Fennessy & Gregorian

Case [2009] FamCAFC 44

FAMILY COURT OF AUSTRALIA

FENNESSY & GREGORIAN [2009] FamCAFC  44

FAMILY LAW – APPEAL – Application for permanent stay or dismissal of the father’s appeal for want of prosecution – Balancing the entitlement of an appellant to have the merits of his or her appeal considered on the one hand, and the rights of other parties to finality of litigation and undisturbed enjoyment of the fruits of success in that litigation on the other – Failing to dismiss the father’s appeal would be to encourage an abuse of the Court’s processes and constitute a substantial and ongoing injustice upon the mother, the child the subject of the proceedings, the Director General and the ICL

FAMILY LAW – COSTS – Director General awarded costs on a party and party basis.

FAMILY LAW – COSTS – Indemnity costs – Application by mother for costs on indemnity basis – Whilst contributing to the dismissal of his appeal, and justifying the making of an order for costs, the father’s conduct in the proceedings not considered to be “special or unusual” or of such an “exceptional” kind as to justify the awarding of indemnity costs

FAMILY LAW – COSTS – Lawyer and client costs – Whether appropriate to make an order for costs on a lawyer and client basis – Where parties have incurred costs in excess of those which would be covered by an award of party and party costs and in the circumstances it would be regrettable if the mother’s legal advisors were to be limited to party and party costs – Provisions of Rule 19.18(3) considered – Order for costs as agreed or assessed on a “lawyer and client basis” is appropriate

The Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248

Kohan & Kohan (1993) FLC 92-340

Limousin v Limousin (Costs) (2009) 38 Fam LR 478; [2007] FamCA 1178
Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541
Penfold v Penfold (1980) 144 CLR 311

Yunghanns v Yunghanns (2000) FLC 93-029; (2000) 26 Fam LR 331
APPELLANT: MR FENNESSY
RESPONDENT: MS GREGORIAN
INDEPENDENT CHILDREN’S LAWYER: Peter Williams
INTERVENER: Director-General, Department of Child Safety
FILE NUMBER: BRF 5353 of 2003
APPEAL NUMBER: NA 06 of 2008
DATE DELIVERED:

26 March 2009
PLACE DELIVERED: Parramatta
JUDGMENT OF: Coleman, Boland and Thackray JJ
HEARING DATE: 16 February 2009
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 19 December 2007
LOWER COURT MNC: [2007] FamCA 1574

REPRESENTATION

ADVOCATE FOR THE APPELLANT: Mr Fennessy, in person
COUNSEL FOR THE RESPONDENT: Ms Brasch
SOLICITOR FOR THE RESPONDENT:

Andersons Solicitors

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

 Mr Williams

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Williams Lawyers
COUNSEL FOR THE INTERVENER: Mr Parrott
SOLICITOR FOR THE INTERVENER: Crown Law

Orders

  1. That the husband’s Notice of Appeal filed 15 February 2008 be dismissed.

  2. That the husband pay the wife’s costs of and incidental to the said Notice of Appeal in the sum of…

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AGLC
Fennessy & Gregorian [2009] FamCAFC 44
Case
[2009] FamCAFC 44
Decision Date

CaseChat Overview and Summary

The appeal in Fennessy & Gregorian involved the father contesting aspects of a family law case decided in his absence. The father argued that the trial judge had failed to adequately consider the evidence of an expert witness, Professor N, who had evaluated the psychological well-being of the parties and made recommendations regarding contact with and residence of the child. The mother sought to have the father’s appeal dismissed due to his lack of prosecution and failure to provide necessary submissions. The court was required to balance the father’s right to have his appeal considered against the need for finality in litigation and the rights of other parties.

The court found that the father had ample opportunity to demonstrate the merits of his appeal but had failed to file any material or submissions in support of his claims. The father, who was experienced in litigating in person, knew what he sought to demonstrate with Professor N’s evidence but had not provided any such material. The court concluded that the father's appeal was unlikely to succeed and that dismissing it would serve justice by preventing further wasted time and costs. Additionally, the court considered the mother's application for costs on an indemnity basis, finding the father's conduct insufficiently exceptional to warrant such an award, but appropriate to order costs on a lawyer and client basis to adequately compensate the mother for the costs incurred.

The court dismissed the father’s appeal and ordered him to pay the mother’s costs of the appeal in the sum of $11,926. The costs of the Director-General, Department of Child Safety were to be paid on a party and party basis, as agreed or assessed. The order for the mother’s costs to be covered on a lawyer and client basis was made to ensure her legal advisors were adequately compensated for the extensive costs incurred.

Orders

Orders of the court

1.

That the husband’s Notice of Appeal filed 15 February 2008 be dismissed.

2.

That the husband pay the wife’s costs of and incidental to the said Notice of Appeal in the sum of $11 926.

3.

That the husband pay the costs of the Director-General, Department of Child Safety of and incidental to the said Notice of Appeal as agreed or assessed on a party and party basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Those grounds had been described in the preceding paragraph of the Court’s judgment in the following terms: 47.One issue addressed by the husband in his grounds of appeal relates to the evidence of [Professor N], an expert in psychiatry who gave evidence at trial. [Professor N] provided reports detailing psychological evaluations of the parties for the purposes of determining contact with and residence of the child. The evidence given by [Professor N] rejected allegations of sexual abuse of the child by the husband and did not suggest that the husband should be denied contact with the child. The husband asserts that the evidence given by [Professor N] was unnecessarily shortened, and was also not taken into account by the trial Judge. [Reasons for Judgment, 2 July 2008, par 47]. It is clear beyond doubt that the father’s challenge to the trial Judge’s decision was said by him to relate solely to the evidence of Professor N, and to the weight given to it by the trial Judge. The orders made on 2 July 2008 removed any impediment which there might previously have been to the father accessing the transcript of Professor N’s evidence. There is no evidence that the father has been unable to do so subsequent to the making of that order. The father, a very experienced, and at times successful litigant in person, knew what it was he sought to demonstrate in reliance upon the evidence of Professor N. The concession appearing in the Court’s judgment of 2 July 2008 leaves no scope for doubt in that regard. Whilst the Court accepted, for reasons then given, that the father’s appeal was not necessarily “entirely devoid of merit”, without any explanation for his failure to do so, the father has completely failed to file any material with respect to Professor N’s evidence and the errors which he asserts the trial Judge made with respect to such evidence. He has accordingly chosen not to demonstrate the possible existence of merit in his appeal. Having had the benefit of the doubt on 2 July 2008, and failed to file submissions in support of his assertions, it is difficult to see on what basis the father could avoid having his appeal dismissed. Put simply, the father has had an abundance of opportunity to advance his appeal but has failed completely to take up those opportunities. Kirby J explained in Lindon v The Commonwealth (No. 2) (1996) 136 ALR 251 at 256 that:1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided [General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128f; Dyson v Attorney-General [1911] 1 KB 410 at 418].2.To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action [Munnings v Australian Government Solicitor (1994) 68 ALJR 196 at 171f, per Dawson J] or is advancing a claim that is clearly frivolous or vexatious [Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91].3.An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant termination. [Coe v The Commonwealth (1979) 53 ALJR 403; Wickstead v Browne (1992) 30 NSWLR at 5-7.] Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.4.Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of a demurrer. [Coe v The Commonwealth (1979) 53 ALJR 403 at 409.] If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. [Church of Scientology v Woodward (1980) 154 CLR 25 at 79.] A question has arisen as to whether O 26, r 18 applies to part only of a pleading. [Northern Land Council v The Commonwealth (1986) 161 CLR 1 at 8.] However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim.6.The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.

Ratio Decidendi

Legal Principle Established

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