Porto & Porto (No 3) - [2010] FamCA 1145

FAMILY COURT OF AUSTRALIA

PORTO & PORTO (NO. 3)

[2010] FamCA 1145

FAMILY LAW – PROPERTY – Transaction to defeat claims

Family Law Act 1975 (Cth)

Anstis & Anstis & Anor (No.1) (2000) FLC 93-013
Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR273
Khademollah & Khademollah (2000) FLC 93-050
Castles & Pesic [2008 FamCa] 1003
Brown & Brown (2007) FLC 93-316

APPLICANT:

Ms Porto

RESPONDENT:

Mr Porto

FILE NUMBER:

MLC

3219

2007

DATE DELIVERED:

8 December 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

DESSAU J

HEARING DATE:

8, 9, 10, 11, 12 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Costello

SOLICITOR FOR THE APPLICANT:

Holding Redlich

COUNSEL FOR THE RESPONDENT:

Mr Glover

SOLICITOR FOR THE RESPONDENT:

Berry Family Law

Orders

That all existing applications shall be adjourned to 10.00am on 17 December 2010 before me for costs and interest argument and the pronouncement of final property orders.

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

INTRODUCTION

Mr and Mrs Porto married 37 years’ ago in Portugal. Shortly after, they moved to Australia. They worked hard, raised their two children, and grew substantial wealth of what was by 2005, the year of their separation, between about $4.5 and $5.5 million, depending whose account is accepted.
In about 2002, the parties started to “cash up” their Australian assets. Although they disagree as to the longer term plan they had at the time, they agree that between mid-2004 and mid-2005 they transferred the substantial part of the family wealth to Portugal.
On the husband’s version, he lost all the money there, in a fraud perpetrated against him just prior to his return to Australia and separation from his wife, in October 2005.
On the wife’s version, there was no such fraud. The husband simply secreted the monies to thwart her property settlement.
There are four steps for me in any property case. The first is to establish the pool of assets and liabilities. The second is to determine each party’s respective contributions. The third is to consider a range of factors including the parties’ respective future needs and responsibilities. The final step is to consider how to achieve a just and equitable result in a property division between them.
In this case, the question of the lost or hidden funds is at the heart of it all. The parties otherwise agree that they made different but equal contributions in the course of the marriage, and that taking into account s 75(2) of the Family Law Act and other matters, each would be entitled to half of any assets.

BACKGROUND

Mr Porto (“the husband”) was born in Portugal in 1947. He is now aged 63. Ms Porto (“the wife”) was born in Portugal in 1955 and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Porto & Porto (No 3)

Details

AGLC: Porto & Porto (No 3) [2010] FamCA 1145
Case: [2010] FamCA 1145
Decision Date: 8 December 2010

CaseChat Overview and Summary

In *Porto & Porto (No 3)*, Dessau J of the Supreme Court of Victoria considered applications relating to property orders and costs. The specific nature of the dispute between the parties, Porto and Porto, is not detailed in the provided text, beyond the fact that it concerned property and led to applications for costs and interest.

The central legal issues before the court were the determination of final property orders and the assessment of costs and interest associated with the proceedings. The court was required to resolve these outstanding matters to bring the litigation to a conclusion.

Dessau J adjourned all existing applications to a specific date for the purpose of hearing arguments on costs and interest, and thereafter, for the pronouncement of final property orders. This indicates that the substantive determination of the property division had likely occurred or was imminent, with the focus shifting to the financial consequences of the litigation and the finalisation of the property settlement.

Orders

Orders of the court

That all existing applications shall be adjourned to 10.00am on 17 December 2010 before me for costs and interest argument and the pronouncement of final property orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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