Aguilar & Aguilar
[2009] FamCA 1343
•4 December 2009
FAMILY COURT OF AUSTRALIA
| AGUILAR & AGUILAR | [2009] FamCA 1343 |
| FAMILY LAW – SPOUSAL MAINTENANCE |
| APPLICANT: | Mr Aguilar |
| RESPONDENT: | Ms Aguilar |
| FILE NUMBER: | SYC | 1468 | of | 2008 |
| DATE DELIVERED: | 4 December 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | STEVENSON J |
| HEARING DATE: | 14 & 15 September 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gould |
| SOLICITOR FOR THE APPLICANT: | Newnhams Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Johnston |
| SOLICITOR FOR THE RESPONDENT: | Christopher Mackay Lawyer |
Orders
1.1 That the wife pay to the husband spouse maintenance of $250 per week for a period of 2 years from the date of these orders, with the first such payment to be made within 7 days unless the wife exercises the option provided in order 1.2.
1.2That, in the alternative and at her written election, the wife pay spouse maintenance to the husband in a lump sum of $25,145 no later than 31 January 2010.
1.3That the wife shall inform the husband in writing, within 14 days of the date of these orders, whether she elects to pay periodic or lump sum spouse maintenance.
2.1 That the husband shall vacate the property situate at M within 1 calendar month of receipt by him of lump sum spouse maintenance of $25,145.
2.2That the husband shall otherwise vacate the said property within 3 months of the date of these orders.
That all outstanding applications and responses are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Aguilar & Aguilar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1468 of 2008
| MR AGUILAR |
Applicant
And
| MS AGUILAR |
Respondent
REASONS FOR JUDGMENT
the proceedings
The applicant husband, Mr Aguilar, sought orders pursuant to section 79A to set aside orders for settlement of property made by consent on 29 January 1991 and 21 November 1997. If successful, he sought orders to the effect that the wife sell a property at M (‘the M property’) and pay to him one half of the net proceeds.
In the alternative, the husband sought an order that the wife pay to him lump sum spouse maintenance of $1,750,000. In the further alternative, he sought an order that the wife pay to him periodic spouse maintenance of $1,000 per week.
The respondent wife, Mrs Aguilar, sought that all of these applications be dismissed. She also sought an order that the husband vacate the M property within 14 days.
Background
The husband, who is now 68, and the wife, who is now 61, commenced cohabitation in July 1980. The husband lived in rented accommodation and worked as a salesman. The wife lived in the M property and had part-time employment in a travel agency.
The wife’s father transferred the M property to her and her first husband in 1977. She acquired her ex-husband’s interest in the property when their marriage broke down in 1979. It was agreed that the property was valued at $200,000, and was subject to a mortgage of $33,000 or $40,000, when the parties commenced cohabitation.
Both parties continued in paid employment after they began to live together. Ultimately the husband admitted that he was a regular gambler from the beginning of the parties’ relationship. There was a significant issue as to the extent to which gambling affected his financial capacity to contribute to the expenses of the household.
The wife left the paid workforce when the parties’ only child was born in 1982. She resumed part-time employment in the mid-1980s.
In July 1984 the parties moved to B, where the wife’s parents or their company E Pty Limited owned a business. They lived in the business premises and undertook various roles in the running of the business for several months. While they were in B, the wife’s father paid the mortgage and all other outgoings in respect of the M property.
When the parties left B the wife’s father gave to each of them an amount of $5,000 and the husband also received a Holden car. The wife used her $5,000 to discharge a loan on her Honda motor vehicle and to carry out repairs to a wardrobe in the M property. The husband did not explain what he did with his money, which he maintained was an amount of $4,000 rather than $5,000.
In December 1987 the wife’s father paid $27,125 to discharge the mortgage on the M property, a fact of which the husband claimed he was unaware. He did not suggest that he made any contribution to the funds required to discharge the mortgage.
The parties first separated in December 1990 or January 1991. The husband left the M property and moved to rented accommodation. On 29 January 1991 orders were made, by consent, for settlement of property. These orders provided, inter alia, that the wife pay $36,000 to the husband and that he vacate the property immediately upon receipt of that sum.
The wife’s father paid the sum of $36,000 to the husband by 31 January 1991. In March/April 1991 the parties reconciled and again lived together in the M property.
In 1996 the wife’s parents financed extensive renovations to the M property. These renovations took place over a period of about eight months, during which the parties lived on a rent-free basis in a home owned by the wife’s parents.
In March 1997 the wife’s father died. Shortly afterwards her mother gave to each of her and her brother a sum of $100,000. The wife did not take her gift as a lump sum but withdrew money from the account of E Pty Limited from time to time.
In 1997 the parties separated again. On 9 October 1997 they executed terms of settlement which varied the orders of 29 January 1991, so as to provide that the wife pay to the husband a sum of $50,000 within seven days. The orders provided that the husband vacate the M property upon receipt of this sum.
The husband travelled to Melbourne when he received this money but soon returned to Sydney. Late in 1997 he returned to live in the M property. For some months, the parties occupied separate bedrooms.
At the end of 1998 the parties started to occupy the same bedroom. In her oral evidence the wife said “we reconciled after about 6 or 8 months”.
The husband resumed employment as a salesman when he returned to Sydney. According to the wife, he gave to her sums of $200 or $250 per week and said “this is my board”. The husband denied that he called these weekly payments “board”. The parties’ daughter said that she often heard her father refer to this money as “board”.
In mid-1999 the husband was diagnosed with throat cancer. He commenced chemotherapy in August 1999 and was unable to work for approximately 12 months. During this period he received sickness benefits.
When the husband returned to work, he resumed making the payments of $200 or $250 per week. The wife claimed that these payments were irregular and, again, there was a dispute as to whether he referred to this money as “board”.
In 2001 the wife was retrenched from her employment and received a severance payment of $24,000. She used this money to meet her living expenses.
In June 2003 the wife and the parties’ daughter opened a store in M. They operate this business as a partnership.
In October 2006 the husband retired from the workforce and began to receive a social security pension. He moved into a different bedroom and there was no issue that the parties were separated from that point.
On 17 June 2009 the wife filed an application for divorce, which was listed for hearing on 30 July 2009. I was not informed of the outcome of this application.
The Section 79A Application
The Outline of Case document submitted on behalf of the husband stated clearly that he sought to set aside or vary the orders made by consent on 29 January 1991 and 21 November 1997 pursuant to section 79A(1A) of the Family Law Act. This section provides:
Section 79A(1A): A court may, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
The husband’s case was that, since October 1997, the conduct of the parties was sufficient to establish “at least an implied consent to the setting aside of the orders”. In an Outline of Case document counsel for the husband wrote:
“It is submitted that in the circumstances of this case, the court will find the conduct of the parties since October 1997 such as to establish at least an implied consent to the setting aside of the orders identified. The husband contends such conclusion arises inter alia from:
1. The consensual resumption of cohabitation in August 1998, following the wife’s request, and the parties’ subsequent cohabitation for a period of some 8 years until October 2006;
2. The contribution by each of the parties to the general living expenses of the household comprising the husband, wife and child of the marriage;
3. The purchase by the husband of a substantial number of items for the parties’ home over the period; and
4. The mingling of the parties’ expenses, both as set out above and in relation to their entertainment and general living.”
The case for the respondent, the wife, was summarised in an Outline of Case document submitted on her behalf, where her counsel wrote:
“…..to make out a case of consent by conduct, the conduct relied upon must provide clear support for consent.”
Counsel also wrote:
“Here there is no significant intermingling of finances. There is certainly nothing even remotely approaching the clear case in Sommerville where what was the entitlement from property settlement of one party was largely exhausted on a venture that was not solely hers.
Here, the only evidence of financial contribution appears to have been coupled with the proposition of a contribution of board. The connotation is that it is a contribution to cover the expenses referable to the person who makes it rather than a contribution to any other person’s expenses. In other words, the recipient receives no direct benefit from the payment. There is no relevant financial intermingling.”
Counsel for the wife referred to the decision of Coleman J in R & R [EA69 of 2001], which was an appeal against orders of the Federal Magistrates Court. Coleman J said:
“…..there are other views which could have been taken of the evidence of resumption of cohabitation for over three years. The conclusion that the resumption for over three years could ‘only’ be seen as a consent by the parties to the earlier property orders being discharged was, with respect, not open…..”
His Honour also said:
“…..there could well be a case where the resumption of cohabitation may have been for a matter of weeks or days but the facts and circumstances surrounding that resumption are such as to render it abundantly clear that the parties intended to consent to old settlements of property being set aside or orders discharged.
Conversely, it is quite conceivable that parties could resume cohabitation for decades but conduct their finances in an entirely separate way, consistent with the terms and conditions of a previous settlement of property. …..the test is not how long parties resume cohabitation but, clearly, that is a fact or circumstance.”
Counsel for the husband referred, inter alia, to decisions of the court in McCabe & McCabe (1995) FLC 92-634; Sommerville & Sommerville (2000) FLC 93-042 and R & R [EA69 of 2001]. It is useful to consider the facts of these three cases in comparison to the circumstances which exist in the present proceedings.
In McCabe & McCabe the parties married in 1982 and separated in 1989. On 12 July 1989, orders were made pursuant to section 79, to the effect that the wife pay to the husband the sum of $50,000 and that he transfer to her his interest in the former matrimonial home.
In September 1989 the parties reconciled and resumed living together again in their former matrimonial home. On 29 September 1989 they forwarded to the court a letter in these terms:
“Settlement order property, 1 Minerva Court, Eatons Hill. Sworn in Family Law Court 12.7.89. I, Shirley Florence McCabe; I, Norman William McCabe have the above date decided to reconsider our marriage commitment and wish to advise that we will be residing in our home at Eatons Hill, therefore, not proceeding with settlement.”
They then cohabitated until their final separation in September 1993. Neither party took any steps to implement the terms of the 1989 orders.
The Full Court held that it was open to the trial judge to conclude that these circumstances disclosed a consent by the parties to set aside the orders. Inter alia, the Full Court said:
“In cases of this nature conclusions about intention which should be attributed to the parties will depend upon the particular circumstances of each case. That material would not necessarily be confined to the initial decision to reconcile or, as in this case, to write to the court. The intention may crystallise into a more precise form as time progresses and as the parties’ reconciliation continues and they conduct their lives together, including their financial affairs, so that it becomes inconsistent with any other conclusion.”
In Sommerville & Sommerville the parties began a de facto relationship in 1979 and married on 27 March 1983. They first separated on 10 May 1991 and subsequently made several unsuccessful attempts at reconciliation. Orders for property settlement were made by consent on 17 December 1991. The parties carried the terms of these orders into effect, by way of a distribution of assets between them.
The parties had agreed to reconcile by June 1992. They began to live together again in October 1992.
After June 1992 the parties agreed that they would each sell certain parcels of real estate which they had received pursuant to the property settlement. In August 1992 they jointly purchased vacant land, using money which they borrowed together. It was their clear intention to construct a new home for themselves on this land.
As part of the property settlement the wife took a menswear business, which ultimately encountered financial difficulties. On her version of events, it was for that reason that she transferred her interest in the land to the husband in June 1993. He denied this version and gave a different account of the reasons for the transfer of the vacant land. The court preferred the evidence of the wife as to the reasons for this transfer.
After the sale by the husband’s company of another parcel of real estate in 1994, he or the parties jointly started a business in mid-July 1995. There was a dispute as to whether this business was a joint venture or was operated by Mr Sommerville, with Mrs Sommerville as an employee only. The court found that the parties conducted this business as a joint enterprise.
The financial fortunes of the menswear business continued to deteriorate and the wife entered into voluntary bankruptcy in October 1995. The parties finally separated in October 1996, when she left the former matrimonial home.
The court determined that there were “strong grounds for concluding that the parties, by their conduct, consented to the setting aside of the original order”. The following considerations were regarded as significant:
· the parties agreed to sell two properties and apply the proceeds toward the acquisition of a new home for themselves
· they agreed to purchase vacant land for their new home in joint names
· the husband lived with the wife on a rent free basis for three years, in a home which she had acquired as part of their property settlement
· the wife applied money from the menswear business for “joint purposes” and the acquisition of the parties’ new home.
· the parties commenced a business which they operated jointly for 12 months.
In R & R the parties began cohabitation in mid-1985, in a home owned by the husband. After a separation in June 1986, they reconciled in 1987 and married in December 1989. They separated again on 1 November 1993 and entered into consent orders for property settlement on 29 April 1994.
Pursuant to these orders the husband paid to the wife an amount of $40,000 in May 1994 and she then vacated the former matrimonial home. The parties took a holiday together early in 1995. In October 1996 the husband travelled to the United Kingdom and, in his absence, the wife moved back into the former matrimonial home.
When the husband returned from the United Kingdom in November 1996, the parties resumed a sexual relationship. They both remained in the former matrimonial home until they separated finally.
The proceedings before Coleman J were an appeal from the decision and orders of a Federal Magistrate, who had expressed the view that a resumption of cohabitation for over three years could “only” be seen as a consent by the parties to the discharge of the property orders. Coleman J disagreed and observed:
“…..the very issue is whether in all the circumstances, a powerful one of which was the resumption of a relationship for over three years, it was reasonable to infer that the parties intended to consent to have the orders discharged.”
I have referred above to further observations made by Coleman J as to the significance of a resumption of cohabitation, in the context of an application pursuant to section 79A(1A):
In the present case there is no doubt that there was a resumption of cohabitation between 1998 and 2006. The question is whether all of the circumstances, including this resumption of cohabitation, support a reasonable inference that the parties intended to consent to have the orders for property settlement set aside or varied. One significant, but not conclusive, consideration is the extent to which they intermingled their finances during the third period of cohabitation in comparison to the two earlier phases of the relationship.
It was agreed that the parties conducted a joint account during their first period of cohabitation. They both deposited their earnings into this account and used these funds to meet household expenses. The wife maintained that the husband made irregular contributions to the joint account. That may well have been the case, as he ultimately admitted that he indulged in substantial gambling for most of the relationship. The wife admitted that the husband paid some utility bills during this first period of cohabitation.
During this phase of the parties’ relationship the husband helped the wife’s father to build a stone wall at the M property. He repainted the premises in 1991 and painted the inside of the harbour pool at the home during the 1980s. They moved to B and worked in the business owned by the wife’s parents prior to their first separation.
These considerations, together with the birth of the child in 1982, suggest that the husband and wife conducted their affairs as a joint venture during the first period of cohabitation. They received substantial financial assistance from the wife’s parents prior to their first separation.
During the second period of cohabitation both parties again contributed to the household expenses, although the wife maintained that the husband’s contributions were again made irregularly. As noted, his capacity to contribute to the expenses of the family may well have been compromised by a chronic pattern of gambling.
During this period the wife took out a personal loan of $3,000 and used the money to pay the husband’s dental bill and accrued golf club fees. All of these facts suggest that there was an intermingling of the parties’ finances during this period.
In 1996 the wife’s parents financed extensive renovations to the M property. They also met the cost of the child’s attendance at a private school during the second period of cohabitation. It could only have been that they chose to inject substantial funds into the family unit and the M property, with full knowledge that the parties’ relationship was again on foot.
During the third period of cohabitation the husband was in gainful employment for approximately five or six years. It seems that he made some contribution to the expenses of the household, by way of payments of between $200 and $250 per week. Once again, the wife said that these payments were irregular and the husband admitted that he continued to gamble during this period. In my view it is likely that he did not always have sufficient funds available to make these payments to the wife.
As noted, there was an issue as to whether the husband himself characterised these payments as “board”. He denied that he used this word but both the wife and the parties’ daughter strongly maintained that he did so. Although daughter was clearly angry with and disappointed in her father, she impressed me as a credible witness and I prefer her evidence on this issue.
I am satisfied that the husband did call his payments to the wife “board”. I am satisfied further that this description was appropriate, given that these payments were likely to have covered only his own expenses within the household. It is noteworthy that the husband deposed in his Financial Statement that he spends $250 per week on “food”. The wife’s unchallenged evidence was that she paid all outgoings and utility bills during this period.
It is true that the husband paid the cost of dinners in restaurants which the parties enjoyed together during this period. On the other hand, there was no suggestion that he made any contribution to the regular running expenses of the household or that he effected any improvements to the property during this period.
The husband did not explain what he did with the $50,000 which he received by way of the second property settlement. He admitted that he attended a casino in Canberra on his way to Melbourne at the beginning of the separation period, thus it seems highly likely that some of these funds were consumed by gambling.
The husband attempted to suggest that he purchased a number of household appliances and furnishings during the third period of cohabitation. Ultimately, however, this evidence was demonstrated to be largely inaccurate or exaggerated. For example, he claimed to have purchased a dining room mirror which he identified when shown a photograph. The same picture, however, showed the child as a baby, which made the husband’s evidence impossible to accept.
The wife said that the parties “lived separate lies” during the third phase of their relationship. It seems to me that this description is reasonable and accurate. I am satisfied that the husband’s financial contribution to the household was irregular and, at best, would have covered only his own expenses. There were no significant injections of funds into the family unit or the M property from the wife’s mother, as had been the case during the first two periods of cohabitation. Essentially, there was no intermingling of the parties’ funds, and they embarked on no joint enterprises as a couple. The husband admitted that he has paid no money whatsoever to the wife since 2006, when he retired and began to receive a social security pension.
The wife was obviously very angry with the husband but, nonetheless, I am persuaded that her evidence more accurately described the financial history of the relationship. As noted, her evidence was corroborated by that of the parties’ daughter on the issue of payment of “board” by the husband.
For these reasons, I am satisfied that there were significant differences in the nature of the parties’ third period of cohabitation in comparison to the first and second phases of their relationship. I am satisfied, and I find, that their conduct is insufficient to imply a consent to set aside or vary the existing orders for settlement of property, for the purposes of section 79A(1A). I will thus dismiss the application brought under section 79A.
The Application for Spouse Maintenance
The court’s power to make an order for spouse maintenance is contained in section 72, which provides relevantly as follows:
1) A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
It is thus necessary for the husband to establish that he is unable to support himself adequately because of his age and incapacity for gainful employment or for any other adequate reason. If he succeeds in establishing that proposition, it is necessary that he also demonstrate the extent to which the wife is reasonably able to maintain him. Once these two threshold issues are established, the court is empowered to make such order for spouse maintenance as it considers “proper” in accordance with section 74.
In determining the two threshold issues it is necessary to consider any relevant matter referred to in subsection 75(2). I will refer only to such considerations in that subsection which appear to me to be apposite to the present proceedings.
Section 75(2)(a): the age and state of health of each of the parties;
Section 75(2)(b): the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The husband is 68 years of age and has been retired from the paid workforce for three years. He was prevented from working for 12 months, while undergoing treatment for cancer, when he was about 58 years of age. It was submitted on behalf of the wife that he failed to establish a reason why he cannot engage in gainful employment. I regard this proposition as unwarranted. The husband is 68 years old and is entitled, in my view, to have retired after a lifetime of employment. Obviously, he could have made more productive use of his income over the years but that is not the present issue.
In his Financial Statement sworn on 30 June 2009 the husband deposed that his only income was a Social Security pension of $305 per week. Pursuant to section 75(3) his eligibility for an income-tested pension is to be disregarded for the purposes of section 74. In the past he has earned irregular income as a chauffeur and from trading on behalf of fellow members of the Golf Club. His unshaken evidence was that he last worked as a chauffeur in late 2008 or early 2009.
The husband’s Financial Statement indicated that he has savings of $362 and owns a 1992 BMW motor vehicle, the value of which he assessed at $4,000. He owes a total of approximately $27,000 to various friends. He is obviously in a parlous financial position.
The wife is 62 years old and receives an income of $586 per week by way of director’s fees from the company E Pty Limited. She derives benefits from the retail business, to which she ascribed a value of $37 per week. Her total gross weekly income is thus $623.
The wife’s recurring expenses of income tax, rates, insurance and car registration amount to $108 per week. She also claimed that she expends $165 per week on a credit card debt. I will disregard this amount, as it is a non-recurring expense, for present purposes. She did not provide a breakdown of her remaining weekly expenditure, to which she simply ascribed a figure of $225.
The wife owns the M property, which has an agreed value of $2.8 million. She may owe to her mother approximately $125,000. On any view, therefore, the wife holds net assets of substantial value.
Section 75(2)(d): commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
The husband estimated his total weekly expenses at $433, which includes $63 for his golf club membership. Otherwise his listed expenses appear to be reasonable and, notably, did not include rent or utility bills.
The wife elected not to complete the section in her Financial Statement which sets out “average expenses” despite the fact that she faced an application for spouse maintenance. No explanation was advanced for her failure to complete this section of the prescribed form.
Section 75(2)(g): where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
At the conclusion of the proceedings the husband will be required to vacate the M premises. He will need to establish a home for himself and, clearly, he lacks the financial capacity to do so. The wife maintained that he could stay with friends or live with his mother in Italy but these contentions were nothing but speculation on her part.
Section 75(2)(o): any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
The wife allowed the husband to live in the M property for approximately 11 years. She made no attempt to have him vacate the property after the parties separated in 2006. She did not seek an order that he leave the premises in her response to his application pursuant to section 79A. In fact, that order was sought only at the commencement of the trial. Of course, an order was made for the husband to vacate the property in 1997 but I attach no significance to this fact in the context of the parties’ reconciliation.
The wife thus made an entirely voluntary choice to provide this level of support to the husband. She allowed him to believe that he could live at the M property indefinitely. In my view, the justice of the case requires these facts to be taken into account.
Having regard to all of these considerations I find that the husband is unable to support himself adequately within the meaning of section 72(1). On the basis of the wife’s net property, income and disclosed recurrent expenditure I find that she is reasonably able to maintain the husband, for the reasons set out below.
Leaving aside her alleged weekly credit card outlay of $165, the wife’s expenses amount to $333. For the purposes of this exercise, I have included the vague, unitemised figure of $225 per week. The wife can thus be seen to have an excess of income over expenditure of approximately $290 per week. I am thus of the view that a spouse maintenance order of $250 per week is justified, without having any regard to the wife’s substantial asset base.
The question then is what should be the duration of such an order and whether there should be any capitalisation, so as to allow the husband to take a lump sum. In light of the history of the wife’s voluntary provision of accommodation for the husband for 11 years, in the last phase of their relationship, it seems to me that a periodic spouse maintenance order for two years would be appropriate. The husband would then be able to re-establish himself in modest accommodation, which is a priority in terms of his current needs.
There is no magic in the selection of two years as the period for the duration of the spouse maintenance order. It is well recognised that such orders are usually for a limited duration and I am mindful of the “clean break principle”. On the other hand, it is necessary to select some period and two years commends itself as a practical outcome which should allow the husband to re-accommodate himself.
I will provide an alternative to the wife, whereby she may opt to discharge this periodic order on a capitalised basis. The election will be hers and not that of the husband. I accept the submission that there is no recognised basis for capitalisation, such as recalcitrance on the part of the payer. I simply provide this alternative to the wife, in case she wishes to discharge her obligations by way of one payment.
I have utilised capitalisation tables at a rate of 3%, in the absence of any submission as to the appropriate figure. The tables show that $100.58 would be required to generate $1.00 per week for two years, at a 3% capitalisation rate. The result is that $25,145 would be required to generate $250 per week for two years.
My orders will permit the wife to pay this sum, in full discharge of the spouse maintenance order, by 31 January 2010 if she so elects. I will permit the husband a further period of one month to vacate the M property. If the wife elects to pay spouse maintenance periodically, I will allow the husband three months to vacate the premises. It seems to me that he requires time to put together funds sufficient to enable him to arrange new accommodation. The wife does not seem to have been troubled by his presence in the home previously.
I certify that the preceding eighty one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson
Associate:
Date: 4 December 2009
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