Reberto & Reberto and Ors

[2007] FamCA 1676

FAMILY COURT OF AUSTRALIA

REBERTO & REBERTO AND ORS [2007] FamCA 1676

FAMILY LAW – COSTS – SECURITY FOR COSTS – Orders

FAMILY LAW – DISCOVERY – Orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Reberto

RESPONDENT: Mrs Reberto

INTERVENERS: Mr F Reberto & Ms C Reberto 

FILE NUMBER: MLF 1937 of 2006

DATE DELIVERED: 10 December 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 10 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Scriva

SOLICITOR FOR THE APPLICANT: Calleas Le Brun & Burke

COUNSEL FOR THE RESPONDENT: Mr Dickson

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INTERVENERS:

SOLICITOR FOR THE INTERVENERS:

Marshalls & Dent

Mr Staindl

Agricola, Wunderlich & Associates

Orders

1. I direct that the minutes of orders filed this day, marked exhibit A, remain on the court file. 

2. I order not by consent in accordance with those minutes to be engrossed on the provision of an electronic copy in the appropriate form by the solicitors for the wife in seven days.  They include orders dismissing interim applications filed on the part of the wife on 8 November 2007, the husband on 7 December 2007 and the interveners by leave this day. 

MINUTES OF ORDERS

1. Each of the parties (including the Interveners) file and serve by 31 January 2008 an Affidavit of Documents setting out all documents in their possession, power and control relating to the issues in dispute in the property proceedings (to include, but not limited to, the documents referred to in paragraphs 4 and 5 of the wife’s Form 2 filed 8 November 2007).

2. The husband and wife do all things and sign all documents to apply to establish an interest only or line of credit facility with a limit of $80,000, such facility to be secured over the property at …, W owned by S Pty Ltd  as Trustee for the Reberto Family Trust.

3. The wife be at liberty to draw up to $70,000 from the facility as follows:

   (a)       $50,000 towards her legal and accounting costs of these proceedings;

   (b)      $20,000 to the wife for her maintenance.

4. The wife be responsible for meeting the payments required on the loan facility, she to be at liberty to apply the un-drawn portion of the facility towards the repayments.

5. Categorisation of the payments relating to the facility be at the discretion of the Trial Judge.

6. That the wife’s Interim Application filed 8 November 2007, the husband’s Response filed 7 December 2007 and the Interveners Response filed by leave this day, be otherwise dismissed.

7. Costs reserved.

8. Liberty to apply.

9. Certify for Counsel.

IT IS NOTED that publication of this judgment under the pseudonym Reberto & Reberto is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1937 of 2006

MR REBERTO  

Applicant

And

MS REBERTO  

Respondent

REASONS FOR JUDGMENT

1. These proceedings come before me by way of interim application filed 8 November 2007 on behalf of the wife.  The husband has responded by way of application filed on 7 December of this year.  The two issues in these applications are: first, the question of discovery; and second, the question of a ‘Barro’ order or expenses of litigation. 

2. The parties have agreed on discovery by way of formal affidavits of documents being filed and served by all parties.  The date was in dispute.  The wife sought 31 January 2008.  The husband's solicitor, because of moving, sought middle to late February.  I prefer the submission of counsel for the wife.  31 January, being at least six weeks from now, despite the intervention of Christmas, is sufficient and the date will be 31 January 2008. 

3. The question of the Barro application has narrowed itself down to the security to be used for the money.  It is common ground that a line of credit facility be established with a limit of $80,000 with a particular named account with a specified lender.  It is also agreed that the wife be at liberty to draw up to $70,000 from the facility, as to $50,000 towards her legal and accounting costs of these proceedings and as to $20,000 for her maintenance.  The only question raised against the wife's application concerns the security to be used for that advance.  The two options are: first, the matrimonial home; and secondly, the farming property which appears to be at least one of, if not the, major asset in these proceedings. 

4. It is common ground as between the wife and the interveners, who are the husband's parents, that the net assets, as best as they can be discovered at this stage, total approximately $1.1 million; in any event, over $1 million.  It is also common ground that the other major asset, being a real property in which the wife lives with the young children, has a value of $220,000 and is unencumbered.  The debate has focused on, ultimately, the question of what, if any, prejudice would be caused to the husband were the farm to be used as security for this loan.

5. In my view it is beyond debate, on those facts, that the wife will receive at least the home property unencumbered together with a significant sum of money which, in my view, will easily exceed the sum of $80,000.  In light of that, in my view it is inappropriate that the home be used for security because it will simply need to be discharged in due course.  In those circumstances the only security being the farm and there being no suggestion that the farm cannot be used, it is appropriate that the farm be used as the security.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate

Date: 12 May 2008