Porto and Porto (No 2)

[2009] FamCA 973

FAMILY COURT OF AUSTRALIA

PORTO & PORTO (NO. 2) [2009] FamCA 973

FAMILY LAW – PRACTICE AND PROCEDURE – Case management

APPLICANT: Ms Porto

RESPONDENT: Mr Porto

FILE NUMBER: MLC 3219 of 2007

DATE DELIVERED: 7 October 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 7 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ross

SOLICITOR FOR THE APPLICANT: Westminster Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lipschutz

SOLICITOR FOR THE RESPONDENT: Berry Family Law

Orders

1. That the trial date of 30 November 2009 shall be and is hereby vacated.

2. That Registrar Field is requested to liaise with the Federal Attorney General’s Department to ensure that she or the appropriate officer in the Department contacts the relevant Spanish authorities as soon as possible to emphasise the urgency of the request for information, and the need for it to be received by 21 December 2009.

3. That Registrar Field is requested to hold a telephone mention with the parties’ legal representatives on a date to be advised in late January 2010.

4. That a transcript of my reasons given this day shall be prepared and kept on the court file and made available to the parties.

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 case is fixed for a final hearing before me for five days starting 30 November 2009.  The solicitor for the wife has asked that the date be vacated.  The solicitor for the husband has asked that the date be retained. 

2. The case is complex.  The history is complex.  I have dealt with it over an extended period of time.  I have referred to the pertinent parts of the property history many times. 

3. The briefest summary is that the wife has consistently claimed that some $7 million in joint funds went offshore to Portugal.  The husband agrees that millions of dollars went offshore but does not agree that it was seven million. The short upshot of it is the husband’s claim that he gave the many millions of dollars to a man with a very common Spanish surname and he obtained no receipt.  He had no contact details for him, he has no documentation and, according to him, the money has been completely lost. 

4. The wife does not believe that is the case and has produced some strong prima facie evidence - I cannot put it more highly than that because I have not heard the evidence - but strong prima facie evidence in the form of affidavits by the parties’ adult children in which they have set out that their father has made it very clear to them that the money does in fact still exist but is secreted from the wife.

5. In the course of the long period that I have been involved in the management of this case, the wife and her legal representatives have been genuinely endeavouring to locate the moneys and they have encountered a number of obstacles.

6. The issue today is that some substantial time ago I made an order which precluded the husband from leaving Australia and it is not surprising that he is pressing for the case to be heard, so that he is free to leave the country again.

7. From the wife’s point of view, it is essential that he not be free to leave the country at this point.  It is germane to her case that if he leaves the country, he will simply leave in order to have access to and to move the moneys and further ensure that she will never be able to obtain them, even if she has a court order in her favour.

8. I am conscious of trying to balance the fairness and the justice to both parties.  In trying to do that, I agree with submissions made by Mr Ross for the wife that I must bear in mind that if the trial proceeds before the wife has been able to fully exhaust the inquiries that she is currently endeavouring to conduct in Spain, then any orders that I make in her favour could effectively be defeated.  She is likely to be left with orders that are quite worthless to her in terms of enforcement.

9. I also accept Mr Ross’ submission that when I look at the prejudice to the husband, I cannot overlook - although his solicitor has asked me to stop emphasising it – but I cannot overlook that there was something like a year virtually lost because the husband simply and obstinately refused to sign requisite Powers of Attorney to Portuguese authorities.  Had he done so, it would have hastened the process of obtaining information as sought by the wife.

10. I made an order in June 2008 for the Attorney-General’s Department to use a particular international law mechanism to obtain information from the Portuguese authorities.  It took many months but the information or some information was obtained. It became obvious from that that there was information required from Spanish authorities because moneys had been moved from Portugal to Spain. 

11. I made orders in March of this year, again using the same international law procedures so that the Attorney-General’s Department could then obtain information from the Spanish authorities.  I am concerned that there was a delay from March until August of this year before the requisite documents were sent to Spain.  That is something that Mr Lipshutz for the husband has quite understandably emphasised.

12. In terms of the delay between July and August, I cannot visit that at all on the wife or her solicitors because, in view of the unusual nature of the international request, there was frustrating “toing and froing” between the Attorney-General’s Department and this court as to who should stamp what and who should be responsible for which aspect of what document.  However, between March and July, there certainly was a delay.  Mr Lipshutz has very fairly said that he is not suggesting that the wife was deliberately delaying.  The delay does lie on her side of the bar table but the explanation for it is one that I view with some sympathy. 

13. Mr Ross has explained that, not only were the documents complex to prepare, but there was also a great deal of translation involved.  The translation, of course, attracts fees.  The wife, I have heard throughout these proceedings, works part time as a cleaner and is impecunious.  I have made orders previously for her to obtain the benefit of certain funds that were otherwise held on behalf of the parties.  Apparently the fund where the moneys were held, collapsed.  No money was forthcoming and it was ultimately only in July or August that the moneys were provided.  So there has been problem upon problem.

14. In any event, the documents were finally only sent in August and I am satisfied that more months are required before an answer can be expected.  That is the experience in relation to the Portuguese documents and I accept from the bar table that that is counsel’s advice as to how these matters generally proceed.

15. I am satisfied that further delay in not the most desirable course. I am conscious of the position of the husband but this is a very unusual case and I cannot see that justice can properly be done overall, as required under s 79 of the Family Law Act, if I push this case on at such a delicate time in the wife’s efforts to trace these very, very substantial moneys that the husband simply claims he has lost.

16. Mr Lipshutz made a sort of fallback submission that it was too early to vacate the November dates because, with a little bit of prompting by the courts, the Spanish authorities might provide the requisite information.  I was attracted to that submission but, again on balance, if I look at the timing, I am not satisfied that the information could be received once letters are sent in both directions and given the experience of how slowly the court’s letters have been responded to before now, and bearing in mind that if information were received, it is likely to prompt the wife’s side to make further inquiries such that I do not think it is practical to maintain the current trial date. 

17. As I said in the course of submissions, I need to balance the fact too that there are many litigants who want court time and I must use it as effectively and efficiently as possible so that as soon as this case is ready, for example, I will be able to fit it in very quickly.  The November trial date can do doubt be used by other people.

18. I will vacate the November trial date.  I will request the Registrar to send an urgent follow up letter to the authorities in Spain.  I do not want to give the impression to the wife’s legal representatives that there can be any undue delay or that they can afford to lose any more months because I am extending them this further opportunity, but the opportunities do have to be finite and there is a point at which they will be in a weaker position to talk about “clean hands” if they have allowed months to pass without any action.

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

Associate: 

Date:  7 October 2009