Skipper and Skipper (No 2)

[2018] FamCA 308

FAMILY COURT OF AUSTRALIA

SKIPPER & SKIPPER (NO 2) [2018] FamCA 308

FAMILY LAW – INJUNCTION – where wife may be diverting money from the business – where wife restrained from attending upon the business premises

APPLICANT: Ms Skipper

RESPONDENT: Mr Skipper

FILE NUMBER: SYC 8343 of 2016

DATE DELIVERED: 2 March 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 2 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould

SOLICITOR FOR THE APPLICANT: Southern Waters Legal

COUNSEL FOR THE RESPONDENT: Mr Lloyd, SC

SOLICITOR FOR THE RESPONDENT: D C Chambers & Associates

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The Wife is restrained from attending at the business premises at the Suburb D property from the making of these orders.

2. The Wife is restrained from contacting or communicating with:

   a)any existing employee of the business; or

   b)any existing customer of the business; or

   c)any existing contractor of the business.

3. Judgment is reserved to 4pm on 7 March 2018.

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 (No. 2) 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

1. Competing orders are sought between the parties today dealing with whether or not the spousal maintenance and employment of the Wife will continue, whether her access to the business will continue, and what restraints might be put upon the Husband in the operation of the business in particular to facilitate the Wife’s ongoing involvement with the business.

2. The matters raised by the parties involve some factual complexity which will require further consideration before the delivery of judgment.  However, one matter looms largest requiring an immediate order to be made, although made in the context where it must be accepted that a consideration of the matter as a whole may mean that whatever resolution is put in place at this point is not the resolution of the matter when judgment is handed down.  At present it is anticipated that judgment will be handed down on Wednesday, 7 March 2018 at 4pm. 

3. A matter has arisen late in these proceedings, first brought to the attention of the Court and the parties on Wednesday afternoon when the proceedings were due to be conducted on the Friday.  That particular matter was raised by the Husband alleging that the Wife had fraudulently taken monies from the company which is the primary subject matter of the proceedings. 

4. The Husband is the sole director of that company and, subject to a trust structure, was the sole shareholder of the company.  It is accepted that he has the relevant control of the company for it to remain an asset within the pool. 

5. The Wife has been an employee within that company since 2009. 

6. The parties have engaged in previous litigation whereby the Husband sought to exclude the Wife from the operation of the company; that application was previously refused.  However, the matter that was raised on Wednesday related to the Wife taking monies that she was not entitled to from the company.  The allegation was that invoices for work that the company had completed, the proceeds of such were funnelled into a bank account not related to the company and then subsequently used by the Wife.  The Wife by her affidavit filed 1 March 2018 accepts that this was so and accepts that it was to the tune of some $16,000. 

7. Until now the Wife has been working within that business and running it seems a portion of that business.  The parties have been operating different portions of business from different premises.  On her account of the operation of the business the Wife holds a position of considerable trust and control of the operation of an arm of the business. 

8. The funnelling of the $16,000 undermines at this stage any confidence that she could remain within the business without doing harm to the business.  As I have already indicated a more fulsome consideration of each of the factors carefully raised by her counsel and by the Husband’s counsel may cause a different conclusion to be arrived at.  However, the recent discovery of that funnelling of $16,000 provides considerable force to the application of the Husband that the Wife should be excluded from the business pending the delivery of judgment.  I will accede to that application.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 2 March 2018.

Associate: 

Date:  10 May 2018