Porto and Porto (No. 2)

[2010] FamCA 797

FAMILY COURT OF AUSTRALIA

PORTO & PORTO (NO. 2) [2010] FamCA 797

FAMILY LAW – PROPERTY – Moneys “lost” overseas – Release of information by foreign banks

APPLICANT: Ms Porto

RESPONDENT: Mr Porto

FILE NUMBER: MLC 3219 of 2007

DATE DELIVERED: 13 August 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 13 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Costello

SOLICITOR FOR THE APPLICANT: Westminster Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. That paragraphs 1 to 4 and 6 of the husband’s application in a case filed 20 July 2010 shall be dismissed.

2. That all existing applications shall be adjourned to a 5 day hearing before me starting on Monday, 8 November 2010 at 10:00am.

3. That each party shall file and serve all affidavits upon which they rely and an up to date Financial Statement by 4:00pm on 15 October 2010.

4. That Registrar Field is requested to hold a telephone mention on a date to be advised to the parties if possible in the week of 18 October 2010 to ensure the case is ready for trial.

5. That by 3 November 2010 at 4:00pm each party shall file and serve:

   (a)A list of witnesses;

   (b)A precise minute of orders sought; and

   (c)An outline of argument.

6. Within 14 days of the date of these Orders, the Husband shall, in writing, directly authorise the following banks to produce all statements, notes and correspondence regarding the accounts held in his name, showing all transactions and communications from the date the accounts were opened to the present date:

(a)     Banco Santander Central Hispano S.A (Banco Santander) – including, but not limited to, account numbers …960 and …185.

(b)     Caja de Ahorros y Pensiones de Barcelona S.A. (La Caixa) – including, but not limited to, account number …097.

(c)     Banca Bilbao Vizcaya Argentaria S.A. (BBVA)

(d)     Any other banks in Spain in which the Husband has or has had an account in his name, whether or not jointly held with another person.

1. The requests by the husband in writing pursuant to the preceding order shall be made in the following form and shall be signed by the husband in the presence of the Spanish Consul or Mr. Michael Bula, International Notary at a time and a place fixed by the Spanish Consul or Mr Bula, and the husband shall provide to the Spanish Consul or Mr Bula his passport number and Portuguese identity card number and show the Spanish Consul or Mr Bula (as applicable) his Victorian driver’s licence, Portuguese identity card and any other document requested of him by the Spanish Consul or Mr Bula (as applicable):

Request to Banco Santander:

Yo, […], de nacionalidad ___________, con domicilio ______________, y pasaporte nº _____________ y nº de identidad ________________, AUTORIZO a Banco Santander Central Hispano a facilitar toda la información sobre las cuentas bancarias abiertas o que hayan sido abiertas en esta entidad en las que conste o haya constando yo mismo como titular o co-titular, y en particular sobre las cuentas números […]960 y […]185, incluyendo en dicha información todos los movimientos de las cuentas bancarias, transferencias recibidas o emitidas, retiradas en efectivo, saldos, extractos y en general toda la información al respecto, a favor de WESTMINSTER LAWYERS, y a cualquier persona que éstos designen o tengan por conveniente. 

I [the husband], with nationality ______________, domicile at ______________, Passport No. ____________, and Identity Card No. ___________ AUTHORIZE Banco Santander Central Hispano to release information on any bank account open or that it has been opened at this bank under my name or as a co-tenant, and in particular regarding accounts number […]960 and number […]185, including in this information all the movements, transfers made or received, withdrawals, statements, balances, and in general all the information in this regard in favour of WESTMINSTER LAWYERS, who shall be entitled to delegate this faculty to whom they may see fit.

Request to La Caixa:

Yo, [...], de nacionalidad ___________, con domicilio ______________, y pasaporte nº _____________ y nº de identidad ________________, AUTORIZO a Caja de Ahorros y Pensiones de Barcelona - La Caixa a facilitar toda la información sobre las cuentas bancarias abiertas o que hayan sido abiertas en esta entidad en las que conste o haya constando yo mismo como titular o co-titular, y en particular sobre la cuenta número […]097, incluyendo en dicha información todos los movimientos de las cuentas bancarias, transferencias recibidas o emitidas, retiradas en efectivo, saldos, extractos y en general toda la información al respecto, a favor de WESTMINSTER LAWYERS, y a cualquier persona que éstos designen o tengan por conveniente.

I [the husband], with nationality ______________, domicile at ______________, Passport No. ____________, and Identity Card No. ___________ AUTHORIZE Caja de Ahorros y Pensiones de Barcelona - La Caixa to release information on any bank account that is open or it has been opened at this bank under my name or as a co-tenant, and in particular regarding account number […]097, including in this information all the movements, transfers made or received, withdrawals, statements, balances, and in general all the information in this regard in favour of WESTMINSTER LAWYERS, who shall be entitled to delegate this faculty to whom they may see fit.

Request to BBVA:

Yo, […], de nacionalidad ___________, con domicilio ______________, y pasaporte nº _____________ y nº de identidad ________________, AUTORIZO a Banco Bilbao Vizcaya Argentaria – BBVA a facilitar toda la información sobre las cuentas bancarias abiertas o que hayan sido abiertas en esta entidad en las que conste o haya constando yo mismo como titular o co-titular,  incluyendo en dicha información todos los movimientos de las cuentas bancarias, transferencias recibidas o emitidas, retiradas en efectivo, saldos, extractos y en general toda la información al respecto, a favor de WESTMINSTER LAWYERS, y a cualquier persona que éstos designen o tengan por conveniente. 

I [the husband], with nationality ______________, domicile at ______________, Passport No. ____________, and Identity Card No. ___________ AUTHORIZE Banco Bilbao Vizcaya Argentaria - BBVA to release information on any bank account that is open or it has been opened at this bank under my name or as a co-tenant,  including in this information all the movements, transfers made or received, withdrawals, statements, balances, and in general all the information in this regard in favour of WESTMINSTER LAWYERS, who shall be entitled to delegate this faculty to whom they may see fit.

1. That in the event that the husband fails or refuses to fully comply with signing all documents required under paragraphs 6 and 7 of these orders, a Registrar of the Family Court of Australia is requested to do so pursuant to s106A of the Family Law Act 1975.

2. That a costs certificate be granted to the wife pursuant to s10(3) of the Federal Proceedings (Costs) Act 1981 in relation to the day’s proceedings on 26 July 2010 which were discontinued as the court was unable to arrange a Portuguese interpreter.

3. That the reasons given by me this day shall be expedited and transcribed and retained on the court file.

4. That all costs of this day shall be reserved.

5. That otherwise the wife’s amended application filed 22 July 2010 is dismissed.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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 longstanding case was last before me on 26 July 2010.  I adjourned it until today and allowed some time for the wife to file and serve responding material to the husband’s application that was filed only very shortly before that hearing.  I made orders, too, seeking the release of information from specified Spanish banks.

2. Now, in reality, I would not have adjourned the case that day for those reasons alone.  It was primarily adjourned because the Court arranged interpreter had failed to attend, and another interpreter could not be arranged.  I emphasise that at the outset, because Ms Costello will remind me shortly to deal with an application for a certificate.  The wife’s costs were lost through no fault of her own.  Nor was it the husband’s fault.  It was that the Court was not able to have the matter proceed.

3. The husband has lived in this country for many years.  He does speak English and today he has chosen to speak to me directly in English.  However he does prefer to use a Portuguese interpreter, or at least to have one with him in the courtroom.  As the essence of the applications before me involve very high stakes for him, I have had no difficulty with that. 

4. I do not propose to repeat the very long history of this case.  It is easy enough to set out again that, for several years now, the wife has endeavoured to locate the millions of dollars that the husband agreed he took offshore to Portugal and lost, at the end of the parties’ long marriage.

5. During these 3½ years, the husband has been held in Australia by orders of this Court, when he has consistently wanted to return to Portugal.  And during these 3½ years, many efforts have been made by the wife, supported by many Court orders, to trace moneys through Portuguese and later Spanish bank accounts.  Throughout, the husband has often been uncooperative when it has come to signing authorities to further that tracing exercise, and in December 2009, I sentenced him to three months’ imprisonment for a contempt of Court in that regard.

6. Today, the husband has before me an Application in a Case filed on 20 July 2010.  He seeks a number of orders:

   1.That paragraph 2 of the Orders by this Honourable court made the 22^nd march 2007 and that paragraphs 1 and 3 of the Orders made by this honourable Court on the 8^th June be discharged.

   2.That the Husband be entitled to obtain a Portuguese Passport.

   3.That the husband be permitted to travel from Australia to Europe.

   4.Within 14 days from the date of this Application the Wife must disclose the whereabouts of the 18,000 Euros and the $45,000 left in the joint Westpac account as of July 2005.

   5.The Honourable Court fix a date for trial.

   6.such other Order as the Court shall consider appropriate.

7. Part of his application refers to paragraph 2 of the Orders of 22 March 2007.  That order is the restraint against him leaving Australia, pursuant to which his name was placed on the Watch List.  He also refers to paragraphs 1 and 3 of Orders of 8 June 2007.  Those paragraphs relate to an extension of the restraint, an adjournment to Mushin J (which is irrelevant for today’s purposes) and that the husband had to deliver his Australian and Portuguese passports to the Registrar.

8. His application is supported by his affidavit filed 20 July 2010.  In short, he says he has, as requested, provided the wife with information about an account at the Millennium Bank in Portugal.  He refers to, what is on a scale of things a very small dispute over €18,000 that he alleges is ongoing between his wife’s brother and himself in Portugal, and a legal case over in relation to it that he says cannot proceed in his absence.  Today he tells me that he also wants to return to attend to a property, and to some financial matters to do with his family, and to see family. 

9. In his affidavit, the husband says that the wife has falsified her position to this Court in saying that she cannot obtain information about the moneys in Portugal.  And, he sets out that the wife has issued property proceedings in Portugal, that she did so before she sought property orders in this Court, and that in June 2009 she commenced a counteraction against him in the High Court of Appeal in Lisbon, in relation to matrimonial matters.

10. Overall, his case is first that the wife is purposely causing delay in the Portuguese proceedings by preventing his return to that country, and secondly, it is inappropriate for her to seek the jurisdiction of this Court when she also seeks the jurisdiction of the Portuguese Court.  He says that he can borrow money from his family for a trip to Portugal to resolve the legal issues.  He simply needs the return of his passport or passports and the lifting of the Watch List order.  He says he shall return to Australia for any trial.

11. Although advised today that I propose listing an early trial date for this matter, the husband says that he would still like to go away in the meantime, and that there is no reason to disbelieve him when he says he will return.

12. On 3 August this year, the wife filed a response to the husband’s application.  She seeks that the property case now be fixed for trial.  As I have indicated, there is now a consensus in that respect.  She also seeks the husband pay her costs of this application.  She swore an affidavit filed on 3 August 2010.  In it she set out the history of her attempts to trace what she believes is over $Aus7.5 million, but on any view of the material is at the very least $Aus5 million, that has gone through various accounts in Portugal and Spain, but disappeared.

13. I have not yet heard all the evidence, but in the course of more than three years, I have been involved in attempts to trace the money, via requests between courts, via orders to banks, via various authorities and powers of attorney as sought by banks, and via intergovernmental requests.  Between all those efforts, and the husband’s refusal to sign various documents – to the point of contempt and imprisonment – I am in a position, even without all the evidence tested, to express at least the concern that although the wife has steadfastly attempted to find the money, the husband appears not to have done so.

14. The wife also sets out the history in relation to the Portuguese proceedings.  She says she has not started any proceedings in Portugal in relation to a property settlement since the divorce proceedings that she started in about 2005 or 2006.  In the proceedings in the Court of Appeal in Lisbon, referred to by the husband, whereby he suggests she has as recently as last year taken a role, she points out that she is the defendant to the husband’s application in those proceedings.  She believes the proceedings relate to divorce, not property.  More specifically, she believes they relate to the Portuguese Court’s jurisdiction to grant the divorce.  That does seem to be supported from the document annexed to the husband’s affidavit, but I have to say, I cannot be absolutely certain from the translation.

15. Ms Costello has quite rightly submitted that although the husband has throughout the life of the proceedings in this Court, been keen for the case to be dealt with in Portugal and not Australia, the issue has long since been decided by Cronin J, on 18 May 2007.  His Honour gave reasons that day, dismissing the husband’s application to stay these proceedings on the basis that this court was a clearly inappropriate forum.  His Honour took into account that the wife had initiated proceedings before then in Portugal.  It is thus easy for me to say that I cannot and will not change his Honour’s decision.  Nothing in the husband’s current material, including any counteraction filed by the wife in the Portuguese action apparently pursued by him, persuades me that I am able to or should meddle with Cronin J’s orders.

16. Finally, in her material the wife set out her desperate financial circumstances, the husband’s failure to provide information in relation to bank accounts and statements, and her concern that given his failure to comply with Australian Court orders, if he is allowed to return to Portugal or to leave Australia, the husband is unlikely to return to Australia. 

17. The wife is on strong ground.  There is, albeit untested at this point, evidence from the parties’ children to the effect that the husband has made it clear that he has “lost” the money somewhere in Portugal.  That, combined with his account of how he lost the money, which put at its highest sets off alarms as to its truth, coupled with the intransigence he has shown when it has come to tracking the money, and his consistent desire to pursue his litigation in Portugal and not in Australia – combined – raises the very substantial likelihood that if he leaves Australia before this case is heard, he shall not return.

18. For those reasons, I think it strikes a fair balance to fix the trial date, as I propose, on 8 November.  It keeps the husband in Australia, but only for a short time.  The wife’s attempt, so far unfruitful, to track down the money, can at least be continued by her at this stage.  The case should then proceed, and if she needs, she can then continue any tracking for enforcement purposes. 

19. Counsel for the wife has made it clear that between now and the hearing, the wife requires to continue her efforts to obtain information from Spain, by having a particular authority signed by the husband, in accordance with the advice of her Spanish lawyer, advice which is on affidavit.  That is entirely reasonable.  Although I have made it clear in the last few appearances, that her efforts at some point need to be finite, I am satisfied now that she is not asking for the trial to be delayed, simply to have this opportunity between now and the trial.

20. I want to reiterate that it has now been 3½ years’ since the case started before me.  I propose allowing the next few months before trial for the wife to take these last steps.  To that end I shall facilitate via the orders she seeks.  Beyond that, the trial must go ahead, because the time for her to keep making those efforts simply has to be finite.  By then, it will be 3¾ years, heading to four years.  That is enough.

21. As to the orders the wife seeks today, they are specifically for the husband to sign particular Spanish authorities.  I am satisfied, as I have said, that there is a good basis for that order to be made.  Ms Costello has told me today that there will not be a contempt application between now and hearing, but she still wants this order in the hope that the husband might see it is to his advantage as well as the wife’s, to take whatever steps are necessary to trace the money.  She wants the Order backed by a provision that if he does not sign it, the Registrar shall sign it on his behalf. 

22. Even though in the past a signature by the Registrar instead of the party has not been successful, I am satisfied that it is certainly worth a try at this late stage when the options are narrowing. 

23. The husband says he has signed enough, and that there has been enough documents.  I would be sympathetic to his argument, but he is well aware of the difficulties in pursuing these inquiries internationally.  If he is showing good faith in this matter, he would be as keen as the wife to try whatever was necessary to find the money.

24. The orders I propose are as follows:

    1.That paragraphs 1 to 4 and 6 of the husband’s application in a case filed 20 July 2010 shall be dismissed.

    2.That all existing applications shall be adjourned to a 5 day hearing before me starting on Monday, 8 November 2010 at 10:00am.

    3.That each party shall file and serve all affidavits upon which they rely and an up to date Financial Statement by 4:00pm on 15 October 2010.

    4.That Registrar Field is requested to hold a telephone mention on a date to be advised to the parties if possible in the week of 18 October 2010 to ensure the case is ready for trial.

    5.That by 3 November 2010 at 4:00pm each party shall file and serve:

    (a)A list of witnesses;

    (b)A precise minute of orders sought; and

    (c)An outline of argument.

    6.Within 14 days of the date of these Orders, the Husband shall, in writing, directly authorise the following banks to produce all statements, notes and correspondence regarding the accounts held in his name, showing all transactions and communications from the date the accounts were opened to the present date:

(a)   Banco Santander Central Hispano S.A (Banco Santander) – including, but not limited to, account numbers …960 and …185.

(b)  Caja de Ahorros y Pensiones de Barcelona S.A. (La Caixa) – including, but not limited to, account number …097.

(c)  Banca Bilbao Vizcaya Argentaria S.A. (BBVA)

(d)  Any other banks in Spain in which the Husband has or has had an account in his name, whether or not jointly held with another person.

7.        The requests by the husband in writing pursuant to the preceding order shall be made in the following form and shall be signed by the husband in the presence of the Spanish Consul or Mr. Michael Bula, International Notary at a time and a place fixed by the Spanish Consul or Mr Bula, and the husband shall provide to the Spanish Consul or Mr Bula his passport number and Portuguese identity card number and show the Spanish Consul or Mr Bula (as applicable) his Victorian driver’s licence, Portuguese identity card and any other document requested of him by the Spanish Consul or Mr Bula (as applicable):

Request to Banco Santander:

Yo, […], de nacionalidad ___________, con domicilio ______________, y pasaporte nº _____________ y nº de identidad ________________, AUTORIZO a Banco Santander Central Hispano a facilitar toda la información sobre las cuentas bancarias abiertas o que hayan sido abiertas en esta entidad en las que conste o haya constando yo mismo como titular o co-titular, y en particular sobre las cuentas números […]960 y […]185, incluyendo en dicha información todos los movimientos de las cuentas bancarias, transferencias recibidas o emitidas, retiradas en efectivo, saldos, extractos y en general toda la información al respecto, a favor de WESTMINSTER LAWYERS, y a cualquier persona que éstos designen o tengan por conveniente. 

I [the husband], with nationality ______________, domicile at ______________, Passport No. ____________, and Identity Card No. ___________ AUTHORIZE Banco Santander Central Hispano to release information on any bank account open or that it has been opened at this bank under my name or as a co-tenant, and in particular regarding accounts number […]960 and number […]185, including in this information all the movements, transfers made or received, withdrawals, statements, balances, and in general all the information in this regard in favour of WESTMINSTER LAWYERS, who shall be entitled to delegate this faculty to whom they may see fit.

Request to La Caixa:

Yo, [...], de nacionalidad ___________, con domicilio ______________, y pasaporte nº _____________ y nº de identidad ________________, AUTORIZO a Caja de Ahorros y Pensiones de Barcelona - La Caixa a facilitar toda la información sobre las cuentas bancarias abiertas o que hayan sido abiertas en esta entidad en las que conste o haya constando yo mismo como titular o co-titular, y en particular sobre la cuenta número […]097, incluyendo en dicha información todos los movimientos de las cuentas bancarias, transferencias recibidas o emitidas, retiradas en efectivo, saldos, extractos y en general toda la información al respecto, a favor de WESTMINSTER LAWYERS, y a cualquier persona que éstos designen o tengan por conveniente.

I [the husband], with nationality ______________, domicile at ______________, Passport No. ____________, and Identity Card No. ___________ AUTHORIZE Caja de Ahorros y Pensiones de Barcelona - La Caixa to release information on any bank account that is open or it has been opened at this bank under my name or as a co-tenant, and in particular regarding account number […]097, including in this information all the movements, transfers made or received, withdrawals, statements, balances, and in general all the information in this regard in favour of WESTMINSTER LAWYERS, who shall be entitled to delegate this faculty to whom they may see fit.

Request to BBVA:

Yo, […], de nacionalidad ___________, con domicilio ______________, y pasaporte nº _____________ y nº de identidad ________________, AUTORIZO a Banco Bilbao Vizcaya Argentaria – BBVA a facilitar toda la información sobre las cuentas bancarias abiertas o que hayan sido abiertas en esta entidad en las que conste o haya constando yo mismo como titular o co-titular,  incluyendo en dicha información todos los movimientos de las cuentas bancarias, transferencias recibidas o emitidas, retiradas en efectivo, saldos, extractos y en general toda la información al respecto, a favor de WESTMINSTER LAWYERS, y a cualquier persona que éstos designen o tengan por conveniente. 

I [the husband], with nationality ______________, domicile at ______________, Passport No. ____________, and Identity Card No. ___________ AUTHORIZE Banco Bilbao Vizcaya Argentaria - BBVA to release information on any bank account that is open or it has been opened at this bank under my name or as a co-tenant,  including in this information all the movements, transfers made or received, withdrawals, statements, balances, and in general all the information in this regard in favour of WESTMINSTER LAWYERS, who shall be entitled to delegate this faculty to whom they may see fit.

8.That in the event that the husband fails or refuses to fully comply with signing all documents required under paragraphs 6 and 7 of these orders, a Registrar of the Family Court of Australia is requested to do so pursuant to s106A of the Family Law Act 1975.

9.That a costs certificate be granted to the wife pursuant to s10(3) of the Federal Proceedings (Costs) Act 1981 in relation to the day’s proceedings on 26 July 2010 which were discontinued as the court was unable to arrange a Portuguese interpreter.

10.That the reasons given by me this day shall be expedited and transcribed and retained on the court file.

11.That all costs of this day shall be reserved.

12.That otherwise the wife’s amended application filed 22 July 2010 is dismissed.

IT IS CERTIFIED

13.Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

I certify that the preceding seventeen (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate:  Alison Power

Date:  13 August 2010