Fennessy and Sanchez

[2007] FamCA 261

FAMILY COURT OF AUSTRALIA

FENNESSY & SANCHEZ [2007] FamCA 261

FAMILY LAW - COURTS AND JUDGES - Disqualification - Procedural fairness - Natural justice

APPLICANT: Mr Fennessy

RESPONDENT: Ms Sanchez

INTERVENOR: Department of Community Services

INDEPENDENT CHILDREN’S LAWYER: Williams Lawyers

FILE NUMBER: BRF 5353 of 2003

DATE DELIVERED: 28 March 2007

PLACE DELIVERED: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 8 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Self Represented

COUNSEL FOR THE RESPONDENT: Mr Canning

SOLICITOR FOR THE RESPONDENT: Andersons Solicitors

COUNSEL FOR THE INTERVENOR: Mr Jarro

SOLICITOR FOR THE INTERVENOR: Crown Law

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Linklater-Steele

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Williams Lawyers

Orders

1. That the husband’s application filed 14 February 2007 be and is hereby dismissed.

2. That the question of costs of 8 March 2007 is reserved until after delivery of final judgment in this matter at which time the matter may be relisted to argue that aspect.

3. That the father notify me within seven days of the date of these orders in writing as to whether or not he proposes to file written submissions in the matter. Should he so propose such written submissions are to be filed and served upon all other parties within 28 days of the date of these orders.

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: BRF 5353 of 2003

Mr Fennessy

Applicant

and

Ms Sanchez

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter came before me on 8 March 2007 for a hearing of the father’s application filed on 14 February 2007. The matter was mentioned by telephone on 28 February 2007 and fixed for hearing by means of video link between the Parramatta and Brisbane registries for 8 March 2007. The application sought the following orders:

   (1)That Collier J upon hearing this application disqualify himself from further participation in this continuing trial which commenced 16 July 2005 Case No BRF5353/03

   (2)That Collier J be injuncted from receiving submissions and closing arguments from any party in the trial proceedings and especially on 17 Jan 07.

   (3)That Collier J apart from hearing this application make no further directions or orders in the trial commenced 16 July 05 Case No BRF5353/03

The Father’s Material

1. The father in support of this application filed an affidavit sworn by him on 3 January 2007. Further and following a direction I made on 28 February 2007 he provided to counsel for the other parties and to myself a document he described as “Summary of additional grounds topics”.

2. In the course of his submissions in support of his application for me to disqualify myself it developed that the father was again seeking an order for him to spend time with his daughter born in December 1995 the child who is the subject of these proceedings.

Procedural Background

1. Both issues, that is the question of whether or not an interim order should be made in respect of the child spending time with her father and whether or not I should disqualify myself, were the subject of several applications by the father during the course of the trial. On the last occasion I heard similar applications and dismissed them, there was an appeal by the father to the Full Court in respect of my dismissal of both applications. That appeal was heard by the Full Court on 5 September 2006 and both appeals were dismissed.

2. The matter then continued for further days of hearing on 11 and 12 September 2006. The father chose to take no further part in those proceedings. The evidence concluded on 12 September 2006 and on that occasion I made directions for the filing of written submissions by the Independent Children’s Lawyer within 42 days, thereafter the respondent mother within 30 days was to file her written submissions. I allowed the intervener then to file and serve material within a further period expiring on 22 December 2006 and I gave the father, who was not present, until 25 January 2007 to file any submissions that he sought to rely upon. I granted 14 days for any of the other parties to file replying material. I required the Independent Children’s Lawyer to write to the father advising him of the directions made for the filing of material.

3. It is most regrettable that the directions made for the filing of submissions were not complied with, particularly by the Independent Children’s Lawyer.

The Applicant’s Submissions

1. The father commenced his submissions to me by saying that the application arose out of a letter by counsel for the Independent Children’s Lawyer addressed to me and my associate’s reply to that letter. The letter from my associate is annexure A(1) to the husband’s affidavit to which I have already made reference. The husband did not receive a copy of the letter originating from counsel for the Independent Children’s Lawyer.

2. The father takes strong exception to the expression used in my associate’s letter that I accepted, without question, that counsel had been making all proper efforts to complete his submissions.

3. The father argued that that statement amounted to an indication that I see no wrong in the Independent Children’s Lawyer, that I commended his industry, honesty and integrity, that I lavished praise upon him. That statement contained in that document he asserts of itself amounts to prejudgment of the substantive issue, in that I have clearly shown I will agree with anything that the Independent Children’s Lawyer says.

4. With that submission I simply cannot agree. The letter from the Independent Children’s Lawyer asked that I be assured that counsel was doing all he could to complete the submissions. I was prepared to accept that assurance and it is for that reason that the letter was phrased in the way it was. To endeavour to extrapolate from that exchange that I was praising the Independent Children’s Lawyer and dealing with and holding out as exemplary his industry, honesty and integrity is not open to the father. The father made reference to a passage in the reported decision of Watson; ex parte Armstrong (1976) FLC 90-059 in the right hand column of page 75,292.

   “The lesson to be learned is that the dialogue commonly accepted between Bench and Bar has dangers which no doubt make silence the counsel of perfection. It is a counsel which is hard to learn and, to speak of my own experience, is never fully learned.”

5. Of course his Honour was referring to comments contrary to a party and his Honour’s observation of the credit of a party. These were comments his Honour had made in earlier proceedings or in procedural steps in the matter. To my mind it has no application to the present situation. Indeed it would be in my mind a sad day if common courtesy could not be extended to members of the profession, or litigants in person, without attracting the immediate (and entirely incorrect) response that such courtesy displays a bias because it indicates a complete, absolute and unqualified acceptance of what a legal representative has to say.

6. The father endeavoured to make something of the fact that the letter was written by counsel and not the Independent Children’s Lawyer. To my mind this is a distinction without a difference. The father seemed to see something sinister in the fact that the letter emanating from my chambers was written by my associate. He indicates that my associate and I are in this situation effectively the one person. With that I basically agree. The letter was clearly written on my instructions. It conveys my views to the counsel for the Independent Children’s Lawyer.

7. The father indicated that the rules had been changed throughout the course of the hearing.

8. Further he put to me, correctly with respect, that submissions are a part of the trial process.

9. He indicated that because of what was happening, that is the submissions were not being filed within the time specified in my original timetable, or even by subsequent directions which I made on 20 December 2006 that the aims of all other parties to prolong this matter were being achieved. However as pointed out by Mr Canning in his submissions that which the father seeks to achieve by this present application for disqualification is that the entirety of what has been done and achieved to date in very many days of hearing be thrown away and the matter commenced again.

10. It is clear that as a result of non-compliance with my directions for filing submissions in a timely fashion that this matter has been prolonged. However to say that the non compliance with my directions has been a deliberate and reasoned act on the part of those representing the Independent Children’s Lawyer and the wife is a finding not open to me on the material that I have presently before me.

11. It was the contention of the father that the failure to conclude the matter by delivery of submissions and thereafter a judgment was a denial of natural justice. Clearly it is axiomatic that a court should deal with the matter from commencement of hearing to delivery of judgment as expeditiously as possible. This has been an extraordinary case. It has been heard over an extended period of time in various stanzas of weeks of hearing. The father has always complained that the matter was intended to be heard as a matter of extreme urgency and in this he refers to a statement of Jordan J. It is apparently the father’s belief that this matter was to take absolute priority over every other matter in the Court and to be heard in one extended and continuous period of time to conclusion.

12. The father went on to say that I was in contempt of my own orders and that I have not enforced the timetable for filing the submissions that I fixed. It is a matter of record that there was a further correspondence between my associate and the counsel for the Independent Children’s Lawyer and these may be found as annexures A4 and A5 to the father’s affidavit.  Of course copies of each piece of correspondence were forwarded to the other legal representatives and to the father.

13. On 20 December 2006 I made orders which I set out as follows:

    (1)That the Independent Children’s Lawyer file and serve such submissions as he proposes to rely upon in this matter by no later than 5pm on 17 January 2007. In the event that those submissions are not filed within that time then the Independent Children’s Lawyer shall not file submissions in this matter.

    (2)That the mother’s legal representatives have 21 days thereafter to file and serve their submissions.

    (3)That the intervener have 14 days thereafter to file their submissions.

    (4)That the father have 14 days after receipt of the submissions of all other parties to file his submissions.

    (5)That in the event any party wishes to reply to the submissions of the father, such reply shall be filed within 14 days thereafter.

14. The father also points out that his application, filed on 14 February 2007 was indeed sought to be filed some month or six weeks earlier when it was presented to the registry in Brisbane. The application was then referred to my chambers and was attended to me as soon as possible on my return to chambers from leave. The application was thereupon filed and made returnable on 28 February 2007 on which day I ordered the matter be heard by video link on 8 March 2007.

15. The father made the point that the delay between the making of my original directions on 12 September 2006 and today is not his fault and cannot be laid at his door. This is correct. To this date there has been no obligation imposed upon the father with which he has not complied. Indeed as part of the proceedings before me today I sought to obtain from the father information as to, in the event that I did not disqualify myself, whether he would file and rely upon any submissions. He informed me firstly that this was something I was not entitled to know and secondly that in any event he had not decided what he wanted to do.

16. Nonetheless it must be clear that the delay that has been occasioned particularly by the Independent Children’s Lawyer in forwarding his submissions has been extensive. The fact that the Independent Children’s Lawyer and his counsel at differing times sought to explain that delay does them some credit but does not alter the fact that the delay, as I have said, was real and extensive.

17. The delay on the part of the legal representatives of the wife was far less significant by comparison. I have now received the submissions of the intervenor. At the end of the day the matter has been significantly delayed by the non-compliance with my directions.  The question is; does this amount to some form of either procedural unfairness or a denial of natural justice as complained of by the father.

18. The husband then made submissions that the Independent Children’s Lawyer had been disgraced and by the comments contained in my associate’s letter I was in fact excusing that. The husband in what to my mind was an intemperate if not offensive remark spoke of “participating in infamy”.

19. He then returned to the thread of seeking an order immediately for him to have interim time with the subject child. He made observations about the difficulties that can be created by the passage of time. He spoke of reliance upon the recommendations of Professor N and made it clear that he wanted to have orders that would enable him to see his daughter. In effect what I understood him to be saying in this regard was that I should give him an interim order and dispense with the reports and submissions and deal with the matter by use of common sense.

20. Of course this application effectively again seeks an order that was the subject of an appeal to the Full Court of the Family Court. That appeal was dismissed by the Full Court on 5 September 2006. To my mind there is no merit in this application which in any event I perceive to be an afterthought by the father, developed in the course of his submissions.

21. The father then indicated that he would correct any injustice and will go on forever until he gets justice. He said that he would prevail and would not be denied and one way or another he would obtain the result he sought. He would if necessary go to jail.

22. So far as the application for an immediate order is concerned this was not part of the father’s application before me. Indeed it seemed to me as I observed him during the course of submissions that this was a submission that he effectively allowed himself to drift into in the course of his other submissions as to my disqualification.

23. The application for disqualification is opposed by all other parties to the proceedings.

24. It seems to me that the father seeks my dismissal on a number of grounds which I set out hereunder:

    ·Not complying with or ensuring procedural fairness;

    ·Denial of natural justice;

    ·Denial of time which could have been spent with the subject child;

    ·Cutting relationship with the child;

    ·Contempt of court;

    ·Contempt in court;

    ·Discreditation of the Independent Children’s Lawyer;

    ·The fact that the child is entitled to widest community of love and possible affection.

    ·It would be apparent to a fair minded observer that because of the way in which I have conducted the hearing I could not bring an open mind to the final determination of the matter.

The law to be Applied

1. The father seemed to use the expressions “actual bias” and “apprehended bias” throughout the course of his lengthy submissions.

2. I have been referred to the decision of the High Court of Australia in MIMA & Jia 2001 High Court of Australia delivered on 29 March 2001. His Honour Mr Justice Hayne at paragraphs 183 and onwards to paragraph 187 said as follows:

   183. To examine those questions it is necessary to consider more closely what is meant by "bias" and "apprehension of bias". "Bias" is used to indicate some preponderating disposition or tendency, a "propensity; predisposition towards; predilection; prejudice". It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgment. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is "any thing which turns a man to a particular course, or gives the direction to his measures" - #. This matter concerns only bias by prejudgment and I confine my reasons to that subject. The questions that may be presented by an allegation of bias for other reasons do not arise and are not considered.

   184. The development and application of a test of reasonable apprehension of bias avoids any need for a court, which is asked to prohibit a decision-maker from going further or to set aside a decision which has already been made, to attempt some analysis of the likely or actual thought processes of the decision-maker. It objectifies what otherwise would be a wholly subjective inquiry and it poses the relevant question in a way that avoids having to predict what probably will be done, or to identify what probably was done, by the decision-maker in reaching the decision in question. As was said in Ebner v The Official Trustee in Bankruptcy, "[t]he question is one of possibility (real and not remote), not probability".

   185. Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.

   186. Often enough, allegations of actual bias through prejudgment have been held to fail at the third of the steps I have identified. In 1894, it was said that:

   "preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded". (emphasis added)

   Allegations of apprehended bias through prejudgment are often dealt with similarly.

   187. In the case of a court, it will usually be self-evident that the issue, if an issue of fact, is one which ought to be considered afresh for the purposes of the particular case by reference only to the evidence advanced in that case. Other decision-makers, however, may be under no constraint about taking account of some opinion formed or fact discovered in the course of some other decision. Indeed, as I have already pointed out, the notion of an "expert" tribunal assumes that this will be done. Conferring power on a Minister may well indicate that a particularly wide range of factors and sources of information may be taken into account, given the types of influence to which Ministers are legitimately subject. It is critical, then, to understand that assessing how rules about bias, or apprehension of bias, are engaged depends upon identification of the task which is committed to the decision-maker. The application of the rules requires consideration of how the decision-maker may properly go about his or her task and what kind or degree of neutrality (if any) is to be expected of the decision-maker.

3. His Honour at paragraph 183 examined what is meant by the expressions “bias” and “apprehension of bias”. I can in no way improve upon and therefore accept that which his Honour says. As I understand it his Honour is saying that bias as against apprehension of bias indicates some preponderating disposition or tendency a propensity or predisposition towards predilection and prejudice. It may be occasioned by interest in the outcome by affection or enmity as his Honour says or by prejudgment. The result that is asserted or feared is a deviation from the true course of decision making.

1. So far as actual bias is concerned it seems to me that the grounds relied upon by the father for my disqualification are:

   a)Not complying with or ensuring procedural fairness; and

   b)Denial of natural justice.

2. The father claims that I have denied him procedural fairness and have denied him natural justice. As I understand it this is largely because of the delays which he says have occurred in the hearing, which delays he lays at my door.  To my mind the father perceives in respect of these two matters that anything that does not accord with his own view of his entitlement and his rights is either a denial or a failure to afford procedural fairness. To my mind these allegations are without proper foundation. I am satisfied that the father has been given every opportunity to deal with this matter and put his case as forcefully as he would wish.

3. He complains that the matter should have been heard straight through in one continuous hearing. This was not done. This was a matter of availability of time of the Court and a judge to hear his matter and this of course required that the needs of his case be balanced against other cases awaiting hearing by the Court. The nature of the case required or at least indicated that a judge from other than the Brisbane registry should hear the matter and it was on this basis that I became the trial judge.

4. I am satisfied that everything that could be done was done to hear this matter to completion in a timely and appropriate fashion, having regard to other claims on the Court’s time and resources. I am satisfied that the father has been given every opportunity to deal with the matter and put his case as forcibly as he would wish.

5. The father raised the issues that he was denied time with his daughter, that his relationship with the child was severed and that the child did not receive her entitlement to the widest community of love and affection. To my mind these grounds are partly directed to the issue of actual bias. As I understand the father’s argument the fact that I have made decisions contrary to the orders that he sought in respect of the child is a clear indication that when a final decision is made I will not bring an unbiased mind to bear.

6. To my mind the fact that interim or interlocutory orders are made during the course of a hearing does not and cannot indicate that the final decision will accord with those interim orders. In my view it is not open to the father to say that because I have made the interim decisions I have that it is automatic that my final decision will be to the same effect.

7. However those same grounds may well have some bearing on an application for disqualification based on apprehended bias and I will accordingly return to them later in these reasons for judgment.

8. I am satisfied that the suggestion that I have been guilty of contempt of court or contempt in court is baseless and requires no further explanation. To my mind however such a suggestion is entirely unmeritorious.

9. There then remains the perception of bias that could lead to disqualification. I am aware of the decision of Ebner v The Office Trustee in Bankruptcy[1]. Paragraphs 6, 7, and 8 of that judgment appearing at pages 344 and 355 I set out hereunder:

   6. Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

   7. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

   8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

   i)[1] 205 CLR 337

10. The father clearly asserts that which I have done in the conduct of this matter is sufficient to cause in the mind of a reasonable observer who has witnessed the whole of the proceedings a concern that I am not able to bring a balanced and unbiased approach to a final determination of the issue. The father clearly believes that not to agree with what he proposes, and to do or say anything with which he does not immediately agree would raise an apprehension of bias. In this regard the father relies upon the orders that I have made refusing this application to spend time with his daughter. He indicates that this must clearly raise in the mind of our impartial observer an apprehension that at the conclusion of the hearing the final orders that I make will not vary from the interim orders made to date.

11. The father advances a multitude of reasons as to why I should disqualify myself. However in my view his own presentation in this case must be examined in reaching a decision.

12. It is clear that the father has his own fixed, firm and unshakable view and conviction as to what is the only appropriate outcome, if justice (as he sees it) is to prevail.

13. The intemperate comments he has made indicate to me that he is either incapable of entertaining any view other than his own or giving any allowance to any view that did not coincide with his own view or alternatively that he chooses to make his position clear in very strong terms with the hope of obtaining some forensic advantage.

14. It is obvious that the interim orders that I have made were made at various times with various parts of the evidence available to me. The father maintains that because I have continued to refuse to permit him to spend time with his daughter, in the face of the evidence of Dr N, that it must follow as night follows day that I will refuse him the opportunity to spend time with his daughter in my final orders. This is not so. Further it is not the case that the impartial observer would perceive it to be so. Interim orders are made at various stages of proceedings for various reasons. It is not sufficient for a litigant to say because the interim orders go against me it is either a) a fact that the final orders will go against me or b) a proper perception by an observer that this would be the result.

15. This is clearly a stance which cannot be maintained. The very observer upon whom the father places so much reliance would have observed not only my behaviour and the behaviour of the legal representatives of the wife, the child and the intervenor but would have observed the behaviour of the father himself.

16. I return to what was said by their Honours of the High Court in Ebner (supra). Paragraph six I have already set out. I extract from that the principle that a judge is disqualified if a fair minded lay observer might reasonably apprehended that a judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That to my mind still remains the test that a person seeking the disqualification of a judge on the basis of apprehended bias must meet.

17. I do not accept that any of the exchanges heard by a person not a party to the proceedings and being a person who had been an observer for the whole of the proceedings would fear, on what I had said or done or caused to be communicated, that I could not bring to bear on this matter a mind free of prejudice.

18. Having seen the manner in which the father, throughout the evidence, and in subsequent applications, has continued to agitate matters that have been resolved by the Full Court and continues to maintain his position might well rise in those people an apprehension that the father is unable to separate his own needs to the extent that he himself can look impartially upon the proceedings rather than seeing them through spectacles very much coloured by his own self interest.

19. As to the ground for disqualification that I have exhibited actual bias the husband fails absolutely. He cannot establish any interest in the outcome or any dislike of him such as would be necessary to found this ground. I am satisfied that he has been afforded natural justice and procedural fairness throughout the hearing for the reasons I have endeavoured to set out above. For those reasons any application for my disqualification based on actual bias must fail.

20. So far as an apprehension of bias is concerned I have endeavoured to set out the appropriate test, together with the matters that must be considered. In this instance I am satisfied that the husband puts himself in the place of the observer. He of course is not independent. He makes it clear that it is his unshakable view that that which I have done is sufficient to raise very firmly in his mind the perception that I cannot deal with the matter and determine it on a final basis fairly and justly.

21. However, the fact that he has such a belief does not automatically mean that the unbiased observer has or should have a similar view. In my view such an observer could not hold such a view. Such an observer would have seen the whole of the proceedings. He would have seen not only the manner in which I acted, and dealt with the matter, but the manner in which the father conducted himself throughout the hearing. Such an observer could not conclude because of what had been observed in court in the course of this long and difficult trial, that things had occurred which would lead that observer to hold a reasonable belief that I would or could not deal with the matter fairly, on its merits, having regard to the whole of the evidence. Accordingly the application for disqualification on the ground of apprehended bias must fail.

22. For the above reasons I am not satisfied that it can be established that I have:

    a)Exhibited actual bias to the father on any of the grounds that he has alleged; or

    b)Demonstrated apprehended bias such as would cause the reasonable observer to fear that I could not bring a clear and unprejudiced mind to the task of judgment in this matter.

23. Accordingly the husband’s application filed 14 February 2007 is dismissed.

24. When the matter came before me by telephone I agreed that I would not read the submissions that I had received which were the submissions of the Independent Children’s Lawyer and later the submissions on behalf of the wife. So there is no misunderstanding I propose to commence reading these submissions forthwith.

25. Additionally I have now received the submissions from the intervener and will in turn read those.

26. I have already indicated that the father would not or could not inform me if he proposed to produce written submissions. I therefore propose to order that he notify me within seven days of his intention in this regard. If he proposes to put in submissions he will have 28 days in which to do so.

I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier

Associate: 

Date:  28 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as FENNESSY & SANCHEZ