OSFERATU & OSFERATU

[2015] FamCA 441

FAMILY COURT OF AUSTRALIA

OSFERATU & OSFERATU [2015] FamCA 441

FAMILY LAW – LEGAL PRACTITIONERS – Where injunctive relief sought – Application to restrain husband from retaining solicitors – Where the solicitor was previously a member of the firm retained by the wife and is now a member of the firm retained by the husband –The appropriate test to apply is as set out in McMillan and the applicant has satisfied the test – Where there are no disentitling circumstances –The wife has established her entitlement to the relief sought.

Family Law Rules 2004, r 8.03

Drover and Glasson and Anor [2014] FamCA 714
Kallinicos v Hunt [2005] NSWSC 1181
McGillivray v Mitchell (1998) FamCA 96
Pond and Thurga (No 2) [2007] FamCA 587
Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501
Volker and Anor [2013] FamCAFC 169

APPLICANT: Ms Osferatu

RESPONDENT: Mr Osferatu

FILE NUMBER: SYC 2318 of 2011

DATE DELIVERED: 12 June 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: Foster J

HEARING DATE: 1 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT: Mr Kearney SC

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

1. That the husband be restrained from further instructing or retaining John Barkus, Paul Doolan, Irene Morozov, Melinda Winning, Jayson McCauley, Carly Middleton and Jeff Marhinin trading as Barkus Doolan Family Lawyers.

2. That any application for costs be by way of Application in a Case supported by affidavit filed within 28 days from this date.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2318  of 2011

Ms Osferatu

Applicant

And

Mr Osferatu

Respondent

REASONS FOR JUDGMENT

1. The present application arises in the conduct of further litigation between the husband and wife in circumstances where the parties consented to final parenting orders on 21 November 2013 and to final property orders on 29 January 2014.   

2. Concurrently with the consent property orders the parties signed a deed of release under the Succession Act 2006 (NSW) with the intention of seeking approval to that deed by later application to the Supreme Court of NSW. An order approving the deed was made on 30 May 2014.

February 2015

1. On 3 February 2015 the husband filed an Application in a Case seeking certain parenting orders, summarised as follows:

   a)That the family therapist be replaced;

   b)That the child E resume time with the husband and the parties’ eldest son;

   c)That the paternal grandmother spend defined time with the children S and E;

   d)That the wife unblock the husband’s phone number on the child E’s phone;

   e)That the wife deliver up the child E’s mobile phone to the court.

2. The orders sought substantially relate to implementation or enforcement of final orders. The husband described his application as “enforcement”.

3. The…