Flanagan v Handcock

[2000] HCATrans 444

Office of the Registry
  Sydney  No S41 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 12.30 PM

Copyright in the High Court of Australia

MR J.E. FLANAGAN appeared in person.

MRS N.I. HANDCOCK appeared in person.

McHUGH J:   Would you now address your submissions to the Court in S41 please, Mr Flanagan.

MR FLANAGAN:   S41 and there is also S43, your Honour.

McHUGH J:   I appreciate that.  I must say, I thought myself that of all your applications, S43 seemed to be the one that had the most substance in it.  But S41, you might deal with that.

MR FLANAGAN:   Yes, your Honour.  In S41 of 2000, I apply for special leave to appeal from the whole of the judgment of Finn, Kay and Holden given on 17 November 1999 in the Full Court of the Family Court of Australia and provided to myself by way of letter dated 2 May 2000.

McHUGH J:   Now, can I just interrupt you to ask – we do not have the letter.  It is not part of the application book and, so far as one can judge from it, according to the respondent’s view, it really did not contain any matter that would affect this case.  What can you say about that?

MR FLANAGAN:   What I can say is that in one of my submissions – if you would not mind bearing with me for a minute.

McHUGH J:   Yes.  The only thing I saw in reading these appeal books - I hope I did not miss it, but the only reference to the contents of the letter is that set out in the respondent’s summary of argument.  The Full Court in this case unanimously held that the further evidence would not have produced a different result in the proceedings and refused to admit it.  Quite apart from any other aspect, how can we examine that issue when we do not have the document before us?

MR FLANAGAN:   Yes, your Honour, if you would just bear with me for a minute.

McHUGH J:   Yes, certainly, you take your time.

MR FLANAGAN:   Thank you.  Yes, there it is.  I can refer you to page 127 of the joint application book, your Honour.

McHUGH J:   Right. 

MR FLANAGAN:   Paragraph 94.

McHUGH J:   Yes, that is a statement of the court, but what I was concerned about was the actual letter itself.

KIRBY J:   Was that marked for identification in the court?

MR FLANAGAN:   No, your Honour.  I did submit it as part of the Court documents but the Registrar said it was unimportant, so it was not included in the final application book.  It would be in the file.  It would be in the High Court file.

McHUGH J:   Well, it is rather unsatisfactory but, anyway, you carry on.  You put your submissions.

MR FLANAGAN:   In S41, the decision was made on 17 November 1999, but the - - -

McHUGH J:   You did not get the judgment until - - -

MR FLANAGAN:   The judgment did not arrive until 2 May.

McHUGH J:   Yes.  I do not think you need worry about extension of time.

MR FLANAGAN:   Okay, that was the reason, your Honour.

McHUGH J:   In so far as you need extension of time, it is granted.

MR FLANAGAN:   Thank you, your Honour.  This is an important question of law and an issue of general public importance to resolve in that their Honours Finn, Kay and Holden were mistaken to the law in their Honours’ reasons for judgment.  This is with regard to the adducing of further evidence in matters in which the “best interests of the children” principle is involved.  Their Honours did refer to the case of - - -

McHUGH J:   They referred to CDJ.

MR FLANAGAN:   CDJ, yes.  Yes, they referred to that but they referred to it in a different sense.  They did not refer to it in the sense that the “best interests of the children” principle were involved because, before the Full Court on that day there were actually two applications.  One application was concerning the application – sorry - - -

McHUGH J:   Yes, there was the name change.

MR FLANAGAN:   The name change and also there was the assessment. 

McHUGH J:   Yes.

MR FLANAGAN:   Now, the injunction concerned is under the Family Law Act 1975 and that concerns the “best interests of the children” principle. The Child Support (Assessment) Act covers the assessment, and that does not concern the “best interests of the children” principle.  Therefore, their Honours – I said to them, “This evidence is put forward to you because Mrs Handcock said she felt that the determination by the Child Support Review Office was incorrect and that they had either misconstrued information she had given them or for whatever other reason, and therefore I wished to bring that forward as evidence on the basis to test the credibility of Mrs Handcock as a witness.”  Now, that was on the “best interests of the children” principle because, before His Honour Justice Rose, he had accepted a lot of the evidence that Mrs Handcock had given him regarding the name of the children and I believe that he was mistaken in that regard.

McHUGH J:   I know that is the way you put it but the problem is – you have certainly done a great deal of research in all these cases and it must be obvious to you that mere error by a court below is not a ground for granting special leave.  As you are probably aware, there are tens of thousands of cases decided in Australia every year; several thousand by intermediate and Full Court.  We hear, at best, 60 or 70 cases a year.  So, there has to be something special about it.  Here, the Full Court unanimously held that this letter would not have produced a different result before the judge and, on that basis, they refused to admit it.  It does not seem to me at the moment to suggest a special leave point.  It would be different if they had dealt with it or they had refused to apply the “best interest” grounds, but can you point to anything in their judgment that they dealt with it on that basis?

MR FLANAGAN:   No.  They considered it more from the point of view of the assessment rather than from the injunction regarding the name change.  I can refer you to a transcript of the hearing which is not before you where Justice Kay said – he referred to the Child Support (Assessment) Act.  He assumed I was bringing up the letter because of the review of the assessment, not because of the name change, and I made it quite clear to their Honours that that was not the case, but she was mistaken.

McHUGH J:   Yes.  I think you have a point there but they seem to have - arguably, they erroneously regarded the letter as relevant to the issues in the child support assessment, not as relevant to the application to restrain the mother from changing the surname of the child.  But even if that is the case, is it one for the grant of special leave?  At best, it simply means that the Full Court erred in refusing to admit the letter.  If we granted special leave every time a judge erred in admitting evidence, we would have thousands of cases in this Court, to be frank, Mr Flanagan.

MR FLANAGAN:   Okay, your Honour.  I can only say what I have said.

McHUGH J:   Yes.  Well, do you want to put anything further?

MR FLANAGAN:   No, that is all, your Honour.

McHUGH J:   Thank you, Mr Flanagan.  Yes, we need not hear you on this matter, Mrs Flanagan.

Mr Flanagan, the applicant in this application for special leave to appeal, contends that this application raises a number of points which would warrant the grant of special leave.  But, in substance, the claim is that the Full Court of the Family Court erred in refusing to admit a letter written by the respondent as further evidence in the appeal.  The Full Court unanimously held that the further evidence would not have produced a different result in the proceedings below and refused to admit it.  That being so, the case is not one for the grant of special leave to appeal.

Mr Flanagan contends, with some force, that the Full Court erroneously regarded the letter as relevant to the issues in the child support assessment and not as relevant in the application to restrain the mother from changing the children’s surname.  But even if that is so, the case is not one for the grant of special leave to appeal.  At its highest, it would simply mean that the Full Court erred in refusing to admit the letter, and that is not a ground for the grant of special leave.

Moreover, from what we know concerning the contents of the letter, so far as it is set out in the mother’s summary of argument – and the letter is not otherwise before us – its admission could not have affected the grounds upon which the Full Court dismissed the applicant’s appeal against the refusal to grant him the injunction that he sought.

Accordingly, in matter No S41 of 2000, the application will be dismissed with costs.

KIRBY J:   May I just say, Mr Flanagan, that no court in any land can take away genetics.  The genetics are established by scientific reality.

MR FLANAGAN:   Yes, your Honour.

AT 12.42 PM THE MATTER WAS CONCLUDED