MOLNAR & PENLINGTON

[2014] FCCA 849

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOLNAR & PENLINGTON [2014] FCCA 849

Catchwords:
FAMILY LAW – Property – de facto relationship of nearly 15 years – two children – contributions – needs factors – applicant primarily responsible for financial support of children – respondent unemployed.

Legislation:

Family Law Act 1975, ss.75, 79, 90SF, 90SM

Bigelow & Reuter [2006] FamCA 1455
Clauson & Clauson (1995) FLC 92-595
Clives & Clives (2008) FLC 93-385
C & C (2005) FLC 93-220
Ferraro & Ferraro (1993) FLC 92-335
Garrett & Garrett (1984) FLC 91-539
Hayne & Hayne (1977) FLC 90-265
Hickey & Hickey (2003) FLC 93-143
Kessey & Kessey (1994) FLC 92-495
Lee Steere& Lee Steere (1985) FLC 91-626
Milankov & Milankov (2002) FLC 93-095
OSF & OJK (2004) FLC 93-191
Parshen & Parshen (1996) FLC 92-720
Pierce v Pierce (1999) FLC 92-844
Poulos & Poulos (1984) FLC 91-515
R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 257
Russell v Russell (1999) FLC 92-877
Stanford v Stanford (2012) FLC 93-518; (2013) 293 ALR 70

Applicant: MS MOLNAR

Respondent: MR PENLINGTON

File Number: MLC 7920 of 2012

Judgment of: Judge Roberts

Hearing dates: 20 and 21 March 2014

Date of Last Submission: 21 March 2014

Delivered at: Melbourne

Delivered on: 30 April 2014

REPRESENTATION

Counsel for the Applicant: Mr Crozier-Durham

Solicitors for the Applicant: Beaumont Lawyers

Solicitors for the Respondent: Not represented by a lawyer

ORDERS

1. That the net proceeds from the sale of the real property at Property H in Victoria currently held in trust by the solicitors for MS MOLNAR (“the applicant”) be forthwith paid to the applicant.

2. That within six months of today MR PENLINGTON (“the respondent”) must pay to the applicant the sum of sixty-seven thousand dollars ($67,000) (“the balance settlement”).

3. That time is extended by six months from today for the respondent to pay to the applicant a total of $18,060 in respect of costs already ordered to be paid by him (“the ordered costs”).

4. That the respondent pay, indemnify and keep the applicant indemnified in relation to:

   (a)any liability or outgoing with respect to the property situated at and known as Property D in Victoria, more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the Property D property”);

   (b)his business overdraft;

   (c)his business credit card debt;

   (d)any loan or other liability in relation to his (omitted) vehicle motor vehicle; and

   (e)his personal credit card debts.

5. That the applicant pay, indemnify and keep the respondent indemnified in relation to the:

   (a)her (omitted) Finance loan; and

   (b)any outstanding school fees for the parties’ children, or either of them.

6. That in the event that any part of the balance settlement or any part of the ordered costs is not paid to the applicant within six months of today, the Property D property must be sold and the applicant be appointed as Trustee for the sale of that property (“the sale”).

7. That upon completion of the sale, the proceeds of the sale be applied as follows:

   (a)firstly, to pay all reasonable costs, commissions and expenses of the sale;

   (b)secondly, to discharge any mortgage or other encumbrance secured against the title to the Property D property;

   (c)thirdly, to pay to the applicant any amount outstanding in relation to the balance settlement and/or the ordered costs; and

   (d)fourthly, to pay the balance then remaining to the respondent.

8. That the parties have liberty to apply in relation to the implementation of the two preceding orders hereof.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7920 of 2012

MS MOLNAR

Applicant

And

MR PENLINGTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant in this matter is MS MOLNAR and the respondent is MR PENLINGTON.  They were not legally married but they lived together in a de facto marriage relationship for nearly 15 years.  The dispute between them relates to their competing applications for property settlement.

2. Ms Molnar is seeking orders that would result in her receiving 65% of the net value of the asset pool.  I will refer to that asset pool in some detail below, but her counsel quantified her claim in the vicinity of $320,000, constituted by a payment to her of slightly less than $128,000 currently held in trust by her solicitor plus a further payment to her by Mr Penlington of slightly more than $192,000.

3. In addition, Ms Molnar is seeking payment by Mr Penlington in relation to three costs orders that have been made against him which total $18,060.

4. Mr Penlington seeks orders that would provide for Ms Molnar to retain the funds currently held in trust by her solicitor and for him to pay Ms Molnar a further $60,000 over the next four years, making a total of slightly less than $188,000.  Mr Penlington is of the view that the $18,060 in costs referred to above should be part of and included in that total.  Consequently, the difference between the parties’ positions is in the vicinity of $150,000. 

5. Mr Penlington was not represented by a lawyer at the hearing.  Although he was emotional at times during the hearing, he generally acquitted himself well and with dignity.

The evidence

1. Ms Molnar relied primarily upon her affidavit and Financial Statement filed on 19 March 2014.  Her affidavit was in large part repetitious of what she had said in earlier affidavits but she also brought matters up to date, particularly in relation to the sale of a property in Property H (“the Property H property”).  The balance funds from that sale are held in trust by her solicitor.

2. Mr Penlington relied upon an affidavit and a Financial Statement filed on 5 June 2013, which had been prepared at a time when he was represented by lawyers.

3. I also had an affidavit before me by a valuer which was not challenged and the parties agree that a property on Property D registered in Mr Penlington’s sole name (“the Property D property”) is worth $365,000.

4. I had the opportunity to observe the parties in the witness box and I find that they are both essentially honest.  While there are differences between them, I am of the view that those differences generally relate to their perspectives or interpretation of facts or circumstances, rather than one party being right and the other being wrong.  It is not unusual in court proceedings for parties to give emphasis or interpretation to facts that support their positions.

Brief background

1. Where I refer to any fact in these Reasons, it should be regarded as a finding of fact unless a contrary intention is clear from the context.

2. The parties started living together in 1997 and they separated approximately 14 years later in 2011.  They have two sons, aged 14 years and 12 years, who are living with Ms Molnar. 

3. Ms Molnar has three other children, who live in her household and are now adults.  Mr Penlington has an adult daughter who does not live with him.

4. I will refer further to the facts of this matter in the light of the legal principles that I must apply. 

Relevant Law

1. The law with respect to financial matters relating to de facto relationships is found in Part VIIIAB of the Family Law Act 1975 (“the Act”).  Subsection 90SM(4) sets out the matters that the court must take into account when considering what orders should be made for the alteration of the property interests of parties.  They include:

   a)the financial and non-financial contributions made directly or indirectly by or on behalf of each party or by a child of the de facto relationship to the acquisition, conservation or improvement  of any property of the parties;

   b)the contribution made by a party to the welfare of the family including any contribution made in the capacity of homemaker or parent;

   c)the effect of any proposed order upon the earning capacity of either party; and

   d)the matters referred to in subsection 90SF(3) “so far as they are relevant”.

2. Because subsections 90SM(4) and 90SF(3) of the Act mirror subsections 79(4) and 75(2) of the Act, it is clear that the approach that Courts should take to the determination of de facto relationship property settlements is essentially the same as that which would have applied if the parties had been legally married. Consequently, the Court can have regard to relevant cases decided over the years pursuant to Part VIII of the Act, notwithstanding that Part VIIIAB of the Act only became law in 2009.

3. Prior to the recent High Court case of Stanford v Stanford,[1] the general approach to the determination of a property settlement application appeared to have been well established by authority as a multi-step process.[2]  The steps were said to involve:

   a)Firstly, an identification and valuation of the property, liabilities and financial resources of the parties;

   b)Secondly, an evaluation of the contributions made by the parties as defined in subsections 79(4) or 90SM(4)of the Act;

   c)Thirdly, a consideration of any relevant matters under subsection 75(2) of the Act; and

   d)Fourthly, before making an order adjusting property interests, being satisfied in all the circumstances that it is just and equitable to do so under subsections 79(2) or 90SM(3).[3] 

   [1] Stanford v Stanford  (2012) FLC 93-518; (2013) 293 ALR 70

   [2] See Lee Steere (1985) FLC 91-626; Ferraro  (1993) FLC 92-335; Clauson (1995) FLC 92-595, Hickey (2003) FLC 93-143 and C & C (2005) FLC 93-220

   [3] Also see Russell v Russell (1999) FLC 92-877

4. However, in Stanford, at paragraph 37, their Honours French CJ, Hayne, Kiefel and Bell JJ said:

   37. First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.

5. In paragraph 40 of Stanford, their Honours went on to say:

   40. Third, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”.[4] To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.

   [4] R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 257

6. The quotations above from Stanford clearly suggest that being satisfied that it is just and equitable to make an order cannot be the last in a series of four steps.  In my view, the assessment must begin with an identification of the parties’ legal and equitable interests in the asset pool and deciding whether it is just and equitable to make orders to adjust those interests.  Indeed, with the benefit of hindsight, it may have been wise for judicial officers over the years to have heeded the words of former Federal Magistrate Walters[5] when he said that “the testing of any proposed orders by reference to section 79(2) is not a fourth substantive step (properly so called) in the property settlement exercise, and there is no fourth step in that sense.” [6]

   [5] Now Justice Walters of the Family Court of Western Australia

   [6] OSF and OJK (2004) FLC 93-191 at paragraph 16

Is it just and equitable to make an order adjusting property interests?

1. Both parties are seeking orders to provide for payment to Ms Molnar of the balance funds in the sum of $127,793.48 that are currently held in trust by her lawyer (“the trust money”) as a result of the sale of the Property H property and the consequential discharge of the two mortgage loans.  Further, both parties are seeking orders that would require Mr Penlington pay an additional sum to Ms Molnar, even though they cannot agree upon the quantum of that sum.

2. The two major assets in this matter are the Property D property and the trust money.  The former is a property that Mr Penlington brought into the relationship and the latter comprises the balance funds after the sale of the Property H property which was also registered in the sole name of Mr Penlington.  The orders being sought therefore require an adjustment of Mr Penlington’s legal interests in one or more of those two major assets, so it is clearly just and equitable to make orders in this matter.

The asset pool

1. In round figures, the parties’ assets are as follows:

Property D	$365,000
The trust money	$127,793
Ms Molnar's Commodore	$5,350
Mr Penlington's (omitted) vehicle	$22,000
Mr Penlington’s tools and equipment	$2,000
Total	$522,143

1. In her Financial Statement Ms Molnar says that her household contents are worth $2,000, whereas Mr Penlington says that his household contents are “minimal” in his Financial Statement.  I propose to apply the principle of de minimis non curat lex to exclude them from consideration, because of their small value and the fact that the parties each retain some household contents.  I will also exclude both parties’ very small interests in superannuation from the asset pool on the same basis. [7]

   [7] For a discussion of the application of the de minimis principle see the Full Court decision in Milankov and Milankov (2002) FLC 93-095

2. Up until recently, the parties had two loans from the (omitted) bank that were secured by mortgages over both the Property H property and the Property D property.  However, those mortgage debts were discharged when the Property H property was sold.  Consequently, the Property D property is no longer subject to any mortgage loan liability.

3. Ms Molnar has a loan liability to (omitted) Finance in the sum of $23,873.  That loan was to consolidate debts that she had at the time of separation, being a car loan, a credit card debt and a personal loan.  In my view, it is appropriate to take that liability into account.

4. The tools and the (omitted) motor vehicle shown in the table above are assets that Mr Penlington used in his (omitted) business when the parties were living together.  It is therefore appropriate to take account of his business liabilities, in addition to any relevant personal liability.  Mr Penlington provided documents to show that his business overdraft was $30,629 on 20 February 2014.[8]  In addition, his evidence was that a business credit card balance was still in the vicinity of $5,000 and the loan balance in relation to the (omitted) motor vehicle is $19,380.  He also has a personal credit card liability in the vicinity of $8,260,[9] which should also be taken into account.

   [8] Exhibit “R2”

   [9] See Exhibit “R3”

5. At paragraph 30 of her trial affidavit Ms Molnar says:

   Due to my severely strained financial circumstances since my separation from [Mr Penlington], and his lack of support, I fell into arrears in relation to the payment of the school fees for [the children].  I am currently in arrears for those fees in approximately $3,912.00.

6. I accept Ms Molnar’s evidence that both parties wanted their children to attend a (religion omitted) primary school and it is clear that both parties should be responsible for the support of the children.  It is therefore appropriate to take that debt into account when assessing the net value of the asset pool. 

7. The relevant liabilities of the parties are as follows:

Ms Molnar's (omitted) Finance loan	$23,873
Ms Molnar’s school fee debt	$3,912
Mr Penlington’s business overdraft	$30,629
Mr Penlington’s business credit card	$5,000
Mr Penlington's (omitted) vehicle liability	$19,380
Mr Penlington’s personal credit card	$8,260
Total	$91,054

1. Consequently, the net value of the asset pool is $431,089.

Contributions

1. In general, the assessment of contributions is not an exercise of mathematical precision.  In Hayne and Hayne,[10] Pawley J said: 

   In matters such as this one cannot approach the problem with an eye for meticulous detail. It should rather be dealt with broadly so that the end result can be said to be just and equitable.

   [10] Hayne and Hayne (1977) FLC 90-265 at p. 76,415

2. Similar statements were made in Garrett and Garrett,[11] Clives and Clives,[12] Kessey and Kessey,[13] and Poulos and Poulos[14] and it is clear that any evaluation of the weight to be attributed to different types of contributions - such as direct financial contributions and indirect non-financial contributions - cannot possibly be a science involving precise measurement.

Initial contributions

[11] Garrett and Garrett (1984) FLC 91-539

[12] Clives and Clives (2008) FLC 93-385 at paragraph 44

[13] Kessey and Kessey (1994) FLC 92-495 at page 81,150

[14] Poulos and Poulos (1984) FLC 91-515 at p. 79,184

1. It appears to be conceded by Ms Molnar that Mr Penlington brought more valuable assets into the relationship than she did.  However, I find that she had a tendency to undervalue Mr Penlington’s initial contributions while overvaluing her own

2. Repeating what she had said in earlier affidavits, Ms Molnar said the following in her trial affidavit about the parties’ initial contributions:

   At the commencement of our relationship I owned a motor vehicle and various household furniture and contents.

   At the commencement of our relationship [Mr Penlington] was the sole registered proprietor of the [Property D] property. This property had been transferred to him by his parents in 1987 at no cost to himself.

   At the commencement of our relationship [Mr Penlington] also owned a residential investment unit in (omitted) which was encumbered by a mortgage loan. This property was sold in approximately 1999 and I believe that [Mr Penlington] received a net amount from the sale in the sum of approximately $40,000.00. These funds were used by [Mr Penlington] to pay for an outstanding taxation debt which he had. They were also used to pay his Solicitors fees relating to Family Law proceedings involving [Mr Penlington]’s former de facto spouse.

3. Mr Penlington had responded to those paragraphs of her earlier affidavit as follows:

   8.  I agree with the contents of paragraph 13 of the Applicant’s affidavit save that I say that the Applicant also had a significant credit card liability at the commencement of the relationship.

   9.  I agree with the contents of paragraph 14 of the Applicant’s affidavit save that I say that I purchased the [Property D] property (which was then a block of land) in or about 1986 from my parents for the sum of approximately $3,000 and shortly thereafter I constructed a dwelling on the property.  I believe the construction costs were approximately $50,000 which I paid for from my personal savings.

   10.  As to paragraph 15 of the Applicant's affidavit, I say that the (omitted) unit was sold in about 1998 for $120,000 and the proceeds of approximately $40,000 were applied to discharge my expenses at the time and the Applicant’s pre-relationship credit card liability and the remainder of which was applied towards our general living expenses.

4. Mr Penlington also added that when the relationship started he also “owned a motor vehicle and had an established business (omitted) generating income of approximately $35,000-$45,000 per annum”.

5. Ms Molnar also claimed to have provided “virtually all of the furniture and contents for the [Property D] property during the time in which we lived in it”.  To that, Mr Penlington responded as follows:

   I deny that the applicant contributed virtually all of the furniture and contents at the [Property D] property and say that the house had been fully furnished at my expense prior to our occupation.  I say that the applicant brought some personal items of furniture to the home which she owned at the commencement of the relationship.[15]

   [15] At paragraph 13 of his affidavit

1. Mr Penlington was not seriously challenged about any of his evidence about his initial contributions when he was cross-examined.

2. In Pierce v Pierce the Full Court said:[16]

   It is necessary to weigh the initial contributions by a party with all the other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution … … regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home ...

   [16] Pierce v Pierce (1999) FLC 92-844 at paragraph 28

3. In this case, it is reasonable to infer that Mr Penlington’s ownership of the Property D property gave the parties an asset base upon which they could build.  That inference is supported by the fact that the parties’ borrowings were secured by mortgages over both the Property D property and the Property H property.  It is therefore my view that significantly greater weight should be attributed to Mr Penlington’s initial contributions than to those of Ms Molnar. 

Contributions during cohabitation

1. I have little difficulty in concluding that equal weight should be attributed to the parties’ contributions during the time that they lived together.  While their contributions were at times financial and at other times non-financial, it is clear to me that both parties were “pulling their weight”.  In this regard, Kay J said this in relation to a wife’s contributions in Bigelow & Reuter: [17]

   What was the relevant finding is that the wife, whatever she was doing in the course of the relationship, was not able to earn money at the same rate that the husband was able to earn, but there is nothing to indicate that she was not pulling her weight in terms of effort and endeavour. 

   [17] Bigelow & Reuter [2006] FamCA 1455 at paragraph 25

2. Because subsection 90SM(4) mirrors subsection 79(4) of the Act, that reasoning must also apply to de facto relationships (and on a non-sexist basis).

3. In this case, Mr Penlington conceded that at times when he was renovating properties with the assistance of his family, Ms Molnar was looking after their children.  Further, there is no suggestion by either party that the other did not contribute his or her income to the relationship.  In this regard, their Honours Ellis, Finn and Purdy JJ said this in Parshen & Parshen,[18]:

   In our view, in the absence of evidence to the contrary, it should be inferred in proceedings pursuant to the provisions of s79 that moneys howsoever received by a party during the course of the parties’ cohabitation, are used by that party for the benefit of the family unit. Such moneys, in those circumstances, thus constitute a financial contribution by the party who received the moneys. [19]

   [18] Parshen & Parshen (1996) FLC 92-720

   [19] At page 83,665

4. Clearly, that reasoning is also applicable in relation to de facto relationships.

5. In the circumstances, I do not propose to analyse the minutiae of the parties’ individual contributions during their cohabitation.  It is sufficient that I consider them to have been equal after the initial contributions that I have referred to above.

Post-separation contributions

1. It is important to bear in mind that contributions pursuant to subsection 90SM(4) are not restricted to those that result in the “acquisition, conservation or improvement” of assets.  They also include contributions “made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent”.[20]

   [20] See subsection 90SM(4)(c)

2. It is clear from the evidence that Ms Molnar has been supporting the children with minimal support from Mr Penlington since separation at the end of 2011.  While she is to be commended for that, it is important not to place too much weight on her post separation contributions, primarily, because I have included the school fees debt as a liability be taken into account when assessing the value of the asset pool.

3. Consequently, when I consider the significantly larger initial contribution made by Mr Penlington, the equal contributions during cohabitation and the post separation contributions made by Ms Molnar, I conclude that if this matter was to be resolved solely on the basis of the weight of their contributions, it would be appropriate to attribute 65% to Mr Penlington and 35% to Ms Molnar.  However, such matters are not resolved on the basis of contributions alone.

Subsection 90SF(3) factors

1. The Act requires the Court to consider the matters set out in subsection 90SF(3), insofar as they are relevant.  They are sometimes referred to as the “needs factors”.

The age and state of health of the parties

1. Ms Molnar is aged 48 years and she claims to be in good health.[21]

   [21] See paragraph 32 of her affidavit

2. Mr Penlington is very nearly 47 years old.  In his affidavit, he claims to “struggle to deal with stressful matters” and he says that he suffers from insomnia and depression.[22]

   [22] See paragraph 18 of his affidavit

3. It was very clear from his presentation in court late last year and at the hearing in March this year that his mental health is not good.  Indeed, it was quite clear from his presentation on 13 November 2013 that the matter could not proceed at that time and I made an order that Mr Penlington see his doctor as soon as practicable for treatment and/or referral in relation to his mental health difficulties.  Although he did not provide any affidavits from his doctor or psychologist, I accept that he has been consulting them and he is not currently in a fit state to be employed.

4. However, I note that Mr Penlington is a qualified (occupation omitted) and he also has (omitted) qualifications which have enabled him to be employed in that capacity as well.  I do not know how long it will take Mr Penlington to get over his current mental health difficulties, but it is pleasing to note that he has sought treatment for those difficulties.  It is clearly in his interests to continue with that treatment.

5. It is to Ms Molnar’s credit that she sought to improve her financial position and increase her ability to support the children by undertaking training to become a (occupation omitted).  She graduated at the end of May 2013 and has been employed in that capacity by (employer omitted) since that time.[23]  She had been previously employed part-time as a (occupation omitted).

   [23] See paragraph 28 of her affidavit

6. Mr Penlington was unemployed at the time of the hearing and his only income came from Government benefits.  It is not surprising therefore that he was unable to meet the mortgage payments in relation to the Property H and Property D properties.    

7. Neither party has re-partnered, so they are only responsible for supporting themselves and their two children.  In this regard, I note that while Ms Molnar’s three other children live with her, they are employed and each is contributing $120 per week towards the rental of the home in which they are all living.

8. At this time, Ms Molnar is providing all the necessary financial support for the parties’ two children.  That will presumably continue until such time as Mr Penlington can get “back on his feet”, both emotionally and financially.  Unfortunately, I do not have a crystal ball so there is no way of knowing how long that will take.

9. Notwithstanding that, I am of the view that it is appropriate that there be an adjustment in Ms Molnar’s favour of 5% of the net value of the asset pool.  That is primarily because Ms Molnar is likely to be the main financial supporter of the children for some time yet.

Conclusions

1. As can be seen from what I have stated above, I would have considered it appropriate for Mr Penlington to receive assets worth 65% of the net value of the asset pool on the basis of his more significant contributions.  However, I have also stated that there should be an adjustment under subsection 90SF(3) in favour of Ms Molnar of 5%.  That means that Mr Penlington should receive 60% and Ms Molnar should receive 40% of the net value of the asset pool.

2. The net value is $431,089, so Ms Molnar’s net entitlement of 40% of that is $172,436.

3. If Ms Molnar retains her Commodore and the trust money held by her solicitor, she will have assets with a gross value of $133,143.  However, she will still need to pay her (omitted) Finance debt and the school fees which total $27,785.  Consequently, the net value to her of the Commodore and the trust money is $105,358.  That means that she needs a further $67,070 to provide for her 40% entitlement of $172,436.  I will therefore round that down to $67,000 and require Mr Penlington to pay that to her within six months.

4. I have quite deliberately chosen a relatively lengthy period for Mr Penlington to raise the necessary funds.  That is because he was unemployed at the time of the hearing and it may take some time for him to persuade a commercial lender of funds to advance him the required amount.  However, I note that he will retain the Property D property which is unencumbered and has an agreed value of $365,000.  I assume that he would be able to use that property as security for a long term loan.  However, Mr Penlington needs to be aware that if he does not pay $67,000 within the required period, in addition to the costs that I mention below, the property at Property D will have to be sold. 

5. Ms Molnar will be entitled to be paid the trust fund balance immediately.

6. In relation to the past costs orders, it would be quite inappropriate to include any of those sums already awarded for costs against Mr Penlington during these proceedings as part of Ms Molnar’s entitlement to an order adjusting property interests under Part VIIIAB of the Act. Costs are awarded under section 117 of the Act (which is to be found in Part XV) and I accept Mr Crozier-Durham’s submission that there is no jurisdictional basis to discharge the costs orders that have already been made. For the record, those costs orders totalling $18,060 were made as follows:

   ·$1,650 ordered and quantified on 14 December 2012;

   ·$8,900 ordered and quantified on 5 June 2013; and

   ·$7,510 ordered on 13 November 2013 and quantified on 20 March 2014.

7. Having said that, I consider that I do have the power to extend time for payment of those costs and I will provide for that in the orders that I make.  In short, Mr Penlington will have six months to raise a total of $85,060 (being $67,000 as Ms Molnar’s further property settlement entitlement and $18,060 in costs already ordered).

8. Through her counsel, Ms Molnar sought some detailed and quite complex orders in relation to a sale of the Property D property in the event that Mr Penlington defaults on his obligations under the orders of this Court.  I do not consider it necessary to make such detailed and complex orders at this time, and my reasons for that are:

   a)the parties were able to cooperate in relation to the sale of the Property H property pursuant to less complicated orders made on 30 August and 13 November 2013; and

   b)I will grant the parties liberty to apply in relation to the implementation of any sale of the Property D property, should that become necessary.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Roberts

Associate: 

Date: 30 April 2014