Fennessy & Gregorian

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.