Porto and Porto (No. 3)

[2007] FamCA 1612

FAMILY COURT OF AUSTRALIA

PORTO & PORTO (NO. 3) [2007] FamCA 1612

FAMILY LAW – EVIDENCE – Documentary evidence

Family Law Act 1975 (Cth)

APPLICANT: Mrs Porto

RESPONDENT: Mr Porto

FILE NUMBER: MLC 3219 of 2007

DATE DELIVERED: 14 December 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 14 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr T.J. Puckey

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr G.A. Devries

SOLICITOR FOR THE RESPONDENT:

Orders

1A.    Within 7 days of the date of these Orders the Wife provide to the Husband's solicitor a copy of the "Procuraçeo" referred to in paragraph 2.

1. Within 7 days of the provision of the "Procuraçeo" the Husband shall attend the Portuguese Consulate in Melbourne in the company of his solicitor and the solicitor for the Wife. 

1. While at the Portuguese Consulate the Husband shall sign a “Procuraçeo” limited to authorising and requesting the M Bank and the O Bank in Portugal together with any other bank or financial institution which holds funds on or behalf of the Husband directly or indirectly to provide the solicitor for the Wife with:

(a)     Copies of all bank statements relating to all accounts in which the Husband has or has had a direct or indirect interest.

(b)    Copies of any documents that show where funds taken from those bank or financial institution accounts have been disbursed.

(c)    Copies of any loan applications made by the Husband to those banks or financial institutions.

(d)    Copies of all correspondence held by the bank or financial institution relating to the Husband, directly or indirectly.

1. The Wife is hereby granted leave to subpoena the Department of Immigration and Citizenship to obtain copies of passenger embarkation and passenger arrival cards and like documents signed by the Husband from 2002 to date.

1. The Husband shall, pursuant to Rule 13.27, provide answers and supporting documentation in response to the following specific questions after making all necessary enquiries required to do so:

(a)     Provide the name of the magazine to which he refers in paragraph 7 of his Affidavit filed with this court on 23 July 2007. 

(b)    Provide the mobile telephone number for the person known as Mr D to whom the Husband alleges he has met and given cheques to the value of millions of Australian dollars. 

(c)    Provide the telephone records for all of the Husband’s telephones for the period January 2005 to January 2006 including mobile and landline accounts.

(d)    At paragraph 13 of his Affidavit filed with this court on 23 July 2007, the Husband states that Mr D invited him to his home.  Make all necessary enquiries to identify and provide the address and name of the village or town in which Mr D was residing.

(e)    At paragraph 15 of his Affidavit filed with this court on 23 July 2007, the Husband states that he met with Mr D when he arrived in Portugal in July 2005.  Explain how he contacted Mr D to organise this meeting. 

(f)     Provide details regarding the proposed four investment developments that the Husband claims he provided cheques for millions of Australian dollars for, including their location and the type of development being considered. 

(g)    Provide the firm name, address, telephone number and other contact details of Mr D’s lawyer. 

(h)    Why did the Husband write a number of cheques in his own name over a period of time and then endorse the cheques to Mr D?  

(i)     Why did the Husband not make one cheque directly to Mr D?

(j)     Provide the dates on which the Husband has consulted with Dr L.

1. The Husband shall pay the Wife’s costs of and incidental to this Application to be agreed within 28 days, failing agreement to be taxed.

1. The Wife is hereby granted leave to subpoena the trust account and billing records of Berger Kordos Lawyers relating to work they have done directly or indirectly for the Husband from 2002 to date.

1. The Wife is hereby granted leave to subpoena the trust account and billing records of Louis H. Stergiou, Solicitor relating to work he has done directly or indirectly for the Husband from 2002 to date.

1. The Wife's Application as Amended on 11 December 2007 and the Husband's Response filed 27 November 2007 are otherwise dismissed.

1. Certify for Counsel.

NOTATION

A.    The Registrar will provide each solicitor on the record with a copy of all correspondence passing between this Court and the Portuguese Court.

B.    The Husband consents to Mr Stergiou providing the documents referred to in paragraph 7.

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. I have heard the wife's form 2 application this morning in which she seeks answers to various questions, and certain actions on behalf of the husband, in order to obtain information from Portugal in relation to a hotly contested property case in this court.

2. Her application has very, very largely been acceded to today.  Any objections have been minor, and about what I would regard as peripheral details. 

3. The wife now seeks costs. The husband opposes her application. The background, which has been stated in other judgments and only needs to be stated briefly, is relevant in the sense that it sets the context for her application.

4. It is common ground that a large number of properties in Australia, owned by the parties or entities related to the parties, were sold in the period leading up to 2004/2005.  The husband admits that between 2004 and 2005, around $4.6 million was moved to Portugal.  On his account, it was entirely lost when he gave the money to a man he only knows as Mr. D, from whom he received no receipt or paperwork, and with whom he is unable to make any contact at all.

5. That context is why the wife has had reason to seek the fullest and frankest disclosure about various details in order for this case to be able to proceed further to a just and equitable settlement.

6. What is claimed for the husband today is that he has answered various questions put to him and that he has done all within his power to ensure that the appropriate information now sought in the application has been forthcoming, so that this application was not required.  Further, that the onus was on the solicitors for the wife to set about getting any further material in an appropriate manner.

7. Costs are determined under s117 of the Family Law Act 1975. Each party bears their own costs unless in the discretion of the court there should be a costs order. Section 117(2A) sets out the matters that I must take into account.

8. In this case I am utterly persuaded that the husband should be ordered to pay the wife's costs.  She has been so close to wholly successful in her application.  The husband's response had sought the dismissal of her application and costs, when in fact he has now agreed to virtually every order she sought.  Any of the discussion around the edges of the orders was discussion that the husband, through his solicitor, could have and should have had with the solicitor for the wife.  It would have been a reasonable way of responding to what was a reasonable request.  That has not occurred.

9. In the circumstances of the conduct of the parties and the outcome of today's application - placed in the context of these proceedings where disclosure is of the utmost importance - I am satisfied that my discretion should be exercised in favour of a costs order in the wife's favour.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate

Date:  14 December 2007