HUSBAND SEEKS TO EXCLUDE WIFE FROM THEIR BUSINESS
Maring & Maring [2020] FCCA 2915 (5 November 2020)
This case is an application by the husband for interim orders that he be solely entitled to manage and operate a business to the exclusion of the wife.
Facts:
Husband asks for interlocutory/injunctive orders which would effectively remove the wife from and give him sole management in the interim of the parties business. Whilst the husband is the sole director of the parent company, the wife is an equal shareholder and hence has an actual and tangible interest in the business.
The husband says that his major role in operating the business is obstructed by the wife either actually or by reason of their non-communicative and mistrustful relationship. He says that he will report to the wife and her legal advisors frequently and regularly. He says that the wife would not be financially disadvantaged in that the husband has a ‘stake’ in maintaining the business as a successful operation in order to maximise its sale price.
The wife says that she is willing to remain in the role of bookkeeper pending finalisation of the property settlement; that she would work from home and without the need to see the husband; that they could communicate via email. Contrary to the husband’s evidence, the wife says at that the business is healthy and proceeding relative to previous years.
Issue: Should the wife be excluded in their business?
Held:
The wife gives credible and plausible responses to the particulars set out in the husband’s affidavit of her claimed obstruction of the business. The court is not able to find that the wife has acted in any way to put in jeopardy the operation of the business or even to impact negatively on its value.
The wife, or more particularly neither of these parties, should be removed in the interim from their precise and different roles within their joint business operation which is, of course, a valuable asset relevant to their property settlement. Rather, the court finds some merit in the submissions of Counsel for the wife that the wife’s removal will result in some, at least short term, jeopardy for the business in obtaining an alternative bookkeeper and involving the wife ‘handing over’ to that person. Any ‘conveniences’ relate to communication between the parties themselves and not directly in respect of the operation of the business in which, again, their roles are separate and not overlapping.
In summary, the applicant does not, discharge his onus to prove that the failure to grant the injunction will impact on the existence of or value of the assets. The court finds no relevant or factual connection to the children’s interests save and except they should not be exposed to any conflict between their parents.
Conclusion: The application for the injunction is dismissed.
