Flanagan v Handcock S43/2000 [2000] HCATrans 601 (13 October 2000)

Office of the Registry

Sydney No S43 of 2000

B e t w e e n -

JOHN EDWARD FLANAGAN

Applicant

and

NARELLE IRENE HANDCOCK

Respondent

Application for special leave to appeal

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 OCTOBER 2000, AT 12.42 PM

Copyright in the High Court of Australia

MR J.E. FLANAGAN appeared in person.

MRS N.I. HANDCOCK appeared in person.

McHUGH J: This is, I think, the meat of your various applications, Mr Flanagan.

MR FLANAGAN: In S43 of 2000, I apply for special leave to appeal from the whole of the judgment of Finn, Kay and Holden given on 2 March 2000 in the Full Court of the Family Court of Australia. There are four special leave questions that arise, namely: (1), is there a need for certainty concerning departure applications that are before the Family Court of Australia? (2) Should the "best interests of the children" principle be the paramount consideration in determining an application for an injunction under section 68B of the Family Law Act 1975 ? This is with respect to the reasons of the judgment of her Honour Justice Finn. (3) Should decisions prior to decision of the matter of B and B (1997) FLC 92-755 and prior to the substantial rewriting of Part VII of the Family Law Act be considered as authorities in determining an application for an injunction in relation to the use of a particular name for a child? In this respect, I refer to the judgments of Kay and Holden. And the fourth question is: Did the trial judge's discretion miscarry?

McHUGH J: Yes. Well, that latter ground is really a question of fact and degree. It is not really a special leave point. But, anyway, you develop your other - - -

MR FLANAGAN: That is my submission, your Honour.

McHUGH J: I beg your pardon?

MR FLANAGAN: That is the extent of my submissions.

McHUGH J: Yes. Well, you just might sit down for the moment, thank you, Mr Flanagan. Mrs Handcock, what do you say about this?

MRS HANDCOCK: I do not really have a lot to add other than what is in my submission already, your Honours. Mr Flanagan left when the children were eight weeks old. We have been using the name "Handcock" - like, we used the name "Handcock" for them since they were eight weeks old.

McHUGH J: Well, I understand that, yes. It is not a question of the merits but it is a question of whether or not the Full Court has misdirected itself. You have a dissenting judgment of Justice Finn in this particular case, so these are the sorts of matters that we want to look at. Mr Flanagan says that his application raises the question whether the paramountcy principle of "the best interests of the child" has direct application when injunctions are sought under section 68B of the Act. The majority said it did not. Justice Finn said the contrary. Now, is that point sufficiently important that we should grant special leave to appeal on it?

MRS HANDCOCK: I do not think so, your Honour.

McHUGH J: That is the matter that is concerning me and, in addition, Mr Flanagan says there are earlier authorities on this issue. Do they remain relevant despite the amendment of the relevant provisions? Are these matters sufficiently important for this Court to grant special leave to appeal. So, if you might just direct your - - -

MRS HANDCOCK: Well, times have changed and it used to be in the older days that children did have the name of their father but in this case Mr Flanagan left when the children were so young that it is not - it does not follow on now that children bear the name of their father just because it happens to be on their birth certificate. Mr Flanagan had nothing to do with the children for the first 18 months of their lives, or very little to do with them. For 12 months he did not see them.

McHUGH J: His complaint is that his case has never really properly been dealt with because he says "the best interests of the child" is a matter that is directly involved and has to be examined, and the majority of the Full Court said it has not, and Justice Finn said it should have been and she would have allowed his appeal, granted him leave to appeal. So, they are the problems. It is not a question as to how the case would end up. You might still succeed. The question is whether he has raised issues which are sufficiently important to warrant a grant of special leave. I mean, not many cases from the Family Court come up here. There are tens of thousands of cases go through the Family Court. We hear one or two a year at most.

KIRBY J: This is a subject on which people feel quite strongly. I received only yesterday an issue of the Queensland journal of the Law Society of Queensland called Proctor which has a long article about the issue of the way the Family Court deals with name disputes.

MRS HANDCOCK: Yes. I do not think the decision, whatever, would have come out any different because of the length of time that - - -

KIRBY J: That, I think, is the real question, whether, even if "the best interests of the child" is relevant and had been applied, whether in your particular case no different result would have arisen because of the fact that Mr Flanagan did not support the children from their birth and it was only after proceedings were taken with the child support legislation that reluctantly, and then with disputation, moneys were procured for the support of the children and that on any view an issue that a court would have to consider on a test of the best interests of the child would be, "Is the person who claims the name supporting the children?"

MRS HANDCOCK: That is correct, your Honour. I have supported them other than what we have received through the Child Support Agency. We did not receive anything for two years. So, I do not think the decision would have been any different if there any been any - if they had gone the same way as Justice Finn. I do not think the decision would have been any different whatsoever.

Just on the facts of the case: like, I have never used the name "Flanagan". I have always been "Handcock". It is just different from the other cases, and the children have been known - - -

KIRBY J: The more you say, the more interesting you are making the case because, in a sense, a lot of married women now do not use their husband's name and, in that sense, the issue of what name a child will take and whether the best interests of a child is still to be regarded, if it is applicable, as conducing to the use of the father's name, as distinct from the mother's name, may be an issue of some importance.

MRS HANDCOCK: We were never married either.

KIRBY J: Well, the father. I used "the father" and "the mother", not "husband" and "wife". A lot of people do not marry nowadays. I think it is a third of all couples or more.

MRS HANDCOCK: I do not think the decision would have been any different if the - - -

KIRBY J: Well, that is the strength of your case.

MRS HANDCOCK: Yes.

McHUGH J: Thank you. Mr Flanagan, you have your right of reply to what has just been said but the matter that is exercising my mind a little is whether, on the facts, even if the "best interest" principle had been applied, would the result have been different? Do you understand?

MR FLANAGAN: I understand. I have quoted six authorities that were before their Honours Justices Finn, Kay and Holden, and they all said that the "best interest" principle should have applied. Now, I believe if that principle was applied, the children's names - the injunction would have been granted on the basis that Mrs Handcock would have been restrained from using her name "Handcock".

Now, there is another issue: these are my only two children and therefore I believe they should be named "Flanagan".

McHUGH J: Yes, I - - -

KIRBY J: Your name was used on the birth certificate?

MR FLANAGAN: Yes.

McHUGH J: Mr Flanagan, can I just ask you this: if leave were granted, the Court would want to be sure that the points would be fully and properly argued and would require counsel, really.

MR FLANAGAN: I understand that, your Honour. I would propose - I did have a barrister organised for today but, unfortunately, he was not able to attend today. I appreciate that.

McHUGH J: One thing that concerns me is the cost of litigation between the pair of you. It must be very considerable by now. It is a very worrying aspect of it. You have brought some what, 16 applications, I think, and you have these applications. Anyway, if leave were granted, you would propose to brief counsel?

MR FLANAGAN: I would, your Honour.

KIRBY J: You would not be then coming along and saying, "Well, I had a barrister lined up and he has not turned up today"?

MR FLANAGAN: No, your Honour.

KIRBY J: Presumably, Mrs Handcock would be able to get legal aid if you were granted special leave?

MRS HANDCOCK: No, your Honour, I work. I cannot get legal aid, but I cannot afford to have a barrister or anybody. I get legal advice from a solicitor but I just cannot afford it. I have two children to support.

KIRBY J: Yes, but if special leave were granted to Mr Flanagan, it may well be that your entitlements to advance a case for legal aid would be much greater, so that you can hold the decision below.

McHUGH J: And I am sure the Bar Association would arrange for some able counsel to appear for you. In the circumstances, one would hope that they would.

KIRBY J: It is simply to make sure that the Court would get the proper assistance because - - -

McHUGH J: There is no point in us even considering granting special leave unless this point is, first of all, important enough to have a grant of special leave and then, secondly, to be properly argued so that no aspect of the argument from either side is not put to the Court. If we are going to intervene in this area, then we want to be sure that we have not overlooked any relevant consideration.

KIRBY J: That would include consideration of how other courts such as the Supreme Court of the United States or the Supreme Court of Canada or courts in England have dealt with this problem which must be a problem that has arisen in those courts.

McHUGH J: You might just take your seat for a moment. Mr Flanagan, you appreciate, I take it, that if special leave is granted and you have an appeal and you lose the appeal, then you could be up for very considerable costs. You appreciate - - -

MR FLANAGAN: I understand that.

McHUGH J: Yes. Well, there will be a grant of special leave in matter No S43 of 2000.

AT 12.55 PM THE MATTER WAS CONCLUDED