Skipper and Skipper

[2017] FamCA 192

FAMILY COURT OF AUSTRALIA

SKIPPER & SKIPPER [2017] FamCA 192

FAMILY LAW – COSTS
FAMILY LAW – INJUNCTION - workplace

Family Law Act 1975 - Sections 114 and 117

APPLICANT: Mr Skipper

RESPONDENT: Ms Skipper

FILE NUMBER: SYC 8343 of 2016

DATE DELIVERED: 10 March 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 10 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Coulton

SOLICITOR FOR THE APPLICANT: D C Chambers & Associates

COUNSEL FOR THE RESPONDENT: Mr Gould

SOLICITOR FOR THE RESPONDENT: Southern Waters Legal

Orders

1. The application for injunctive relief sought by the husband is dismissed. 

By correction made on 23 March 2017 pursuant to Rule 17.02 with the consent of the parties

1. The husband is to pay half of the wife’s costs of today as agreed within a period of 14 days and absent agreement as either taxed or assessed. 

2. The interim orders sought by the wife in her Amended Initiating Application are referred to the Case Coordinator for the allocation of a further date for dealing with the wife’s application. 

3. The wife will file and serve any amendment to the interim orders sought in that Amended Initiating Application within seven days of today’s date.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Skipper& Skipper has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8343 of 2016

Ms Skipper

Applicant

And

Mr Skipper

Respondent

REASONS FOR JUDGMENT

Injunctive relief

1. There was one issue for determination today and that issue related to the presence of the wife in the workplace that the parties share.  This matter was before me as a consequence of Orders made by Justice Johnston transferring the husband’s application for an injunction to restrain the wife from entering into the workplace into the short matters list. 

2. The orders sought by the husband were varied today in order to provide an alternative.  Each of the alternatives provided for the wife to be excluded from the work place.  One of those alternatives allowed her to continue to complete work while excluded from the workplace.

3. The powers identified to me for the making of the order are contained at s 114 of the Family Law Act 1975. There was some dispute as to the particular power to be relied upon. Initially for the husband s 114(1)(e) was relied upon in that it was asserted that the injunction sought is in relation to the property of the party to the marriage. The applicability of subsection (e) was disputed by the wife and in the alternative, the husband nominated s 114(1)(c) which relates to the restraint of a party to a marriage from entering into the place of work of the other party to the marriage. While there was some dispute as to precisely which paragraph in s 114(1) might enable the making of the injunctive relief sought by the husband there was ultimately no dispute that I have jurisdiction to make such an order should I consider it to be proper.

4. The key question then dissolved down to the substance put forward to justify the making of an injunctive order.  There was one justification that was advanced.  That justification was that it is necessary for the protection of the property of the parties that the injunction be made to restrain the wife from entering into the workplace.  The particular protection of the property is to protect the value of the property so that it is not lessened.  The potential lessening of the value of the property is, on the husband’s part, said to be fuelled by the conflict between the husband and the wife and the effects that has in the workplace.  The proposition advanced for the husband is that the removal of the wife from the workplace would be protective of the value of the property because it would remove the face to face conflict between the parties within the workplace.  It has to be said that is it clear on either of the parties cases that there are ugly circumstances at present within the company workplace and that those circumstances flow from the breakdown of the relationship between the husband and the wife. 

5. It is not clear at this interlocutory stage of the proceedings who is, or who is not, at fault.  Each lays the disquiet in the workplace at the feet of the other and each gives support for that view in the evidence that each has had admitted in this case.  However, it would be naive to suggest that the exclusion of the wife from the workplace would end the issues that make that work place at present poisonous.  For the wife, evidence has been led to suggest that there is at least one staff member who asserts that she is troubled by the conduct of the husband.   There is also evidence that the wife’s daughters and son in law work in the same workplace, the daughters working in the same office.  The removal of the wife may certainly remove some conflict, that is the direct conflict between the husband and the wife but it is both speculative and contentious to say that that would restore a level of harmony to the workplace. 

6. It is also contentious as to whether or not the work that the wife currently undertakes could be undertaken remotely from the office.  It is also contentious as to the extent of the work undertaken by the wife, that is the extent of her role within the business and the effects that she has had on the business development, and so it is contentious as to the adverse impact that may be felt by the business should she be removed from the workplace, even if she is able to undertake at least part of that work from the home. 

7. In summary, it may be said that the effect of the removal of the wife from the workplace may improve the workplace, but I cannot tell if that would provide a net improvement.  Even if it does remove the direct husband and wife conflict, it may well cause other harms to the running of the business.   Consequently what is not established in this case is the substance put forward as justifying the injunctive relief.  That is, what is not put forward is a sufficient basis for me to find that it would be protective of the asset for the injunctive relief to be given.  Absent the justification I decline to give the injunctive relief sought, that is the application by the husband is dismissed. 

Costs

1. An application for costs has been made by the wife against the husband.  The starting point according to s 117 of the Act is that each party is to bear their own costs, subject to there being circumstances to justify the making of an order for costs.  Here the only matter that was listed for determination was a single issue of whether or not the wife ought be restrained from entering the workplace, that being an issue that was prosecuted by the husband.  That was the only issue that was transferred into the short matters list by Justice Johnston.  In that matter the husband has been wholly unsuccessful in relation to the application. 

2. This is a matter which justifies a departure from the usual rule that each party bear their own costs.  However, much of today was occupied in dealing with an attempt on the part of the wife to add onto today’s proceedings her applications for relief including injunctive relief.  Those were matters which were not brought to the attention of the husband until 9pm last night.  The wife was unsuccessful in her attempts to have those matters dealt with, and had provided little notice.  A significant portion of the evidence that she sought to rely upon was filed late in the proceedings.  It may be said that she was unsuccessful in respect of this aspect of her application.

3. This is not a circumstance that would completely disentitle her to a cost award under the circumstances.  The matter would not be before the Court today but for the application that was made by the husband.  However, those circumstances do mean that the wife ought not receive the whole of the costs of today. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 10 March 2017.

Associate: 

Date:  23 March 2017