Porto and Porto (No. 3)

[2008] FamCA 477

FAMILY COURT OF AUSTRALIA

PORTO & PORTO (NO. 3) [2008] FamCA 477

FAMILY LAW – EVIDENCE – Evidence abroad

APPLICANT: Mrs Porto

RESPONDENT: Mr Porto

FILE NUMBER: MLC 3219 of 2007

DATE DELIVERED: 19 June 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 19 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms G. Costello

SOLICITOR FOR THE APPLICANT: Westminster Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Mr Lipshultz

Orders

This application coming on before this Court AND UPON HEARING Ms Costello of Counsel for the applicant wife and Mr Lipschutz for the respondent husband and UPON THE UNDERTAKING of the wife to be responsible for all expenses incurred by the Court or by persons at the request of the Court, in respect of the attached Letter of Request and to pay the amount to the Registry Manager of the Family Court of Australia, Melbourne Registry after being given notice of any such expenses

IT IS ORDERED

1. That pursuant to the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters the Registry Manager of the Family Court of Australia, Melbourne Registry shall arrange for the following documents to be sent to the Administrative Law and Civil Procedure Branch, Civil Justice Division, Australian Government Attorney-General’s Department:

   (a)The Letter of Request in the form attached to these orders but amended by deleting the words in paragraph 10 “which holds funds for or on behalf of [the husband]” and adding instead the following words: “…in which there are reasonable grounds to believe funds are or have been held on behalf of [the husband].”;

   (b)A copy of the Letter of Request translated into Portuguese accompanied by an affidavit of correct translation by a NAATI accredited translator, to be provided to the Court by the wife’s solicitors on or before 30 June 2008; and

   (c)A copy of my reasons for judgment given this day.

1. That my reasons for judgment given this day shall be prepared with priority, retained on the Court file, and a copy provided to each party.

1. That all existing applications shall be adjourned to a telephone mention with Registrar Field on a date to be advised to the parties, to be in about 10 weeks’ time.

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

1. The wife's application today is to have evidence taken abroad in Portugal. 

2. I have set out the family history in the many interlocutory proceedings to date.  My last reasons for judgment were given on 20 March 2008.  They related to a power of attorney, known in Portuguese as a “Procuração”, that the husband had until then for many months failed, and then refused to sign, to enable the wife to obtain bank documents and bank details in Portugal.

3. It is common ground that these parties worked hard in the course of their marriage of more than 30 years.  They built up substantial assets.  It is also common ground that their assets were sold at and around the time of separation and that $4.5 million on the husband's account, and up to $7 million on the wife's account, was moved overseas to Portugal.

4. It is common ground that the money is currently missing.  The husband says that he gave it to a man by the name of Mr D.  All the evidence before me this far has suggested that is a very common Portuguese name.  The husband's account is that he received no receipt for the money, no paperwork, no security, and that he has no way at all to contact or track Mr D and the “missing” millions.  He says quite simply the money has gone.

5. The wife does not accept that the money has gone.  It is clear from all the material before me to date that she points to the far-fetched nature of the husband's account.  She has referred in material to the fact that he was a successful and careful businessman in Australia and that his story as to how he lost the family wealth is inconsistent with his behaviour leading up to that time.  She also relies on the evidence of the parties’ two adult children and references by them to their father suggesting that the money is secreted in Portugal. 

6. Like all parties to property proceedings in this Court, the husband is obliged to make a full and frank disclosure.  Over a protracted period the wife has been trying to obtain information.  She has encountered various obstacles placed by him, and at times by the Portuguese courts. It is therefore ironic that today the husband through his solicitor says he has no objection to the actual procedures proposed by the wife to obtain information from Portugal, but he opposes the application in principle on the basis that it will delay a hearing in this case.

7. My recollection is that the Procuração ultimately signed by the husband, on 19 March 2008, had been ordered to be signed in late 2007.  The husband’s concern today about delay must, in that light, fall on deaf ears.  I am satisfied that far from wanting this case delayed, the wife wants a conclusion as soon as possible, but only after every reasonable effort has been made for a proper investigation of the husband's affairs in Portugal.

8. I am satisfied that it is just to adopt the procedure proposed by the wife.  Correspondence between this Court and the Portuguese Court in 2007 failed to reap the material sought.  The tortuous process of pursuing the Procuração with the Portuguese banks has turned up some documents, but there is now another hurdle, with one bank apparently indicating that the Procuração is not appropriately signed, at least not to that bank's satisfaction.

9. Australia and Portugal are signatories to the Convention on the Taking of Evidence Abroad in Civil or Commercial matters.  Article 1 of the convention provides that a judicial authority of one Contracting State:

   …may, in accordance with the provisions of the law of that State request the competent authority of another Contracting State, by means of a Letter of Request, to obtain evidence, or to perform some other judicial act.

10. Article 2 provides that a Contracting State shall designate a Central Authority.  In Australia it is the civil branch of the Commonwealth Attorney-General's Department.  In Portugal it is the Director-General of the Administration of Justice. 

11. Article 3 of the convention provides for a Letter of Request to obtain the evidence from abroad, and as to what must be contained within it.

12. Rule 15.73 of the Family Law Rules provides the procedure in pursuing such information.

13. In compliance with the Rules, Ms Costello, counsel for the wife has drafted a proposed Minute of order and a Letter of Request.

14. I propose making the order sought, upon the wife's undertaking to be responsible for all expenses incurred by the Court or by persons at the request of the Court in respect of the Letter of Request, as referred to in the Family Law Rules. 

15. The wife's legal representatives have prepared the Letter of Request to be translated into Portuguese.  I propose one alteration to it, following the earlier discussion in the course of submissions.  In paragraph 10 of the proposed letter, where it currently reads

    …together with any other bank or financial institution which holds funds for or on behalf of [the husband],

    it should be redrafted to read

    …together with any other bank or financial institution in which there are reasonable grounds to believe funds are or have been held on behalf of [the husband].

16. I am not comfortable with the draft letter proposed to be sent by this Court to the Attorney-General's Department.  In my view it is appropriate that the letter of Request be sent with a copy of these Reasons for Judgment.  Between those two documents the appropriate officer in the Attorney-General's Department should be adequately apprised of this case, this procedure and my reasons for adopting the procedure, without the need for additional correspondence. 

17. There are other small alterations I propose to make to the draft orders.

DISCUSSION.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  19 June 2008