Flanagan v Handcock

[2001] HCATrans 157

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S258 of 2000

B e t w e e n -

JOHN EDWARD FLANAGAN

Appellant

and

NARELLE IRENE HANDCOCK

Respondent

GLEESON CJ
GAUDRON J
GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 31 MAY 2001, AT 11.54 AM

Copyright in the High Court of Australia

MR M.M. HILBERY:   May it please your Honours, I appear for the appellant. (instructed by John Edward Flanagan)

MR P.L.G. BRERETON, SC:   May it please your Honours, I appear with my learned friends, MR N.S. JACKSON and MR P.J. LIVINGSTONE, for the respondent.  (instructed by Barkus Edwards Doolan)

MR H.C. BURMESTER, QC:   If it please the Court, I appear with MS L.M. LO PICCOLO, for the Attorney‑General of the Commonwealth, intervening under section 91(1)(a) of the Family Law Act. (instructed by the Australian Government Solicitor)

GLEESON CJ:   We will deal first with your application, Mr Brereton.

MR BRERETON:   May it please the Court, I move on a notice of motion filed on 14 March 2001 and in support of that, I read an affidavit of Narelle Irene Handcock, sworn and filed on 14 March 2001.

GLEESON CJ:   Is there any objection to that affidavit?  We have read that affidavit.  Yes, Mr Brereton.

MR BRERETON:   If it please the Court, at primary hearing before Justice Rose, the present appellant submitted that the best interests of the children were the paramount consideration.  The trial judge applied the rule that the best interests of the children were the paramount consideration, the so-called paramountcy principle.

No ground of appeal to the Full Court challenged that application of the rule by the trial judge.  In the Full Court, Justice Finn held that the best interests – the paramountcy principle – applied, albeit to an application for an injunction under section 68B, at least that the trial judge had not erred in applying that approach.  The joint judgment of the other two judges of the Full Court held that the jurisdiction in fact exercised was that of making a parenting order to which the best interests principle directly applied.  If it did not and if that was not the correct head, that it applied or had to be given great weight and consideration, even under section 68B, essentially, by analogy, with the decision of this Court in CDJ v VAJ.

At the end of the day the Full Court held, unanimously, that Justice Rose had not erred in applying the approach that the best interests of the children were the paramount consideration.  On the application for special leave it appears that the Court may have misapprehended the situation so far as the Full Court was concerned.  The relevant passages of the special leave application appear in the transcript annexed to Ms Handcock’s affidavit as the first annexure and at page 2 of 5.  At about point 4 Justice McHugh in responding to something which the applicant for special leave had said:

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 -

Then at point 9 on that page his Honour said:

His –

that is the appellant’s -

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 would have allowed his appeal, granted him leave to appeal.

KIRBY J:   Just pause there.  My understand is, from reading the Commonwealth’s submissions, that there is, whether effective in this case or not, a difference of opinion concerning whether or not the statutory Reform Act has removed the paramountcy principle from the particular orders that are made in a case such as this or whether it has not.  Now, is that a matter that you dispute?  As I read your submissions, you contend that the statute still does incorporate the paramountcy principle and as I understand the Commonwealth’s submissions, they say it does not, but everybody agrees the best interests of the child are still a very important factor, but is there not a dichotomy in the Full Court of the Federal Court and as between you and the Commonwealth concerning whether the Reform Act has removed the paramountcy principle, as such, from the exercise of the discretion in orders of the kind that are here in question?

MR BRERETON:   In B and B, the Full Court left open that question.  In this case the Full Court has not resolved it.  I suppose, in a sense, it is therefore open to say that there is an unresolved position, so far as that is concerned.  There is not yet ‑ ‑ ‑

KIRBY J:   Is that not an important question, that I mean, these parenting orders and orders relating to children rose to the House of Lords in England and come before appellate courts in other countries.  Is it not important that Court should know what principle they apply, either that they do apply the paramountcy principle or that they merely take it into account as a very important consideration in the exercise of their discretion?

MR BRERETON:   That is undoubtedly, ultimately potentially an important issue, but it should be resolved in a case in which the decision depends on it and not when the elucidation of that principle can make no difference to the outcome of the case in suit.

GAUDRON J:   I do not understand why you say that it can make no difference to the outcome of the case?

MR BRERETON:   Because the trial judge proceeded on the footing, which both parties accepted, that the paramountcy principle applied.  The Full Court held that, one way or another, the trial judge did not err in so doing.  If this Court upholds the appellant’s contention, that the paramountcy principle applies, then one is left with the trial judge being correct and my submission is exactly the same, that the paramountcy principle applies and, as the Attorney submits that, though it does not apply directly to section 68B, it is nonetheless entitled to great weight, it is impossible to see how any ultimate decision of this Court, on that issue in this case, could result in the appeal being allowed.

KIRBY J:   Well, how do we know.  I mean, first of all we start from a premise that it is pretty important in matters of this kind that judges should apply the correct legal principle and if they apply a legal principle which it is found is incorrect, and that is, itself, potentially a significant question of the practice of the Family Court, then how do we know how the primary judge would, re-exercising the principle, determine the case.  I mean, what you say seems to be right as a matter of practicality, but that really requires us to exercise the discretion on correct principles.  We are merely here to make sure that we apply the correct principle.

MR BRERETON:   It is important in a case where the parties join issue on it that the Court applies the correct rule or principle of law.  Often parties will accept that there is common ground and contest a case at trial on a common assumed basis and leave some issues out of disputation.  In this case, at trial, and in the Full Court, and on the special leave application, and in this Court, the appellant and the respondent are ad idem that the paramountcy principle applies and that is what the trial judge did.

KIRBY J:   You are ad idem, but the Commonwealth has come in and, I thought, in a rather persuasive analysis of the actual legislation, has indicated that the legislature has deliberately moved away from the paramountcy principle, at least as a general overarching principle and has instead adopted a view, for a reason I am not entirely clear, that you only apply that in particular cases otherwise you are back to a sort of more general principle.

MR BRERETON:   But even the Commonwealth, your Honour, adopts the position that the reforms contained in the Reform Act which made these changes were intended to move from a parent‑focused to a child‑focused approach to this type of litigation.  That is only consistent with giving greater, rather than lesser, emphasis to the best interests or welfare of the child.  Even if section 68B stood on its own, it speaks of an injunction “for the welfare”, or best suited “for the welfare of the child” – it uses the word “welfare” rather than best interests, but as B and B shows, there is no difference between those ‑ ‑ ‑

GUMMOW J:   There is a more important point of principle involved. It is this: can the Attorney, in reliance upon the statutory provision in section 91 of the Family Law Act, intrude himself into litigation between parties to generate a controversy which otherwise does not exist between them?

MR BRERETON:   Yes, your Honour, I respectfully adopt that.

KIRBY J:   Once we have the matter, do we not have to determine it according to law, and if we have submissions which cast doubt – after all, as I understand it, the appellant was unrepresented until quite recently, and therefore it may be that Mr Hilbery, having read what the Attorney says, might want to adopt it or he may not.  But we have the issue before us; it is the matter. 

MR BRERETON:   First, your Honour, the respondent, as well as the appellant, has been unrepresented until recently.  Secondly, there has been no indication throughout this litigation that the appellant wishes to adopt any position other than that the paramountcy principle applies.  He made that submission explicitly to the trial judge, his written submissions make it in the Full Court, and it is clear that that is the position he contends for here.  For him to depart from that position now would be a most extraordinary about‑face which, in my submission, he would not be permitted to do in a final court of appeal when all the litigation to that point had been conducted on another footing. 

KIRBY J:   But is it a matter that could address issues of fact or is it simply a matter of applying to the facts as proved the appropriate, correct legal principle? 

MR BRERETON:   It probably would not give rise to any requirement for further evidence, but again, your Honour, and with the greatest respect, it would not make any difference to the outcome because, even if the Attorney be correct, it is accepted on the Attorney’s argument that great weight must be given to the best interests of the children ‑ ‑ ‑

KIRBY J:   Can I tell you my problem with that.  It is this, that if you say it is paramount, then it overarches everything and therefore, your mind is focused on what are the best interests of the child.  If it is given great weight, then you allow that there may be other factors such as, for example, stability in the name of the child, in schooling, the wishes of the parent who is living with the child – I think the Supreme Court of Arkansas set out about eight principles.  In my mind, I could understand that a primary judge might reach a different conclusion if he is told by the legislature the best interests of the child are paramount than if he is told, “Look, there are a lot of factors to take into account here, one of which extremely important, the best interests of the child, but it is not the paramount one”. 

MR BRERETON:   Your Honour, that may all be very important if there had ever been a notice of appeal which contended that the trial judge had erred in applying the paramountcy principle.  No one has ever brought any such appeal.  No such contention has ever been made and it would, with respect, be totally unreasonable to expect the respondent wife or respondent mother, now in the highest court of the land, in this dispute to be confronted with a completely different approach to the law than that which has been common ground up until this point.

KIRBY J:   You are here, costs have been incurred, the matter is put before us by very useful written submissions.  It is a matter that affects, one would think, if not daily, at least weekly, concerns in the Family Court and the question is whether the rule of law has been observed, whether the judge has applied the correct principle.  The matter is before us - it would seem to me - and it has been also before the highest courts of other countries, including the House of Lords.  For us now not to address the matter would seem – unless Mr Hilbery embraces what you have said – to be completely unreasonable.

MR BRERETON:   In her Honour’s judgment in the Full Court, Justice Finn said that undoubtedly whether the paramountcy principle applied to a section 68B injunction application was a matter of importance which required resolution in an appropriate case, that this was not the appropriate case because the Court had not had the benefit of full argument, nor had the trial judge on that issue.

In my submission, if this Court ‑ ‑ ‑

KIRBY J:   We have the benefit now of full argument.

MR BRERETON:   But your Honours do not have the benefit of a decided issue of the court normally entrusted with these matters, the Full Court of the Family Court, from the force of which this Court can then consider.  This issue can be resolved in the Full Court of the Family Court when it requires resolution in an appropriate case.

KIRBY J:   But at Justice McHugh pointed out, there is the signal in the Full Court of the disparity of opinion between the joint judgment and the judgment of Justice Finn.  So it did emerge in this case.

MR BRERETON:   But perhaps what I have not sufficiently made clear is this, your Honour.  Justice Finn said the application was brought for an injunction as under section 68B.  Arguably, her Honour noted, the paramountcy principle does not apply to section 68B but ultimately her Honour thought in the context of this case there was no error in applying it.  When one comes to the other judgments of the majority in the Full Court, what their Honours did was to hold first that the paramountcy principle did not apply directly to section 68B but the best interests were entitled to great weight and, as your Honours said in CDJ v VAJ, overshadowed the considerations.

More importantly, their Honours said this is really an exercise in making a parenting order.  Once that is recognised, it is an order concerning the responsibilities of parents vis‑à‑vis their children.  Once that is recognised, the paramountcy principle does apply.  Their Honours’ ultimate decision was that the paramountcy principle did apply directly.  So, whereas Justice McHugh thought that the majority had said that the best interests did not apply, in fact, the majority held that the best interests principle directly applied.

We now have three justices of the Family Court, two of them saying it applies directly and one at least indirectly.  So there is no real tension on the facts of this case between the judges of the Family Court on that issue.  For those reasons, in my submission, there is just no issue worthy of litigation before this Court about the paramountcy principle.  Had there been argument on the special leave application, it may well have been that the absence of a true special leave question would have then been apparent.  It was not then but, on the closer examination that is now possible, it is, in my submission, as plain as can be that there is no issue of general importance arising in this case warranting the attention of this Court.

GLEESON CJ:   Now, what about the child support aspect of the matter?

MR BRERETON:   So far as the child support aspect is concerned, the argument on the special leave application, at least orally, did not touch upon it and it does not appear to have been an issue which moved the Court to grant special leave, so far as the oral argument goes.  In any event, what it amounted to was no more than this:  all of the judges in the Full Court applied the principles set out in the Full Court’s earlier decision of Johnson v Johnson.  The only difference between them was on its application to the facts of the case in suit.  In other words, whether, as a matter of fact, the appellant was on sufficient notice that the latter two years, 1999 and 2000, were going to be dealt with.

The majority held that, looking at the facts as a whole, he was on sufficient notice.  Justice Finn took a dissenting view on that point.  That is not a question of principle; that is a question of the application of settled and undisputed principle to facts, a matter traditionally left at best to intermediate courts of appeal and which does not ordinarily trouble this Court.

In this case, in short, the facts were that even Justice Finn accepted that the appellant had before the Judicial Registrar sufficient, although limited, notice that the last two years were in issue.  The question was whether he had notice that they were in issue before the judge.  His application to the judge was for a review of the Judicial Registrar’s decision, including his decision about 1999 and 2000.  So the application, necessarily, his own application ‑ ‑ ‑

GAUDRON J:   Was it not one of his grounds of complaint at that stage that the Judicial Registrar should not have dealt with them?

MR BRERETON:   Indeed, your Honour.  So he ‑ ‑ ‑

GAUDRON J:   And was that argument addressed?

MR BRERETON:   In the written submissions of the husband – of the father in the Full Court at length.

GAUDRON J:   Yes, but by the reviewing judge?

MR BRERETON:   Not in detail.  The reviewing judge appears to have adopted the same view as the Judicial Registrar that, having made a decision about the earlier years, it was pragmatic to continue the order with a very minor variation for the next two years.  Now, what needs to be borne in mind, is that what is ‑ ‑ ‑

GAUDRON J:   Is there not a little bit of a dilemma, at least for an unrepresented person, where the argument he is making is that the Judicial Registrar should not have dealt with them?  If that argument is successful, then presumably he is entitled to assume that nor will the reviewing judge.  But without saying that argument fails, the matter is then dealt with.

MR BRERETON:   The applicant for review, before the trial judge, made a forensic decision, and that decision appears, in effect, in his written submissions at page 204 line 18 and following.  He said that he was addressing the merits of the Judicial Registrar’s decision so far as the earlier years are concerned and contending that in respect of the later years no order should have been made.  That is at 204 lines 18 to 22 and thereabouts.  That was a forensic decision on his part to limit ‑ ‑ ‑

GAUDRON J:   Just a moment.  Page 204 of the appeal book, volume 1?

MR BRERETON:   I hope so, your Honour.  Yes.

GAUDRON J:   “A Brief Statement of my Argument”.

MR BRERETON:   And commencing at line 15 he says:

Request for Withdrawal of Specific Orders made by Judicial Registrar Johnston.

And then, paragraph 1:

Details in the part V –

which is his argument about the merits –

of this Affidavit have been provided on the basis of a “de novo” hearing for the 1997 and 1998 Financial Years.  For reasons provided in Part IV of this Affidavit, it is hereby requested that the orders –

for the latter years –

be withdrawn by this Court.

Now, what that involved was a forensic decision that he would challenge 1999 and 2000 on the basis of whether they should have been made at all and he chose not to deploy an argument on the merits about those years.

With respect, it is beside the point to say this was an unrepresented litigant.  This unrepresented litigant had already brought a series of applications for review and applications to the Full Court in respect of these assessments for child support.  As I understand the complaint, the complaint is that without notice, Justice Rose increased the order for those two years.  The effect of Justice Rose’s orders in all were that he reduced the overall burden of the Judicial Registrar’s order by $3,200; by $4,000 for the earlier

years, and an increase of $400 per year for the last two years.  This Court’s time should not be troubled, after all the litigation that has taken place over these child support assessments, over what boils down to an issue of $800. 

GLEESON CJ:   Yes, Mr Hilbery. 

MR HILBERY:   Your Honours, what, at this stage, and representing the appellant for the first time, I have to interpret the appellant’s basic requests of this Court.  The first request is, your Honour, that there should be placed beyond all doubt, not only for him, but, in my submission, for everyone who may become concerned with any matter in a Children’s Court, or in a court dealing with any aspect, within its jurisdiction, of the welfare of a child, and that is that the paramountcy principle should be restated if necessary by this Court, which basically declared it in 1907 in Goldsmith v Sands, and has never departed from it. 

GLEESON CJ:   So your argument will be that the paramountcy principle applies. 

MR HILBERY:   Yes, your Honour.  And secondly, your Honour, that ‑ ‑ ‑

GAUDRON J:   So to that extent, you are ‑ ‑ ‑

MR HILBERY:    ‑ ‑ ‑ and I think in this I may be making a departure.  It will be respectfully submitted that in the decisions that have been made, especially with regard to the name of the child, that even when deference was supposedly being made to the paramountcy principle, in fact, it was not more than a verbal submission to it.  Implicit in that, your Honour, is what I would respectfully submit should be decided by this Court:  that, in the exception, in the absence of exceptional circumstances, a child should bear the surname of the father. 

GAUDRON J:   Why? 

MR HILBERY:   Mainly, your Honour, for genetic reasons. 

GAUDRON J:   Genetic?  But, as I understand it, the genes descend from both parents. 

MR HILBERY:   Yes, your Honour.  They do. 

GAUDRON J:   I mean, if you are going to run this sort of argument, this does not seem to me to have one wit to do with the paramount interests of the children.  It has only got something to do with the paramount interests of the father. 

MR HILBERY:   No, your Honour, with great respect.  The matter comes before the Court partly, of course, as a result of child support orders and procedures ‑ ‑ ‑

GAUDRON J:   Why should female children ever have to bear their father’s names, I ask? 

KIRBY J:   Well, they have done so for millennia. 

GAUDRON J:   Exactly, but we are coming into things about which minds might differ, which really are about entrenched social attitudes of old men, and do not have a lot to do with the welfare of children. 

MR HILBERY:   With great respect, your Honour, may I put this to the Court, because I think it is of some significance.  Even now, your Honour, there is being commenced – I am fortunately not concerned with the matter – a case in which genetic information concerning the parentage of the child was not, it is alleged, sufficiently stressed, and as a result a child has been born with serious mental defects. 

What has emerged in general scientific literature, as I understand it – and I do not pretend to be conversant with it – but I have gathered the impression that the importance of genetic factors cannot be denied and it is now much more able to be traced.

GAUDRON J:   Well, of what gene is the surname carried?

MR HILBERY:   Your Honour, because in the connection with the father which we hope and, indeed, I would respectfully submit, will, in all likelihood, be expanded as the children grow up and, certainly, is now being quite considerably exercised, the influence of both parents is to be taken into account, of course.  The mother has, in fact, adopted a name for the child which is not her maiden surname, which I would have understood.  It is not anything but the name of her former husband with whom there appears to be no suggestion that she will be reconciled and, in fact, matters of mere, it would seem, embarrassment, have been allowed to intrude in a way that is bound to obscure the connection, genetic and otherwise, of the children with their father.

They are girls and the interest and the concern and, indeed, as I imagine will be the case, your Honour, the continuing support and contacts with the father is vital to their self-esteem and their well-being.  I cannot, with great respect, accede to the proposition that the appellant’s requests and desires in this matter are simply a reflection of current social attitudes.  In my respectful submission, current social attitudes and customs are such ‑ ‑ ‑

GAUDRON J:   I said attitudes of old men.

MR HILBERY:    Are such, with great respect, your Honour, that it is common ‑ ‑ ‑

KIRBY J:   I do not think it is only old men.

MR HILBERY:   ‑ ‑ ‑ for a family to have children in it and for a mother to have care of children who have more than one surname, and that it is for the society to adjust to that matter rather than for the concern of any question of embarrassment or mere convenience to weigh against it.  It is, in my respectful submission, of vital consequence to the development of the child, particularly to girl children, that they maintain and that they expand their contact with the father.  Indeed, I would have regarded, with great respect, that that was one of the ‑ ‑ ‑

GAUDRON J:   No, if the position were reversed and the children were living with the father, should they not bear their mother’s surname to retain and expand their contact with the mother?

MR HILBERY:    Your Honour, it might be that in a parenting order, the appropriate order would be that the children, or that the parent, apply for a deed poll to alter the names of the children to ensure that at least their middle name will be the maiden name of their mother.  That is the connection, that is the familial genetic inheritance that will bear upon their future life.

CALLINAN J:   What about giving consideration to hyphenating both names?

KIRBY J:   That is what is done in the Netherlands, no doubt, in other countries.

MR HILBERY:    Certainly, your Honour, and, indeed, that solution has been adopted in many cases and, indeed, would greatly commend itself and, indeed, would certainly overcome any question of embarrassment or peculiarity in their life at school and amongst their peers.

CALLINAN J:   Perhaps the parties could discuss that over the lunch adjournment.

MR HILBERY:   Your Honour, the difficulty about this case and the reason why it is largely before this Court is that a fundamental error was made quite early in the child support assessment process that obviously caused and might well cause loss of confidence on the part of the father as regards that process and the equity and justice and detailed consideration that he would get under it.

GLEESON CJ:   Mr Hilbery, what do you say to the suggestion made by Mr Brereton that the amount of money at stake in the aspect of this matter concerning the Child Support Assessment Act is $800?

MR HILBERY:   With respect, your Honour, I doubt if that is correct.  What happened when the matter came before Justice Rose, and he exercised jurisdiction with regard to the two later years, is that quite significantly, unlike what a child support review officer would have to do, that is to say, to act on the assumption that is in the Act – and I will find the reference - that a present state of affairs will continue.  Curiously enough, of the two prior assessments, he chose as the basement for the two subsequent assessments the higher and the earlier of the two assessments, the 10,000 level instead of the 7,000 level.

GLEESON CJ:   This is your opportunity to demonstrate to us that, contrary to what Mr Brereton said, the amount of money at issue in that part of the case is more than $800.

MR HILBERY:   I would like to take some instructions from my client, your Honour.

GLEESON CJ:   The second submission that is made against you in relation to that aspect of the case is that the outcome of the proceedings in the Full Court of the Family Court turned not upon any disputed question of principle, but upon the application of principle to the facts and circumstances of the particular case.  Do you wish to make any submissions about that?

MR HILBERY:   I cannot but say, your Honour, that in fact, the interests of the child was, in fact, considered to be a matter of great significance in those judgments.  It was not, in my submission, in the event, given that paramountcy, and it is the submission of the applicant that the paramountcy principle must be first and foremost in every exercise of jurisdiction with regard to the children, not one of the considerations.  It is the consideration, and the other considerations are to be subsumed to it.

GLEESON CJ:   Now, in relation to the aspect of the matter concerning the naming of the child, it has been suggested in argument against you that the decision of the judge at first instance accepted and the decision of the majority of the Full Court, if that is an appropriate expression to use - perhaps I should say the decision in the joint judgment of the Full Court - accepted the very principle that you have come here to support.  So that if your appeal is successful, it will make no difference to the outcome of the case.

MR HILBERY:   That would be so as far as that element of it is concerned, your Honour.  I would certainly wish to argue that, granted that the paramountcy principle may have, in fact, been accepted by the court, that it was not, in fact, given effect to in the actual result which has resulted in the children not merely being with their mother but, in fact, adopting her previous married name and, indeed, having obliterated the reference to their father who now has substantial access to them, who by law will be bound to support them.  One of the consequences of the child ‑ ‑ ‑

GAUDRON J:   So is the mother by law bound to support them.

MR HILBERY:   Pardon me, your Honour?

GAUDRON J:   The mother is also by law required to support them.

MR HILBERY:   Certainly, your Honour, and is clearly doing so.  There is no reflection on the mother’s care of the children, your Honour, far from it.  There is reflection upon the processes by which various amounts were ordered to be paid.  The fact that the parties have not been able to agree has been largely exacerbated by that very matter.

KIRBY J:   Do I understand that your proposition before this Court is that what is the best interests of the child, or the paramount interests of the child, should start from the prima facie position that it is in the best interests of the child, or the paramount interests of the child, that it ordinarily bear its father’s name unless there is some reason shown to the contrary?  Is that the proposition?

MR HILBERY:   That is basically, your Honour, my submission entirely.

KIRBY J:   That is what Lord Jauncey, I think, suggested.

MR HILBERY:   As justifying an appeal to this Court.

KIRBY J:   So you have a different conception of what the best interests of the child, or the paramountcy principle, requires in practice in these cases?

MR HILBERY:   To the extent of being prepared to argue that the decision, having regard to the material before the judge at first instance, having regard to his enumeration of what he thought to be relevant, was a conclusion to which he could not rationally come.  I think I am committed to that position, your Honour.  I fully accede to what has fallen from Justice Callinan and, indeed, from Justice Gaudron.  Of course, the mother’s

influence is vital and, indeed, perhaps should be always accorded in one of the names of the child.

GLEESON CJ:   Right, well I think you have made your position clear now, Mr Hilbery.  Is there anything else you want to put on this?

MR HILBERY:   I have little to add.

GLEESON CJ:   Thank you.  Mr Burmester.

GUMMOW J:   How do you get here, Mr Burmester?

MR BURMESTER:   Your Honour, we say that section 91(1)(a) gives the Attorney-General a right to intervene as of right where there is a matter of public interest.

GUMMOW J:   How? If you rely on the words “any proceedings under this Act”, that cannot be right, can it? That expression is used in section 117, to deal with costs, and we frequently award costs in Family Law matters here on the basis that the proceeding is not under the Family Law Act when it gets here; it is under section 73 of the Constitution for a start.

MR BURMESTER:   Your Honour, we say that there is no reason in section 91, whatever meaning they might have in other sections, why “proceedings under this Act” do not extend to matters where this Court has granted special leave. Section 95 of the Family Law Act deals with special leave and provides that no appeal lies to the High Court except “by special leave of the High Court”.

GUMMOW J:   Well, section 95 is a law by the Parliament imposing restriction on section 73; it is not a grant of jurisdiction. You would agree with that, surely?

MR BURMESTER:   I accept that, your Honour, but, in our submission, when it talks about “any proceedings under this Act”, that extends to any proceedings where issues of law arising under the Family Law Act are in issue.

GUMMOW J:   That is not what the words say.

MR BURMESTER:   It does not, your Honour, say “in the Family Court”, or “in a court exercising jurisdiction under this Act”, in our submission, it should be interpreted broadly.

GUMMOW J:   And what do you say about the decisions on section 117. Do you say, in this proceeding we have no power to order costs, do you, because of 117?

MR BURMESTER:   Well, your Honour, the argument there might be that there is other Commonwealth legislation which, properly interpreted, is the specific rule in relation to costs in this Court.  It does not necessarily mean that where the words “proceedings under this Act” appear in the Family Law Act that it cannot include proceedings in this Court.

GUMMOW J:   Now, if you are here, and you want to put an argument that neither party is putting then you are here permissibly, not by leave, you would be subjected under 91(2) to the risk of paying costs of all the parties, would you not?

MR BURMESTER:    Your Honour, that is always a risk the Attorney‑General exposes himself to by intervening.

GUMMOW J:   It seems to me what you want is an advisory opinion.

MR BURMESTER:    No, your Honour, and when we made these submissions we understood there was an issue of importance which this Court was going to consider, that that had been the basis ‑ ‑ ‑

GUMMOW J:   No, no, an issue between parties, of importance.  You assumed there was an issue of importance between parties, did you not?

MR BURMESTER:    Between parties that the grant of special leave had reflected ‑ ‑ ‑

GUMMOW J:   Yes, I understand that.

MR BURMESTER:   ‑ ‑ ‑ and on the basis of that that issue would be agitated.

GUMMOW J:   That no longer seems to be the case, on one view of it.

MR BURMESTER:    Well, your Honour, I accept that, but if the Court is not to deal with the issue, does not consider this is an appropriate case, then the Attorney has nothing further to say.  On the other hand, the Attorney has made submissions which would at least put to the Court an alternative point of view.

GAUDRON J:   The only matter that seems to be in issue between the parties is whether the best interests of the child requires a rule that prima facie children, whether born within marriage or not, should bear their father’s name.

KIRBY J:   Alternatively, perhaps, where they have received their father’s name and had been registered under that name, that for it to be changed and, in particular, to the name of a former husband, not even the birth name of the mother, that some very good reason should be established for that purpose.

MR BURMESTER:    Your Honour, in our submission, we have dealt with questions of presumption or whether fathers have priority ‑ ‑ ‑

GAUDRON J:   You have not ‑ ‑ ‑

MR BURMESTER:    So it is one of the issues dealt with in our written submissions.

GAUDRON J:   It is not a matter on which you would want to address in any event, is that right?

MR BURMESTER:    Not in relation to the facts of this case, your Honour, other than what is dealt with in our written submissions in terms of presumption or the absence of any presumption.

KIRBY J:   What your submissions do, as I understand it, is by tracing the statutory history to indicate that there is a view that the paramountcy principle, so-called, does not apply to orders of this kind.  Is that correct?

MR BURMESTER:   That is correct, your Honour.

KIRBY J:   How often do applications involving the change of the name of a child come up, have you any idea?  Is this a common issue before the Family Court?

MR BURMESTER:   Your Honour, I do not have any real information on that.  I understand that Magistrates Courts regularly hear ex parte applications for changes of name.  It does appear that in Australia changes of name, judging by the previous Family Court authorities, are often dealt with by use of injunctions rather than parenting orders.

KIRBY J:   Without going into the full argument, Mr Brereton apparently does not accept your submission and refers to two sections of the Act which are relevant to the injunctive relief.  Is that a matter that has caused you to change the submissions that you have put before us in writing?

MR BURMESTER:   No, your Honour, in our submission, one cannot in an application for an injunction treat it as something it is not, such as a parenting order under another section of the Act and, secondly, one cannot say that it comes in indirectly by reference to the welfare of the child or the general welfare jurisdiction of the court.  We say that the power to grant an injunction is a specific section which is not expressly constrained by the paramountcy principle.  That, as we have indicated, does not mean that it is entirely irrelevant, but to that extent we do take issue with the way in which Mr Brereton has put the argument.

KIRBY J:   What practical difference does the difference in the interpretation of the Act that you raise have for a case of this kind from the position that Mr Brereton adopts, as I understand it, as a fall-back position, that on any view it is a ‑ ‑ ‑

MR BURMESTER:   Well, your Honour, what it would require a court to do is consider whether there were other factors that might be relevant in relation to the circumstances in which an injunction was sought, such as, for instance, the behaviour of one of the parties.  A grant of an injunction is an order to restrain someone from doing something and their own conduct may well be relevant.  Now, if one were simply making a parenting order, a positive order, where the paramountcy issue was the sole issue, then those sorts of issues properly would be put to one side, but there may be a difference.  I cannot, your Honour, on the facts of this case obviously make any submissions.

KIRBY J:   There was a period when the appellant was not paying family maintenance, and in so far as that entered into the picture, that could come up under your theory but may not be relevant under the paramountcy principle. 

MR BURMESTER:   Yes, your Honour.  Also what may be relevant would, for instance, whether a parent had in secret, or acted in some way to assume or give a child a name in a misleading manner, or something like that, hiding it from the other parent, circumstances like that that may be relevant in the sort of way that all sorts of relevant circumstances are relevant about whether it is appropriate to grant an injunction.  And, in our submission, that may raise different issues from simply whether one makes a particular parenting order.  The fact that it is an injunction being sought, in that sense, does have significance in the way in which the Family Law Act is constructed. 

GLEESON CJ:   Thank you, Mr Burmester.  Mr Brereton, do you want to say anything in reply? 

MR BRERETON:   So far as it is put that the Court ought to place beyond all doubt the existence and application of the paramountcy principle, it is not, in this litigation, in doubt, and no more inappropriate vehicle in which to achieve that end could be imagined.  In so far as it is now sought to be put that in truth the paramountcy principle was mouthed but not applied, that has not previously been argued.  It is not adverted to in the Full Court’s judgment, it is not adverted to in the written submissions to this point, and it would be an entirely novel approach to the way in which this litigation has been conducted. 

GAUDRON J:   It is proposed on a footing which I would think would need – at least so far as the footing proposed by Mr Hilbery might come into issue – I would think one would need a very great deal of sociological material before you could come to any conclusion in support or against that proposition. 

MR BRERETON:   That, your Honour, and we would put that what is really being argued is that the best interests of the children in the context of naming have a particular content, or at least a particular prima facie content.

KIRBY J:   You would not need a lot of sociological material to know that until now, or at least until recent times, in Australia children normally take their father’s name.

GAUDRON J:   And a lot of girls have resented it for many years.

KIRBY J:   They may, but you do not need sociological material to know that that is the practice that has been observed in Australia until recently and is observed in most countries of the world.

GAUDRON J:   Only when they were married.

MR BRERETON:   Not in the circumstances which pertain to this case, with respect, your Honour, and the convention in this country is that in exnuptial relationships, the children normally take the name of their mother, and that has been the sociological tradition and the cultural tradition ‑ ‑ ‑

GUMMOW J:   And the common law; it is the common law.

MR BRERETON:    ‑ ‑ ‑ and the law.  So ‑ ‑ ‑

KIRBY J:   Yes, but here the child has not taken the name of the mother, it has taken the name of the mother’s former husband.

MR BRERETON:   If one adopts that position, with respect, your Honour, one is then looking not at the application of any settled principle or social tradition.  One is looking at the particular facts of this case and that is where these cases should always start from:  what are the best interests of the child in the circumstances of this ‑ ‑ ‑

KIRBY J:   You say that, but Mr Burmester says that is wrong, or at least that it is not to be taken as paramount.  That is quite an important question.

MR BRERETON:   It may well be, your Honour, in an appropriate case.

KIRBY J:   Well, the question really comes down to whether this is the appropriate case and you and Mr Hilbery have absolutely diametrically opposed views as to what the paramountcy principle or “the best interests of the child” mean.  That is itself an important question.

MR BRERETON:   Perhaps we have diametrically opposed views as to whether the paramountcy principle has a particular content and that is whether one starts with presumptions in it, but that is not an issue on which the Court will derive any assistance from any of the judgments of the lower courts because it is an issue which just has not been addressed.  It was put that - and I think our learned friend for the Attorney put this - that you cannot treat an injunction as a parenting order.  That may well be so, but the way in which, even indirectly, the paramountcy principle applies, is this:  if we accept that this is an application for an injunction under section 68B, we also need to recognise that had someone sought an order associated with the resolution of an issue as to residence or contact, that the children “be known as and bear the name”, such an order that the children “be known as Handcock” could have been made as a parenting order rather than framed as an injunction that someone be restrained from allowing them to be known by any other name. 

If it could be made as a parenting order to which the paramountcy principle would unquestionably apply, then when one is seeking, by injunction, to achieve the same end as a parenting order would achieve, in my submission, necessarily, the paramountcy principle would have to be applied otherwise one would get inconsistent results.

Finally on the Attorney’s intervention - and perhaps I should have looked at this a little earlier, but section 91(1A) contemplates intervention in and contest or arguing not proceedings, but a question arising in proceedings. So what the Attorney intervenes in ultimately is to contest or argue a question arising in proceedings. That assumes that there is an existing controversy in the proceedings and the Attorney intervenes for the purpose of taking a view about that existing controversy.

GUMMOW J:   Well otherwise the section would be invalid.

MR BRERETON:   Because it would not be a matter.  So, in my submission, where there is not a controversy – if the Attorney wanted to intervene on the child support issue, there is a controversy there, and he might, arguably, be entitled to intervene, but on the one question that he wants to intervene on, there is not a controversy so there is no basis for intervention.

GUMMOW J:   In fairness to him, you thought there was.

MR BRERETON:   I accept that, your Honour.

KIRBY J:   And you say there is not a controversy, but listening to you and listening to Mr Hilbery, there seems to be at least a controversy in the ordinary sense of the word, as between your view of what this vague formula means:  “best interest of the child”, “paramountcy principle”; you have both got different starting points.  In the end I might agree with you, and I think there is much force in what Justice Gaudron has been saying, but you are trying to stop the matter being argued when a lot of costs have been incurred.  The public has some general interest in this question.  It is a matter that arises from time to time in the Family Court.  It has gone to the House of Lords.  You just do not want to have it decided.

MR BRERETON:   Not in this case, your Honour.

KIRBY J:   Well, it is a proper notion for you to pursue, to try and knock it out, but everyone is here and it is a question of whether or not we should not listen to the matter and deal with it; you might well win.

MR BRERETON:   Your Honour, it is important that this Court - and I would be the last to argue the contrary - take an interest and give guidance in the field of family law.  A lot of litigation that is contested in this country is conducted in the Family Court. The more interest this Court takes and the more guidance it gives in that area, in appropriate cases, the better.  The problem is this is just not one of those cases.

GLEESON CJ:   Mr Burmester, there is a question for you.

GAUDRON J:   Mr Burmester, there is a provision, is it of the Judiciary Act, for Attorney‑General’s costs certificates?

KIRBY J:   There is a special Act, is there not – the costs?

MR BURMESTER:   The Federal Proceedings (Costs) Act.  That may be the legislation your Honour is referring to.

GAUDRON J:   Yes.

MR BURMESTER:   I do not have a copy in front of me.

GAUDRON J:   Were the Court to accede to Mr Brereton’s submissions, would this be an appropriate case for the application of that Act – of those provisions?

MR BURMESTER:   Your Honour, I do not have any instructions on that.  I could look at that, but ‑ ‑ ‑

GAUDRON J:   Well, I wanted you to tell me about the Act and its provisions, actually, but ‑ ‑ ‑

KIRBY J:   But you have accepted, having intervened, that the costs can be ordered against you, any way.

MR BURMESTER:   Yes, your Honour.

GUMMOW J:   Under section 91(2).

GAUDRON J:   Yes, but I am thinking of a different costs regime.

MR BURMESTER:   Yes, I understand that.

GAUDRON J:   And you are not familiar with that.

MR BURMESTER:   Apart from knowing it exists, your Honour, I ‑ ‑ ‑

KIRBY J:   My recollection is that that Act only bites when a matter is reversed on appeal.  That is my recollection.

MR BURMESTER:   Or there is some other reason why the matter has to be re‑heard.

KIRBY J:   Or the judge has retired or something.

MR BURMESTER:   That is correct, your Honour.  That is what I understood its primary purpose was.

KIRBY J:   It is like the Suitors Fund Act in the federal sphere.

GLEESON CJ:   Thank you, Mr Burmester.  We will adjourn for a short time to consider the course we will take in this matter.

AT 12.50 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.54 PM:

GLEESON CJ:   At the application for special leave to appeal in this matter both parties were unrepresented.  The Court has now had a better opportunity to consider the manner in which this litigation was conducted in the courts below and the issues which the parties desire to argue in this Court.  In particular, we have had the benefit of submissions orally and in writing from counsel for both parties.  In relation to the aspect of the matter that concerns the Child Support Assessment Act 1989, it appears that the amount at issue is modest and that the outcome of the case in the Full Court of the Family Court turned, not upon any disputed question of legal principle, but upon the application of principle to the facts and circumstances of the particular case. The Court is unanimously of the view that, in relation to that aspect of the matter, special leave to appeal should be revoked.

In relation to the aspect of the matter concerning the naming of the child, the decision of the judge at first instance proceeded upon the basis that the paramountcy principle applied, as did the decision of two members of the Full Court of the Family Court, the third member of that court adopting a view which was, for practical purposes, in the circumstances of the present case, not materially different.  The appellant wishes to argue that the paramountcy principle applies and the respondent accepts that.

A majority of the Court is of the view that in so far as there are questions about the application and content of the paramountcy principle, because of the manner in which the case has been conducted in the courts below, this case is not an appropriate vehicle for the resolution of those questions.  A majority of the Court is of the view that special leave should be revoked in relation to that aspect of the matter also.

KIRBY J:   I take a different view in respect of the motion as it affects the point in the appeal concerning the surnames of the children.  I indicated my opinion during exchanges with counsel for the respondent when he argued in support of his motion.  In brief, my reasons are as follows:

First, the question of the rule applicable in the Family Court of Australia, in granting an injunction concerning the name, or change of name, of a child of a marriage or relationship that has broken down, is an important one.  It falls to be decided in a society in which attitudes to such questions have changed markedly in recent years.  Does the law require that the “paramountcy principle” be applied in such a case so that the best interests of the child concerned are treated as paramount?  Or are the best interests of the child simply one of the many matters to be taken into account?  This is a question of general significance, not only for the present appeal.  Its resolution affects any case in which the naming of a child or the change of a name of a child is before the Family Court or other Australian court for decision.

Secondly, a dispute as to what the correct principle is arose between the judges in the Full Court in this case.  See Flanagan v Handcock unreported, Family Court of Australia (Full Court) 2 March 2000.  The joint reasons of Kay and Holden JJ took one view.  The separate opinion of Finn J took another.  The Attorney-General of the Commonwealth has intervened in this appeal.  He has done so considering that the principles involved “affect[ed] the public interest, warranting his intervention”. He filed written submissions which suggest that, by reason of supervening amendments to the Family Law Act, effected by the Family Law Reform Act 1995 (Cth), the correct principle is that the paramountcy rule does not apply in respect of an injunction such as was sought in this case. If this were a correct view of the law and a matter were before this Court for decision as an appeal, no amount of agreement between the parties could deflect this Court from stating the law as it found it to be. If the Attorney‑General’s submission is correct the past authority of the Full Court of the Family Court in Monticelli v McTiernan (1995) 120 FLR 83 no longer represents the law. That was the view stated by Kay and Holden JJ in this case [60]; but Finn J did not agree [42]. That difference tenders an important controversy to this Court. It does so in an appeal that is now before it.

Thirdly, it is important for the exercise of discretions in such matters that they should be performed according to law.  Self‑evidently such exercise not only concerns the interest of the parents but also the interests of the children whose names are in question.  If the submissions of the Attorney‑General of the Commonwealth are correct, the primary judge in this case (Rose J) did not apply the correct legal principle.  He approached the case before him guided by the “paramountcy principle”:  Flanagan v Handcock unreported, Family Court, 30 June 1999 per Rose J at 17-20 [6.1].  With respect, it is not correct, in my opinion, to say that there was no difference between the appellant and the respondent on this point.  True, they both embrace the formula, “the best interests of the child”, and the suggestion that that criterion is “paramount”.  However, they each take different views as to what those expressions mean.  This was made plain by the submission of the appellant’s counsel that the “best interests of the child” will normally be that it should bear the name of the father, as children in Australia and elsewhere have hitherto generally done.  Originally the children in this case took the name of their natural father (the present appellant).  Their births were registered in that name.  By law he is obliged to, and does, contribute financially to their maintenance.  He retains contact with them and wishes them to bear his name.  However, the surname given by the respondent to the two children of the parties is not the birth name of the respondent.  It is the name of the respondent’s former husband from whom she is now estranged.  In the end, I might be persuaded to agree to the submissions filed by the respondent and to reject the submissions of the appellant.  But, in my opinion, the appeal should be heard, and full argument considered, in order that that question should be resolved.

Fourthly, the issue of the naming of children, or the change of the name of children, is one which has reached final courts of appeal in recent years:  see eg Dawson v Wearmouth [1999] 2 AC 308. It has also been considered in courts of high authority in the United States and elsewhere. It is desirable, in my view, in light of the difference which emerged in the Full Court of the Family Court in this case that this Court should play its part to help resolve the question for this country. It cannot be said to be hypothetical. At least one outcome of the present appeal might be a requirement that the exercise of the original discretion by the primary judge be set aside so that it could be exercised according to law in accordance with the correct statement of the law (and consequential guidance) expressed by this Court.

Fifthly, the costs of this appeal have been fully incurred by the parties.  They are here.  They are ordinary citizens who, I would be willing to infer, are not flush with funds such that the wasted costs of proceedings in this Court could be borne with a shrug of the shoulders.  They have each filed extensive written submissions.  These have been read in preparation for the hearing of the appeal.  They are each now represented by counsel.  The Attorney‑General of the Commonwealth has intervened by counsel.  In my opinion, this Court should hear and determine the issue on which the members of the Full Court differed.  It should proceed to hear the appeal for that purpose:  see South-West Forest Defence v Conservation Department (1998) 72 ALJR 837 at 838 [12]; 154 ALR 405 at 407.

Sixthly, I deprecate a practice of acceding to applications to revoke special leave once granted, except in the most exceptional cases.  Such applications consume time in the hearing of an appeal which should rather be devoted to the hearing of the matters of substance once the appeal has passed the gateway of special leave.  More than an hour of the hearing of this appeal was consumed by the motion.  This Court will now leave the matter, without determining its merits, although the parties have incurred substantial costs, inconvenience and anxiety over a sensitive and important question of significance to them, their daughters, the Family Court and the Australian community.  They should not ordinarily be sent away without having the resolution of the appeal on its merits.

For these reasons, I would reject the motion.  I would proceed to determine the appeal in respect of which McHugh J and I granted special leave on 13 October, 2000. 

GLEESON CJ:   The order of the Court is that special leave to appeal is revoked and there will be no order as to costs.  The Court will adjourn. 

AT 1.02 PM THE MATTER WAS CONCLUDED