By Gianna Huesch
Separating couples who are in business together and share the same workplace may find a recent case in the family court of particular interest as it deals with the question of whether you can have your ex-partner banned from entering a shared workplace.
The case concerned a situation where a man and his ex-wife shared a business where, due to their marriage breakdown, the atmosphere in the work premises had become “poisonous” and “ugly”. The husband argued that this mood in the company workplace was damaging the business (thereby potentially reducing its asset value). He argued that removing the “face to face conflict” between him and his ex-wife was necessary to protect the business.
The judge however found that it was not certain that removing the ex-wife from the workplace would result in an improvement in the atmosphere as her presence was unlikely to be the sole cause of the “disquiet” in the workplace. The judge termed it “naïve” and “speculative and contentious” to argue that simply removing the wife from the workplace would solve all the business’s cultural problems, even if it did remove some direct conflict between the former couple.
The judge noted that the wife’s daughters and a son-in-law continued to work for the business. He also noted that banning the ex-wife from the work premises may in fact be detrimental to the running of the business, and he accepted that she was unable to perform her duties elsewhere while remaining employed by the business.
The case turned on whether the family court had jurisdiction to make orders that would ban the woman from the work premises and if the court did have such jurisdiction, would a ban be “proper”.
It was confirmed by the judge that he did have jurisdiction under section 114(1)(c) of the Family Law Act 1975, relating to “the restraint of a party to a marriage from entering into the place of work of the other party to the marriage”, because the Act does not exclude this from being a shared workplace.
As to whether a ban would be “proper”, for the reasons given by the judge (ie, that it was not certain that banning the ex-wife from the workplace would “restore harmony” to the business, due to other factors also influencing the atmosphere, and because a ban could in fact harm the business) the judge decided the proposed ban would not be “proper” and dismissed the ex-husband’s application on the issue, also awarding him half the wife’s legal costs.
It therefore seems that had there not been other factors (such as the employment of the other relatives, or the fact that the wife was apparently unable to complete her duties for the business at a different premises), the man may well have succeeded in his bid. In other cases, then, such a ban may be deemed to be “proper”.
Do you need advice in relation to a family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Read the case: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2017/192.html
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