FAMILY COURT OF AUSTRALIA
| BANT & CLAYTON (NO. 2) | [2019] FamCAFC 200 |
| FAMILY LAW – APPEAL – PRACTICE & PROCEDURE – Appeal against a dismissal of an application for final property settlement and spouse maintenance orders – Where proceedings took place in Dubai – Claim of res judicata estoppel – Identity of cause of action – Where the cause of action is sufficiently analogous to that which was adjudicated in the Dubai Courts to give rise to a res judicata estoppel – Where it is contended that the primary judge erred in her conclusion that the proceedings in Dubai left open the question of property adjustment which could be considered in the Australian proceedings – Where her Honour erred in seeking a direct analogue in the Dubai law – Challenge to her Honour’s conclusion that the question of alimony had not been determined by the Dubai Court, leaving it to be litigated in the Australian proceedings – Where the wife had available to her but did not press for an order as to her rights to alimony – Wife unable to now bring a claim for spouse maintenance – Challenge successful – Appeal allowed – Wife’s proceedings for an adjustment of property and spouse maintenance orders permanently stayed – Costs certificates awarded to both parties in relation to the appeal. FAMILY LAW – APPEAL – Leave to appeal – Where the decision is attended to by sufficient doubt to warrant reconsideration by the Full Court – Substantial injustice – Leave to appeal granted. |
| Family Law Act 1975 (Cth) s 79 Federal Law No. 28/2005: On Personal Status, Article 62.1 (Issued on 19/11/2005 Corresponding to 17 Shawal 1426 H. On personal Status) |
| Black v Yates [1992] QB 526 Bower, George, Spencer and Kenneth R Handley, Spencer Bower and Handley: Res Judicata (LexisNexis Butterworths, 4th edition, 2009) |
| APPELLANT: | Mr Bant |
| RESPONDENT: | Ms Clayton |
| FILE NUMBER: | LEC | 310 | of | 2013 |
| APPEAL NUMBER: | NOA | 89 | of | 2018 |
| DATE DELIVERED: | 7 November 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Ryan JJ |
| HEARING DATE: | 20 June 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 September 2018 |
| LOWER COURT MNC: | [2018] FamCA 736 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Walker SC with Mr Todd |
| SOLICITOR FOR THE APPELLANT: | Watts McCray (NSW) Pty Ltd |
| THE RESPONDENT: | In Person |
Orders
Leave to appeal be granted.
The appeal against the order of Hogan J made on 18 September 2018 be allowed.
The said order be set aside.
The Third Amended Initiating Application filed…
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- AGLC
- Bant & Clayton (No 2) [2019] FamCAFC 200
- Case
- [2019] FamCAFC 200
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the Dubai proceedings could be considered analogous to those in Australia to give rise to a res judicata estoppel, and whether the primary judge correctly interpreted the Dubai court's decisions. The court also considered whether the wife's failure to press for an order regarding her rights to alimony in Dubai precluded her from claiming spouse maintenance in Australia. The Full Court found that the primary judge erred in her interpretation of the Dubai court's decisions, and that the wife was precluded from bringing a claim for spouse maintenance in Australia.
The Full Court concluded that the Dubai proceedings provided a sufficient analogue to the Australian proceedings to invoke a res judicata estoppel, and that the wife's failure to pursue an order for alimony in Dubai precluded her from doing so in Australia. The court allowed the appeal, set aside the primary judge's order, and permanently stayed the wife's proceedings insofar as they related to interim and final spouse maintenance and property settlement orders. The Full Court also granted costs certificates to both parties in relation to the appeal, reflecting the appropriate allocation of costs incurred during the proceedings.
In summary, the Full Court allowed the appeal, set aside the primary judge's order, and permanently stayed the wife's proceedings regarding spouse maintenance and property settlement. The court found that the Dubai proceedings precluded the wife from claiming spouse maintenance in Australia, and granted costs certificates to both parties in relation to the appeal.
Orders
Orders of the court
1.
Leave to appeal be granted.
2.
The appeal against the order of Hogan J made on 18 September 2018 be allowed.
3.
The said order be set aside.
4.
The Third Amended Initiating Application filed by the respondent wife on 3 November 2016 be permanently stayed, insofar as it relates to the interim and final spouse maintenance and property settlement orders sought.
5.
There be no orders as to costs.
6.
The Court grants to the appellant husband a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by him in relation to the appeal.
7.
The Court grants to the respondent wife a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by her in relation to the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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