Bant & Clayton (No 2)
[2019] FamCAFC 200
•7 November 2019
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 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.
There be no orders as to costs.
The Court grants to the appellant husband a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (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.
The Court grants to the respondent wife a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act1981 (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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bant & Clayton (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 89 of 2018
File Number: LEC 310 of 2013
| Mr Bant |
Appellant
and
| Ms Clayton |
Respondent
REASONS FOR JUDGMENT
On 18 September 2018 a judge of the Family Court of Australia dismissed an application of Mr Bant (“the husband”) that the application for final property settlement orders and orders for spouse maintenance filed by Ms Clayton (“the wife”) be permanently stayed. The husband seeks leave to appeal, and if leave is granted, to appeal that order.
The basis on which the husband sought a permanent stay was that in February 2015 judgment was delivered and orders made in a Dubai Court, the effect of which, it was contended, gave rise to res judicata estoppel, and is thus a bar to the wife continuing proceedings in Australia with respect to property or related financial matters as between the parties.
The parties met and began living together in Dubai in the United Arab Emirates (“the UAE”) in mid-2006 and were married according to Sharia law in 2007. There is one child of their relationship who was born in 2009. The parties separated in July 2013 while in Australia. The wife is an Australian citizen and the husband is a citizen of the UAE. After separation, the wife and the child continued to live in Australia.
During their relationship the parties lived in Australia and Dubai and travelled frequently. The property of the husband is extensive and is located in the UAE and in other countries. There are three properties in Australia, one of which is the residence in which the wife and child live.
On 15 July 2014 the husband commenced divorce proceedings in Dubai (Personal Status Case No. …/2014). Those proceedings also sought a waiver (in the sense of extinguishment) of the matrimonial rights of the wife. There were no property proceedings then on foot in Australia.
Although the wife was notified of those proceedings and had lawyers acting as agents for her in Dubai, she did not appear in the Dubai proceedings and orders were made on the husband’s application in late February 2015. The orders granted the husband a divorce and relevantly, had the effect of bringing to an end the wife’s rights to seek property orders under the law of Dubai. No appeal was brought within the relevant appeal period and no provision exists for that period to be extended.
Thus, her Honour was required to consider whether the proceedings in Dubai determined the same cause of action sought to be litigated in the proceedings brought by the wife in the Family Court of Australia.
There was no dispute that her Honour correctly identified the relevant principles, namely that for a claim of res judicata estoppel to be made out it is necessary for the Court to be satisfied that in prior proceedings a court or tribunal of competent jurisdiction over the same subject matter and the same parties has by decree, order or judgment, finally and conclusively determined the same cause of action (George Spencer Bower and Kenneth R Handley, Spencer Bower and Handley: Res Judicata (LexisNexis Butterworths, 4th edition, 2009) at page 1; Republic of India v India Steamship Co Ltd (The Indian Endurance and The Indian Grace) [1993] AC 410).
It was accepted that the relevant applicable law in the UAE is Federal Law No.28 of 2005 concerning Personal Status (“PSL”). It is by reference to this law that her Honour extracted the legal principles that applied to the parties’ divorce in Dubai, and while the articulation of those principles are unchallenged, her Honour’s interpretation of those principles is the subject of the appeal.
Her Honour concluded that the relevant law in the UAE provided that marriage is contractual between the parties and the contractual terms provide for two dowries – one paid on the entry into the marriage contract and the other referred to as a “deferred dowry” paid on the eventuality of one of two “fates”; they being death or divorce. Her Honour found that the marriage contract also provided for the payment of alimony and afforded the wife the right of “non-interference” with her personal property. Her Honour further found that a wife’s rights to alimony can be forfeited if a wife abandons the “conjugal domicile” without lawful excuse or if a wife refuses to travel with her husband without lawful excuse. Her Honour concluded that on the evidence before her, either or both of those conditions arose at the time of the separation in July 2013.
Her Honour said:
129. I accept that, pursuant to Article 55 of the PSL, the Applicant had certain rights toward the Respondent following their marriage in Dubai in July 2007. These relevantly included alimony and the right of “non-interference” with her personal property. I accept that, according to the law of Dubai, alimony is accorded a priority or privilege over all other debts and that it is due to a wife by virtue of a valid marriage contract.
130.I accept that the law of Dubai provides that, included within the ‘effects’ of marriage, is that the Applicant remained free to dispose of her property and the Respondent could not, without her consent, dispose of the same. Further, I also accept that the law of Dubai is that each of the Applicant and Respondent “has independent financial assets” and, if they participated together in the development of a property, building or dwelling place or the like, they could each claim their share in these on divorce or death. Save for this, though, there is nothing to suggest that the law of Dubai accords to the Applicant (or any wife) any right under the Personal Status Law to make a claim on, or against, the property of the Respondent (or any husband) following divorce.
(Emphasis added) (Footnotes omitted)
Her Honour continued:
192. I accept that the law of Dubai contains no provision for the redistribution of assets or property of the parties to the marriage contract on the breakdown of the marriage or divorce, other than as is prescribed within, or by the terms of, the marriage contract. I accept that the law of Dubai is such that there is no provision for the alteration of property interests in property owned by the parties to a marriage other than in respect of jointly owned property within the jurisdiction where a civil claim is raised by one of the parties, supported by evidence of payment of funds used to purchase the property so as to displace a presumption of joint ownership.
193. I accept the submission that it is unnecessary that the legal regime for divorce in Dubai be identical to the legal regime for divorce in Australia; what is necessary is that the proceedings in Dubai dealt with the same subject matter. I consider that the causes of action determined by the Dubai proceedings are the divorce of the parties in Dubai and the financial consequences associated with divorce according to the law administered in Dubai - which I consider to be limited to the issue of the deferred dowry and alimony.
194. I consider that the issues dealt with in the Dubai proceedings and by the Dubai divorce do not include the issue of the existence of a party to a marriage’s right to claim property from the other party because such a right does not exist in Dubai: the law of Dubai does not accord to parties any rights to seek property settlement or adjustment orders of the kind prescribed by s 79 of the Act following separation or divorce; their only right is to seek orders in relation to property within the jurisdiction in which each have invested.
195. Given this, the Dubai divorce did not determine any rights of the Applicant analogous to those afforded to her by s 79 of the Family Law Act 1975 (Cth) because she does not have such rights in Dubai.
The thrust of the challenge to her Honour’s order is that she erred in concluding that the law of Dubai did not allow for redistribution of the parties’ assets, thus concluding erroneously that the Dubai proceedings left open the question of adjustment of property interests which could be considered in the Australian proceedings.
Critical to an understanding of the ground is Article 62.1 of PSL which states:
A woman having reached the age of full capacity is free to dispose of her property and the husband may not, without her consent, dispose thereof; each one of them has independent financial assets. If one of the two participates with the other in the development of a property, building a dwelling place or the like, he may claim from the latter his share therein upon divorce or death.
Thus it was argued by the husband that her Honour’s conclusion at [130] that the PSL did not allow for the wife to make a claim on, or against, the property of the husband following divorce “save for” the provision of Article 62.1 was erroneous because Article 62.1 did in fact make that provision. It was contended that her Honour’s error arose from her seeking an exact analogy between the provisions of s 79 of the Family Law Act 1975 (Cth) (“the Act”) and the law of Dubai.
Leave to appeal
The wife, who appeared without legal representation, does not oppose leave to appeal being granted. In any event, we consider that not only is the issue here important and relevant enough for leave to be granted, but also, in all the circumstances, the decision is attended by sufficient doubt to warrant reconsideration by the Full Court, and substantial injustice would result if leave were refused, supposing the decision to be wrong.
Thus, leave to appeal will be granted.
Identity of the cause of action
The foundation of res judicata, as her Honour correctly said, is the existence of a prior final judicial determination of a court of competent jurisdiction which involves the same parties and the same cause of action to that which is sought to be re-agitated in another court, here, the Family Court of Australia.
The determination of this aspect, that is the identity of the cause of action, requires a consideration of the underlying factual situation (Black v Yates [1992] QB 526, 543; Republic of India v India Steamship Co Ltd (The Indian Endurance and The Indian Grace) [1993] AC 410, 419-421). The primary judge found that the cause of action here is the financial consequence to the parties arising from the breakdown of the matrimonial relationship.
As was said in Henry v Henry (1996) 185 CLR 571 at 591-592:
If separate proceedings are commenced between husband and wife in different countries, differences in procedure, in available remedies and in the substantive law with respect to marriage and divorce will ordinarily ensure that the proceedings are different in significant respects. However, the proceedings will ordinarily be concerned with the same controversy. And that will be so even if the initiating party is not the same and even if the proceedings seek inconsistent remedies or outcomes. The marital relationship lies at the heart of all proceedings between husband and wife with respect to their marital status, especially proceedings for the dissolution of marriage. In such cases, it is the marital relationship itself which is the subject of controversy. And if the marriage is still subsisting, disputes with respect to property, maintenance and the custody of children will ordinarily be but aspects of an underlying controversy with respect to the marital relationship.
(See also Caddy and Miller (1986) FLC 91-720 at 75,234 where the cause of action was identified as the “settlement of the property of the parties consequent upon the dissolution of their marriage”.)
Even when the outcome of a decision in the other court may be strikingly different, the question for determination is the identity of the underlying cause of action. In Republic of India v India Steamship Co Ltd (The Indian Endurance and The Indian Grace) [1993] AC 410, Lord Goff of Chieveley at 415 said:
...Indeed, it has to recognised that consequences of this kind may result from the application of the principle, which is founded upon the public interest in finality of litigation rather than the achievement of justice as between the individual litigants…
In Taylor v Hollard (1902) 1 KB 676 it was said that “the fact that a party in local proceedings may receive more or less than the foreign proceedings does not prevent a cause of action in estoppel arising” (see also Caddy and Miller (1986) FLC 91-720 at 75,234).
The doctrine explicitly embraces national differences between the countries and the fact that different law will be applied in the two jurisdictions does not detract from the identity of the cause of action (see Black v Yates [1992] QB 526, 543; Letang v Cooper [1965] 1 QB 232, 243-244 per Diplock LJ).
The application of the doctrine has been extended to circumstances where a party who might be expected to raise a claim in the proceedings does not. In Henderson v Henderson (1843) 67 ER 313 Wigram V.C at [115] held:
...where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.
(See too, Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602)
Having found that the cause of action is the financial consequence to the parties arising from the breakdown of the matrimonial relationship, the issue is whether that is sufficiently analogous to the cause of action adjudicated in the Dubai Court under Article 62.1 to give rise to a res judicata estoppel.
Turning then to the first ground of challenge to her Honour’s order, it was argued that her Honour was entirely correct in finding that the cause of action is the financial consequence of the breakdown of the matrimonial relationship. The first ground however, asserts that her Honour erred in concluding that the law of Dubai makes no provision for the redistribution of assets or property of the parties to the marriage contract consequent on the breakdown of the marriage or divorce (at [192]).
Her Honour had earlier referred to the provisions of Article 62.1 which she identified as an exception to that statement. Clearly, that Article, by its terms, provides for the adjustment of property as between spouses on divorce and provided the wife with the means by which she could have sought such property adjustment. True it is that the operation of s 79 of the Act might produce a different, perhaps more advantageous result for the wife, however, the question to be determined was whether the Dubai decree finally determined the same cause of action between these parties, that is the financial consequences of the marital breakdown.
We are of the view that it did and her Honour in seeking, in effect, a direct analogue in the Dubai law to s 79 of the Act, erred and her subsequent conclusion that the Dubai decree did not determine the parties’ rights to seek property adjustment from the other was incorrect.
We further accept the argument that Article 62.1 offered the wife a remedy to obtain an adjustment of property as between her and the husband and, having not sought to do so, the “Henderson extension” to which we have earlier referred, operates to prevent her attempting to make such a claim in the Family Court of Australia.
This challenge succeeds.
Ground 2 challenges her Honour’s conclusion that the question of alimony had not been determined by the Dubai court leaving that question open to be litigated in the Australian proceedings.
Her Honour accepted that the wife had rights to alimony under the Dubai law which was conceptually similar to spouse maintenance (at [129] and [196]). She further concluded that had that issue been determined in the Dubai proceedings, it would operate as a bar to her seeking spouse maintenance under the Act. However, her Honour found that the issue had not been decided in Dubai, thus leaving it open to the wife to pursue in Australia. Her Honour concluded at [196] that the Dubai Divorce and Judgment did not in fact deal with that issue at all but, rather described it as “untimely”.
It was argued that her Honour’s conclusion was incorrect because she confused the cause of action with the outcome.
The husband’s application in the Dubai court was twofold:
Second: Divorce the plaintiff from the defendant, dropping all her marital rights that are associated with that divorce in terms of all type of alimony, deferred dowry and others as well as compensating him for all material and moral damage at the discretion of the Court and to observe all the plaintiff’s other rights
(Annexure A to wife’s affidavit, filed 12 June 2015 at page 4)
The decree in this regard recorded:
As for his request to drop off her deferred dowry and her alimony, this subject is untimely. On top of that, the other party did not demand them and hence there is no need to make reference to them in the text…
(Annexure A to wife’s affidavit, filed 12 June 2015 at page 14)
The husband wished to be absolved from paying the deferred dowry and he sought the wife’s rights to alimony to be extinguished. It seems from the ruling that the husband did not succeed on either count. However, his success or otherwise is immaterial to this point which is not whether the husband obtained a favourable outcome in relation to alimony but that the Dubai law provided a mechanism for the determination of alimony; it was engaged by the husband and determined as being “untimely” because the wife had not pressed her claim.
The wife had rights to alimony but she did not seek to press for an order for her support, as is plain from the facts and referenced in the determination of the Dubai court. While the husband’s plaint was not accepted, the application was available to the wife and the issue was finally heard and determined. The wife cannot now bring a claim for spouse maintenance by operation of the “Henderson extension”. Thus, nothing remains for the wife to agitate in the Family Court of Australia proceedings.
Thus, this challenge also succeeds.
Conclusion
We have found that both grounds of appeal have merit, and accordingly the appeal will be allowed.
In that event, we propose to accede to the husband’s application and re-exercise the primary judge’s discretion. We will order that the wife’s proceedings for adjustment of property pursuant to s 79 of the Act and her applications for spouse maintenance either final or interim be permanently stayed.
Costs
As is usual, at the hearing of the appeal, we sought submissions on the costs of the appeal to save the parties the time and trouble of making those submissions when the appeal was determined.
Although the husband sought an order for costs against the wife in the event that the appeal was successful, we see no reason why such an order would be made. Nothing done by the wife or those representing her led the primary judge into error.
Both parties sought costs certificates in the event that the appeal succeeded on an error of law, which it has. Although the wife appeared for herself, she incurred some legal costs and other disbursements in the preparation of the appeal and we will order costs certificates for both parties in relation to the appeal.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Ryan JJ) delivered on 7 November 2019.
Associate:
Date: 7 November 2019
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Appeal
-
Res Judicata
-
Issue Estoppel
-
Jurisdiction
8
3
2