Flanagan v Handcock S43/2000

Link copied
Case Copied 8 min read

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,…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Flanagan v Handcock S43/2000 and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2000] HCATrans 601
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Flanagan v Handcock*. The dispute concerned the interpretation of a clause in a deed of settlement, specifically whether it imposed a personal obligation on the respondent, Mr Handcock, to pay a sum of money to the appellant, Ms Flanagan, or whether the obligation was confined to the assets of a particular trust.

The central legal issue before the High Court was whether the language of the settlement deed created a personal covenant by Mr Handcock to pay the sum of $100,000 to Ms Flanagan, or if his liability was limited to the extent of the assets of the Handcock Family Trust. This required the Court to consider the principles of contractual interpretation, particularly in the context of deeds and settlement agreements.

McHugh and Kirby JJ, in their joint judgment, found that the wording of the deed clearly indicated a personal undertaking by Mr Handcock. They reasoned that the use of the phrase "I hereby covenant" and the absence of any express limitation on his liability meant that he had assumed a personal obligation to pay the sum. The Court emphasised that where a party to a deed intends to limit their liability to the assets of a trust, this must be made explicit in the deed itself. The appeal was allowed, and the orders of the lower courts were set aside.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.