having found that he had hidden most of the family wealth in European Country 1 and/or European Country 2.  In paragraph 1 of those orders I restrained Mr Porto from leaving Australia, in the following terms:

   Until 5 pm on 6 December 2011, the husband, [Mr Porto], born 26 January 1947 shall be and is hereby restrained from leaving the Commonwealth of Australia and that his name shall be placed on the airport watch list, and it is requested that the Marshal of the Family Court of Australia and the Australian Federal Police will shall give effect to this order, and it is noted that the husband may hold both Portuguese and Australian passports.

2. My reasoning for that order was set out in paragraphs 125 to 148 of my Reasons for Judgment dated 8 December 2010.  It is apparent that it was agreed that I had the power to make the order.  Having determined that I would exercise my discretion in that direction, at paragraph 148, I had considered the appropriate length of the period of restraint.  I said:

   In this case I propose 12 months from the date of the orders. I am conscious of the enormous expense of these proceedings so far, and that the wife should not be forced back to Court too soon, taking into account how slowly matters have proceeded this far in [European Country 1] and/or [European Country 2], and how difficult it will be for her to pursue the monies overseas if [Mr Porto] does not comply with the orders.  Of course, if he does comply he should have liberty to apply to bring the matter before the Court for the restraint to be lifted.  Equally, [Mrs] Porto may apply to extend the restraint beyond 12 months.

3. Ms Porto has now applied to extend the restraint for a further 12 months.  Her application was filed on 3 November this year, and is supported by an affidavit filed the same day.  Mr Porto filed a response on 11 November 2011, and an affidavit on the same day.  He asks for her application to be dismissed and that Mrs Porto pay his costs of the application. 

4. This morning, both parties have agreed that the application should proceed to conclusion.  Both have agreed that there need not be any cross-examination.  Both have made submissions.  Mr Porto was representing himself and Mrs Porto was represented by counsel.

5. The basis of Mrs Porto’s application is straightforward.  On 13 January 2011, Mr Porto filed a Notice of Appeal against the orders that I had made in December 2010.  He pursued the appeal processes and procedures until late October this year.  On 21 October 2011, Ms Porto’s solicitor was notified that Mr Porto had filed a Notice of Discontinuance of the Appeal.  Ms Porto says that, until there were final orders, without a pending appeal, she could not pursue the necessary steps to trace the missing funds in European Country 2.

6. Annexed to her affidavit is a legal advice from European Country 2 lawyers, B Legal, to the effect that the civil proceeding whereby this Court’s judgment could be recognised and executed in European Country 2, could not occur while there was an appeal on foot.  The legal advice also set out why that recognition was important as the step by which the next level of European Country 2 inquiries to trace the money could be facilitated: that is, steps going beyond the preliminary steps which helped gather information for the purposes of the trial.  It was certainly enough at that point to satisfy me that the monies had moved from Australia to European Country 1 to European Country 2, but was insufficient at that point to finally trace the monies.

7. Mr Porto resists the application, saying – well first repeating – that there are no monies in European Country 2, that the wife has lied and he cannot comply with the orders because there are no monies.  To state the obvious, that claim by him is contrary to binding findings that I have made.  He says that the wife’s lawyers have, in any event, been pursuing the wrong process, in that the European Country 1 courts can make investigations in European Country 2.

8. I note that the material in his affidavit as to why the wife’s legal advice is wrong is based primarily on his own assertions, rather than upon any independent material.  The only purportedly independent material is a document marked “MCP6”.  In fact, it does not say what he says it says, or it is certainly not clear on the face of it. 

9. What is clear is that Mr Porto has always wanted the European Country 1 court to handle the property matters between the parties.  It has nevertheless long since been determined in this Court that the property case would proceed here.  It is now entirely reasonable for the wife to want to register the orders received here in her favour in European Country 2.

10. Mr Porto claims in his material, that since Mrs Porto has received the Notice of Discontinuance, “She has done nothing in response to this issue”.  In fact, she filed this application within less than two weeks of receiving his Notice of Discontinuance, so that is really not a sensible claim on his part. 

11. Mr Porto questions the Court’s power to restrain his departure.  As Mr Puckey for Mrs Porto quite rightly points out, that is a matter already determined and is not open for further discussion or consideration.

12. Mr Porto complains that when Mrs Porto says he has made no effort to sell the $400,000 property in European Country 1 that he quite simply could not.  It is in joint names, and he says frozen by court orders in European Country 1.  I make two observations about that.  First, he suggests nothing to tell me that he has in any way sought her consent to a sale, or sought her consent to having the orders lifted in European Country 1 if there are orders there that preclude the sale.  Secondly, even if sold, it would only realise a portion of the sum owing to her.

13. The situation, in my view, is clear.  I always envisaged that either party could return to alter this particular restraint, depending on alternative circumstances.  I am satisfied on Mrs Porto’s material that she simply could not pursue the requisite investigations in European Country 2 without registering the orders, the fruits of the parties’ extensive litigation in Australia.  She could not register the orders while the husband’s appeal was on foot.  It was on foot, effectively, for close to 11 of the 12 months of the restraint, or at least for something like 10½ months of the restraint imposed in December last year.

14. She has immediately brought the matter back before the Court.  She seeks an extension of 12 months now to pursue the tracing of the monies in European Country 2.  The reasons that I determined 12 months was the fair period when I made the previous orders remain.  I do not propose an extension until 6 December, as sought by her.  It should be 12 months from today, so that it is a period that would expire on 17 November next year.  In a moment I shall pronounce the amending order accordingly.

15. I first want to note though, that the liberty to apply in paragraph 13 of my Orders of 17 December still pertains, as does the reasoning in paragraph 148 of my judgment as to either party being able to return to the Court, depending on any future circumstances.  The order I propose is as follows:

    That paragraph 1 of my orders made on 17 December 2010 shall be amended so that in lieu of “6 December 2011” it shall read “17 November 2012”, and the wife’s solicitor shall forthwith arrange service of a sealed copy of this order on the Marshal of the Family Court of Australia and the Australian Federal Police.

COSTS

1. I do propose ordering costs against Mr Porto in this case.  I wouldn’t normally express it like this, but Mr Puckey made such succinct submissions in such a short matter that I am going to simply say for the reasons set out by him, I am going to exercise my discretion in favour of the wife.  Mr Porto’s only response was that he has no means to pay.  I have made my findings about that in the past, and about the wife’s capacity to pay, and I agree with Mr Puckey that the costs should be taxed with other costs.

2. So I am going to add an order which will be that the husband pay the wife’s costs of this application, such costs to be taxed.  The reasons for judgment given this day shall be transcribed and a copy sent to each party.  The order should be expedited so that there is no time lost; so it will be sent out today.

3. Otherwise the wife’s application filed 3 November 2011 shall be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 18 November 2011.

Associate:

Date:  18 November 2011