Porto and Porto (No. 2)

[2008] FamCA 240

FAMILY COURT OF AUSTRALIA

PORTO & PORTO (NO. 2) [2008] FamCA 240

FAMILY LAW – CONTEMPT – Contravention of Court order

Family Law Act 1975 (Cth)

APPLICANT: Mrs Porto

RESPONDENT: Mr Porto

FILE NUMBER: MLC 3219 of 2007

DATE DELIVERED: 20 March 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 20 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr T.J. Puckey

SOLICITOR FOR THE APPLICANT: Westminster Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lipschultz

SOLICITOR FOR THE RESPONDENT: Berry Family Law

Orders

1. That the wife shall have liberty to utilise the Procuração signed by the husband on 19 March 2008 (with a copy of the orders of this Court made 18 March 2008 attached and translated into Portuguese) to secure production of documents and information set out therein.

2. That the husband shall be and is hereby restrained by himself, his servants or agents from taking or attempting to take any steps to frustrate or otherwise diminish the effect of the Procuração at paragraph 1 of these Orders.

3. That the husband shall pay the wife’s costs of and incidental to the hearings of this Court conducted on 14 December 2007, 12 March 2008, 18 March 2008 and 20 March 2008, such costs to be on an indemnity basis to be agreed within 14 days and failing agreement to be taxed.

4. That the wife’s Application in a Case filed 8 February 2008, her Amended Application filed 14 March 2008 and her Application for Contempt filed 14 March 2008 shall otherwise be dismissed and she shall have leave to withdraw her Application for Contravention filed 14 March 2008.

5. That Registrar Field shall advise the parties of a date and time for a telephone mention in an effort to prepare this case for trial but she is requested to hold the mention after at least one month has expired, to enable the wife’s solicitor to obtain the information from the Portuguese banks.

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

Mrs Porto

Applicant

And

Mr Porto

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The wife has filed a number of applications that are before me today. At the heart of them is her application that the husband be found in contempt pursuant to s 112AP of the Family Law Act, that a warrant be issued for his arrest, that he be taken by the Australian Federal Police to the Portuguese consulate to sign a particular document, and that if he fails to do so, that he be imprisoned until such time as he agrees to comply with an order made by the Court on 14 December 2007.

2. The husband has, as of yesterday, signed the required document.  Today, through counsel, the wife has indicated that her application for contravention filed on 14 March 2008 shall be withdrawn.  She has sought that her application for contempt filed on that same day should go ahead.  She has sought certain orders pursuant to her amended application in a case, also filed 14 March 2008, designed to obtain further information from Portugal, and she has sought indemnity costs.

   RELEVANT HISTORY

3. The history has been set out by me a number of times in a number of places, most recently in my reasons for judgment given on 12 March 2008, leading to my restating the order of 14 December 2007 for the husband to sign the power of attorney or proxy or the document referred to in Portuguese as the Procuração. 

4. The torturous history of the husband's failure to cooperate in signing that document is set out in detail in the wife's affidavit of 14 March 2008.  His lack of co-operation culminated with his simple refusal to sign it, in a letter dated 24 January 2008 between solicitors, and again as related by counsel on his behalf in open court on 12 March 2008.

5. He then signed the document, but with additions made by him that potentially rendered the document useless.  A further order that he sign it was made by me on 18 March 2008.  Yesterday, he finally complied. 

6. The relevance of course of the Procuração is that without it, some of the Portuguese banks in which the husband on his account put the parties' $4.6 million (on the wife's account it is more than that but that is immaterial for current purposes) that was moved out of Australia, before he withdrew and lost it.  Without that Procuração, the banks, or some of them, are not disclosing further information to the wife or her advisers and accordingly, the Procuração has always been argued to be and has been found by me to be, absolutely essential to the husband's full and frank disclosure in this case.

   THE WIFE’S APPLICATION FOR CONTEMPT

7. I will deal first with the wife's application for the contempt application to go ahead, even though the document has now been signed, and she no longer seeks that the husband be fined or imprisoned.  She argues, through counsel, that it should proceed, first for its deterrent effect, and secondly so that the husband can be cross‑examined about various outstanding matters. 

8. As to the latter argument, it is with respect in my view a misconception of contempt proceedings.  The rules would not allow – and properly, given the criminal or quasi‑criminal nature of the proceedings - the husband to be compelled to go into evidence.

9. As to the aspect of deterrence, clearly from the point of view of specific deterrence, it is clear that the husband has now shown an understanding of the need to comply with court orders, having complied, albeit at the eleventh hour.  As to general deterrence, the course of this case should have clearly heralded that if the court finds wilful disobedience of an order, imprisonment and indeed indefinite imprisonment may be a real prospect for an offender.  However, I do not propose to use public resources to hear this application now in these circumstances.  The husband should understand that the system cannot be played so that after delay upon delay, the court will ignore any wilful disobedience of a court order if it is proven.  He is amply forewarned, as is anyone who is contemplating disobeying a court order.

   THE WIFE’S APPLICATION FOR FURTHER INFORMATION FROM PORTUGAL

10. The orders sought for information to be obtained from Portugal involves, according to Mr Puckey for the wife, the Attorney-General of the Commonwealth of Australia being asked to take steps to obtain information from his relevant counterpart or authority in Portugal.  As I made clear in the course of argument, although I am persuaded that everything should be done to require the least number of returns to court in this protracted and expensive proceeding, I am not prepared to make orders requiring authorities in two countries to embark upon a further resource-intensive process when the very document which has been so bitterly resisted until now may be the key to relevant information being obtained.  The process, through the banks, should first be concluded.  I will adjourn the wife's amended application so that it remains on foot in the event that further orders are needed in the future.

    THE WIFE’S COSTS

11. That leaves the question of costs this far. Sensibly, a costs order is not resisted by the solicitor for the husband. It cannot be. My discretion under s 117 of the Family Law Act must be exercised in the wife's favour.  As noted, she has been put to enormous expense, primarily pursuing a document that could have and should have been signed by the husband, and ultimately but very late in the piece was signed.

12. Mr Lipschutz for the husband resisted the indemnity costs on the basis that the wife could have simply obtained the information she sought from the court in Portugal.  Mr Puckey for the wife argued to the contrary, that the wife was not able to obtain the full picture of the information without the Procuração.  That has consistently been said and sworn on her behalf, including by her legal expert in Portugal.

13. Mr Lipschutz has produced some documents that were ultimately produced to this court by the Portuguese court following various processes.  There is a letter enclosing bank records in relation to one particular bank and one particular account.  The Procuração, as Mr Puckey argues, certainly seeks more than that.  It seeks information from other banks, and potentially in relation to other accounts.  For that reason, I am satisfied that it is something much broader than the information that is presently to hand and it is why it has been consistently sought over many months.

14. I am satisfied this is precisely a case for indemnity costs.  The wife, currently shut out from considerable wealth on the husband's account that he has lost all their money, works as a part-time cleaner.  The husband's conduct in refusing to comply with the orders is, to use an appropriately restrained term at this stage, unimpressive, and she should not suffer any financial loss as a result.  Her applications related to some other searches for information that in the end she has not proceeded with, but they were minor.  The Procuração has been front and centre in these proceedings and by far the majority of costs relate to that, so I do not propose in any way reducing an order for indemnity costs in relation to these applications.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date: