CLAYTON & BANT

[2018] FamCA 736

FAMILY COURT OF AUSTRALIA

CLAYTON & BANT [2018] FamCA 736

FAMILY LAW – PRACTICE AND PROCEDURE – JURISDICTION – whether the  Respondent should be heard on his application for a permanent stay of the property settlement proceedings commenced by the Applicant – whether the Respondent should be heard on his application for a permanent stay of the proceedings for spousal maintenance orders commenced by the Applicant – whether property settlement proceedings and proceedings for spouse maintenance commenced by the Applicant in Australia should be permanently stayed on the basis of the application of the principles of res judicata or cause of action estoppel given that Respondent obtained a decree of divorce in Dubai – whether decree obtained in Dubai should be recognised in Australia.

Family Law Act 1975 (Cth)

Fahmi and Fahmi (1995) FLC 92-637
Hadkinson v Hadkinson [1952] 2 All ER 569
Watson v Watson (2013) FLC 93-530

APPLICANT: Ms Clayton

RESPONDENT: Mr Bant

FILE NUMBER: LEC 310 of 2013

DATE DELIVERED: 18 September 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 3 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd SC, with him, Ms McDiarmid and Mr Carter

SOLICITOR FOR THE APPLICANT: G J Legal

COUNSEL FOR THE RESPONDENT: Mr Walker SC and Ms Christie

SOLICITOR FOR THE RESPONDENT: Watts McCray

Orders

IT IS ORDERED THAT

1. The Respondent’s application for a stay of the Applicant’s application for final orders is dismissed.

2. The Respondent’s application for a stay of the Applicant’s application for relief as particularised in paragraphs 5, 6 and 8 of the Initiating Application filed 4 December 2014 and as particularised in paragraphs 1, 2 and 4 of the interim orders sought in the Second Amended Initiating Application filed 24 February 2015 is dismissed.

3. In the event that a party seeks an order that the other party pay the costs of and incidental to the application for a stay of the Applicant’s proceedings:

   (a)if thought necessary by a party, that party has leave to file a further affidavit by that party containing any evidence relevant to the issue of costs and one other affidavit in support of the same, provided that such affidavits are filed within thirty (30) days of the date of this order; and

   (b)the party seeking an order for costs shall, within sixty (60) days of today, file and serve written submissions in support of any such application for costs;  and

   (c)the party from whom costs are sought shall, within a further thirty (30) days thereafter, file and serve any written submissions in answer to the submissions filed and served by the party seeking costs;  and

   (d)the party seeking costs shall, within a further fourteen (14) days thereafter, file and serve any brief further written submissions, strictly in reply to the submissions served by the party from whom costs are sought,

   and any such application for costs shall thereafter be determined in Chambers.

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 Clayton & Bant 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).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 310 of 2013

Ms Clayton

Applicant

And

Mr Bant

Respondent

REASONS FOR JUDGMENT[1]

[1] I extend to the parties a sincere apology for the extensive delay in finalising this matter. I have revisited and reread my notes, the affidavit material, the exhibits, the expert reports prepared by persons with professional expertise for the Court’s assistance and the contents of the parties’ respective summaries of argument, however described. I have also had regard to the transcript of the proceedings.

1. The Respondent seeks that the proceeding commenced by the Applicant on 4 December 2014,[2] by which final orders are sought pursuant to s 79 of the Family Law Act 1975 (Cth) for property settlement[3] and for the payment of capitalised child maintenance and by which interim orders are sought for relief as particularised in paragraphs 5, 6 and 8 of that Initiating Application,[4] be permanently stayed on the basis that a Judgment delivered and order made in a Dubai Court in late February 2015 amounts to a bar to the same by virtue of the operation of res judicata/cause of action estoppel.

   [2] Which application was amended by the Second Amended Initiating Application filed 24 February 2015, by which specific orders in respect of an additional real property and also declarations that the Applicant is the sole legal and beneficial owner of certain particularised real property situated in Australia are sought.

   [3] Which included orders directing the Respondent to discharge the mortgage secured over particularised real property situated in Australia, for the transfer of particularised real property to the Applicant and for the payment of a monetary sum.

   [4] Such relief being sought in paragraphs 1, 2 and 4 of the interim orders sought in the Second Amended Initiating Application filed 24 February 2015.

Brief overview

1. The Respondent, who was born in 1973, is an Emerati citizen who lives predominantly in the United Arab Emirates. The Applicant, who was born in 1977, is an Australian citizen who now lives in Australia.

2. The parties commenced cohabitation in Dubai in mid-2006. They were married in 2007 by a Shari’a judge at the Shari’a Court in Dubai.  According to the translation provided by the Applicant, the marriage contract into which they entered that day provides that a dowry of 100,000 Dirhams be paid to the Applicant and that a deferred dowry of 100,000 Dirhams was to be paid to the nearest of the two fates (death or divorce).

3. There is a dispute between the parties about the extent of the Applicant’s knowledge of the contents of the marriage contract, but determination of this dispute is not possible in the context of the determination of the current applications, nor is it necessary for the resolution of the same.

4. The parties separated finally in Australia on 5 July 2013. They have one child, the child, born in 2009, whom currently lives with the Applicant in Australia pursuant to parenting orders previously made by the Court.

5. On the Applicant’s evidence, before she met the Respondent, she worked in various occupations – she had lived in the Middle East from 1999. She had actively invested in shares and property: for example, she had invested 1,010,000.00 Dirhams into a Bank of City XX UTS fund and leveraged her investment into the fund by borrowing the same amount from the bank.  She says that, when she and the Respondent met, she was working in the travel industry in the United Arab Emirates[5] and also worked as a sales representative.  

   [5] In which occupation she earned approximately AUD$120,000.00 per annum and in which she had worked from 2001 until 2006.

6. It is, I think, uncontroversial to state that, throughout their relationship, the parties lived between the United Arab Emirates and Australia and also travelled extensively to other countries. It is also uncontroversial to record that the Respondent has had, and continues to have, extensive property interests in the United Arab Emirates, Europe and Asia; that the Applicant and Respondent own real property in Australia;[6] that the Applicant owns real property in Australia[7] and that the Respondent owns real property in Australia.[8]

   [6] Namely D Street, B Town, New South Wales.

   [7] Namely: E Street, B Town, New South Wales; blocks of land in Northern Queensland and F Street, U Town, New South Wales.

   [8] Namely: a unit at the G Street, H Town, Queensland.

7. It is clear that the value of the property owned by the Respondent outside of Australia dwarfs the value of the property owned in Australia.

8. On the Applicant’s case, save for land in Northern Queensland, an apartment in Europe, land and apartment and land in the Middle East, property developments in North America, a beach home and villa in the United Arab Emirates, land in Africa, land on which a tower building to accommodate 2000 staff was constructed, real property at U Town (New South Wales), an apartment at H Town (Queensland) and real property at B Town (New South Wales), all other property owned by the Respondent was property owned by him at the commencement of their cohabitation. 

9. It is also uncontroversial to record that the Applicant ceased working prior to marriage. She advances that, during their cohabitation, she was responsible for the purchase of furniture for various real properties; designing, organising and supervising extensive renovations to certain properties; providing the vast majority of day-to-day care to the parties’ daughter; undertaking charity work on behalf of the Respondent; providing photographs used in advertising and promotional material for various projects as well as in the decoration of the same; planning meals and ordering food and otherwise overseeing the day-to-day operations of the parties’ household and organising the planting of an organic garden from which they could obtain produce.

10. The Applicant also advances that, during their cohabitation, the Respondent worked very long hours in overseeing the operation of his various business interests. He was the person who paid for the renovations to various properties and met the costs of the household expenses and the parties’ travel. He also paid the Applicant a monthly allowance, as he did to other close members of his family.  She says that she and the Respondent maintained separate bank accounts during their marriage.  On her case, the Respondent also gifted her a number of motor vehicles (currently located in the United Arab Emirates), to which she attributes a total value of approximately $895,000.00.

11. By Amended Initiating Application filed 29 July 2013, the Applicant had previously sought orders in relation to property settlement.  However, this aspect of the proceedings was not considered during the parenting trial which culminated in parenting orders being made on 19 November 2013.  Despite this, those orders also contained an order dismissing “all outstanding applications”. The Applicant’s subsequent application for an order pursuant to the slip rule (to correct what was obviously an oversight and/or error) was initially contested by the Respondent (on the asserted basis that the Applicant’s application for property settlement orders had been dismissed), although, eventually, orders were made by consent to rectify the situation.[9]

    [9] Order of 19 November 2013 (Amended 20 February 2015).

12. It is against this background, then, that I accept that, by correspondence dated 22 May 2014, the Respondent was informed of the Applicant’s intention to seek a property settlement.  I accept that such correspondence requested disclosure and that he respond in relation to his intention in respect of her foreshadowed application.  On the evidence before me, I accept that the Respondent did not respond to this correspondence. 

13. I also accept that, by correspondence dated 6 June 2014, the Applicant’s Australian solicitors renewed their request for disclosure and that, by correspondence dated 12 June 2014, they informed the Respondent’s Australian solicitors to the effect that, if the Respondent was not willing to negotiate a property settlement, then they were instructed to commence proceedings for final and interim property settlement orders.

14. I note that, on 16 June 2014, the Respondent caused caveats to be lodged over the title to real property situated at E Street, B Town and at U Town.  The Applicant is the legal owner of each of these properties. In support of those caveats, it was asserted that he had made direct and indirect contributions to the acquisition of those properties pursuant to an agreement between the parties.

15. It is uncontroversial that the Respondent commenced proceedings in the Dubai Court on 15 July 2014 (Personal Status Case No. …/2014). In the Dubai proceedings, the Respondent sought “divorce and waiver of all her matrimonial rights, as well as payment of the Court fees and advocacy charges”.

16. At the time he commenced the Dubai proceedings, there were no proceedings for a Divorce order under the Family Law Act 1975 (Cth) on foot in Australia; this was initially filed by the Applicant on 2 September 2014, and then refiled with ‘corrections’ on 18 September 2014. It is uncontroversial that at the time she filed the proceedings in Australia for divorce, the Applicant did not know that the Respondent had already filed proceedings in Dubai.

17. An understanding of the progress of the Dubai proceedings, the Applicant’s knowledge of the same and other ancillary relevant matters – including those about the progress of the Applicant’s Australian divorce application and the proceedings in the Supreme Court of New South Wales associated with the Respondent’s actions in lodging caveats over the title to two real properties situated in that State – can be gained from the chronology of events outlined below.

Chronology and consideration of relevant events

1. The first hearing date of the Dubai proceedings occurred on 18 September 2014. At this time, the Respondent’s Dubai lawyers submitted a certificate to the Court to establish that the Applicant was out of the country.  It is alleged that the Court determined that the Applicant should be notified of the proceedings by the placing of an advertisement in newspapers published in the Gulf – reference to the Court documents of the Dubai proceedings establishes that the Dubai Court decided “to serve process to the respondent [the Applicant in the current proceedings[10]] by means of publication in an English language foreign newspaper regarding the hearing scheduled for 14 October 2014”.

   [10] In an attempt to minimise the possibility for confusion, I will refer to Ms Clayton as “the Applicant” and Mr Bant as “the Respondent” throughout these reasons, noting of course that Mr Bant was the Applicant and Ms Clayton the Respondent in the Dubai proceedings.

2. On 19 September 2014, the Applicant’s Australian solicitors provided the Respondent’s Australian solicitors with a copy of the Application for Divorce Order, filed 18 September 2014, by email and asked whether they held instructions to accept service of the same on behalf of the Respondent.

3. On 21 September 2014, a “Service of process to a Respondent by publication in respect of Muslims Personal Status Case No. …/2014 was directed to the Applicant “of unknown address”:  it advised that, whereas [the Respondent] had instituted a case against her for divorce requesting the Court to order forfeiture of all of her matrimonial rights as well as pay his Court fees and advocacy charges and whereas the Court scheduled a hearing for 14 October 2014 at 8:30 am, she or her legal representative were ordered to appear and could submit any exhibits she had to the Court at least three days before the date of the hearing.

4. On 1 October 2014, an advertisement in English about the Dubai proceedings was placed in “J Paper” (a newspaper circulated in the United Arab Emirates). The advertisement contained the information that the claim against the Applicant was a claim for divorce and to drop all marital rights besides fees and expenses and attorney fees.  According to this advertisement, the Applicant’s residency address was “unknown”. The advertisement advised that the next Court hearing was at 8.30 am on Tuesday 14 October 2014.

5. It is alleged that, on 14 October 2014, the Dubai Court decided that the Applicant should again be notified by the placing of advertisements in a newspaper.

6. On 15 October 2014, the Applicant’s Australian solicitors wrote to the Respondent’s Australian solicitors to seek confirmation of receipt of the Australian Application for a Divorce Order.

7. The Australian Application for Divorce Order was first heard in Court on 17 October 2014.  As the Applicant’s Australian solicitors had been advised by the Respondent’s Australian solicitors that morning that they did not have instructions to accept service of the Application for Divorce order on behalf of the Respondent, the hearing was adjourned to 6 February 2015 to enable personal service of the application on the Respondent.

8. On 23 October 2014, a further notice was published in “J Paper” to notify the Applicant of the Dubai proceedings. According to this advertisement, the Applicant’s residency address was “unknown”.

9. On 28 October 2014, the Applicant was informed by the Respondent’s Dubai lawyers that, on 15 July 2014, they had registered a case against her for divorce at Dubai Court under No. …/2014 on behalf of the Respondent. She was told that the first hearing was on 18 September 2014; that they had submitted a certificate which showed she was out of the country – “therefore the Court decided to notify you by the newspaper”.  She was told that two announcements had been published on 1 October 2014 in the “J Paper”, in both Arabic and English. She was also told that, on 14 October 2014, the Court had decided to notify her again by newspaper. She was told that the next hearing would take place on 30 October 2014 at the Dubai Court and that “we will submit our final statement asking the Court to accept the divorce between you and our client”. The correspondence ended “kindly find herewith a copy of the related documents”. The documents provided to the Applicant refer to waiver[11] of all her “matrimonial rights”, together with an application that she pay the costs of the application.

   [11] Or extinguishment or forfeiture.

10. On 28 October 2014, the Applicant’s Australian solicitors sought an adjournment of the proceedings, a course in which the Respondent’s Dubai lawyers joined – the proceedings were adjourned to 20 November 2014.

11. The Applicant said that, when she was first notified about the Dubai proceedings, she was unsure about the course to take; she made initial inquiries about getting a lawyer in Dubai and learned that she was required to give such person a Power of Attorney; she said she did not know if engaging in the proceedings could assist her and was also told that it would be enormously expensive for her to engage lawyers to represent her.

12. On about 29 October 2014, the Applicant was told by her Australian solicitors that preliminary advice from a Mr IE (from whom she later obtained a report about the law in Dubai, although this was but not relied upon by her at the hearing other than in order to permit sense to be made of the contents of Exhibit 1 – the “Memorandum of Agreement/disagreement between Mr IE and Ms MB … July 2015”) was to the effect that the Dubai proceedings must have been supported by documents filed on behalf of the Respondent in the Dubai Court.

13. Consequently, the Applicant’s Australian solicitors wrote to the Respondent’s Dubai lawyers on 29 October 2014, asking that they be served with all documents filed in the Dubai proceedings. They also wrote that day to the Respondent’s Australian solicitors to note that, despite the ongoing involvement of both parties and firms in the Australian proceedings, the Respondent’s Australian solicitors had not advised them of the Dubai proceedings when they advised that they did not hold instructions to accept service of the Applicant’s Australian Divorce Application. The Applicant’s Australian solicitors also sought that the Respondent seek an adjournment of the Dubai proceedings for 28 days to enable the Applicant to obtain representation.  They advised that the Applicant would shortly file an application for property settlement in Australia and reserved her rights to argue that the appropriate forum for divorce was Australia.

1. On 30 October 2014, the Applicant received an email from a lawyer with whom she had made contact in Dubai.  That person told her not to worry if she was not at the hearing that day or did not have anyone to represent her; that if the Respondent served her with a summons with the wrong address or somehow kept her away from the case or the documents, the Judgment would issue and she could object and the High Court would consider the Judgment issued in her absence null and void: therefore she had time.

2. It appears that the Applicant then endeavoured to instruct her own legal representation in Dubai, via engaging solicitors based in Melbourne who had experience in the United Arab Emirates. It seems that, “in or about November 2014”, the Applicant’s Melbourne solicitors contacted an agent in Dubai to seek that such person act for the Applicant in the Dubai proceedings to obtain copies of the Court file and to seek an adjournment of the Dubai proceedings.

3. On 2 November 2014, the Respondent’s Dubai lawyers told the Applicant they had provided her with what had been filed in the Dubai proceedings and could not provide her with any further information. They also advised, in essence, that the Applicant would need to have her legal representatives in Dubai seek further information from the Court file and about the proceedings.

4. On 2 November 2014, the Respondent’s Dubai lawyers told the Applicant’s Australian solicitors that:

   a)the address and telephone number provided to the Dubai Court was given by the Respondent to the best of his knowledge – the telephone number provided to the Court was correctly recorded in Arabic but the translator of the document made an error in omitting a single digit and, therefore, the translation (which was only made for the purpose of notifying the Applicant after the publication of the notice in the newspaper) was incorrect; and

   b)in accordance with the law of the United Arab Emirates, it was within the Court’s discretion to use whatever means it saw fit to notify people about a case after it failed to reach the Applicant; and

   c)they had decided to notify the Applicant’s Australian solicitors as a courtesy and were not obliged to do so; and

   d)they had asked the Court to postpone the hearing so that the Applicant could seek local representation; and

   e)the Applicant’s local legal representative was responsible for requesting and receiving all necessary documents about the case and all related Court documents.

5. Correspondence that day or the next from the Respondent’s Dubai lawyer to the Applicant’s Australian solicitor also advised that, in the United Arab Emirates, divorce is separate from “custody”; that “settlements” will be managed by the Dubai Court because the marriage contract was made in the United Arab Emirates and covered settlement conditions in the case of divorce based on Shari’a principles and that private international law considers the Respondent’s origin laws in the case of conflict.  They advised that they agreed to ask for an adjournment and had done so; that the matter was adjourned to 20 November 2014 to assign arbitrators to reform relations between the parties, as the Applicant was willing to attend the hearing.  The Applicant’s Australian solicitors subsequently replied to correct the misunderstanding that the Applicant was willing to attend the hearing in Dubai.

6. On 3 November 2014, the Applicant’s Australian solicitors reiterated their request of the Respondent’s Dubai lawyers to be provided with all documents filed by the Respondent in the Dubai proceedings. They also asked that the Respondent’s Dubai lawyers confirm whether the Dubai proceedings concerned parenting or property settlement matters. They were advised the next day by the Respondent’s Dubai lawyers that the Dubai proceedings concerned only the “divorcement” and that they had sent the Applicant’s Australian solicitors all of the “related documents” and that the Applicant’s Dubai lawyers would have to be responsible for providing any further information.

7. On 11 November 2014, the Applicant’s Australian solicitors wrote to the Respondent’s Australian solicitors seeking production of all documents in the Respondent’s possession or control which had been filed in the Dubai proceedings and all documents, affidavits or supporting material filed by him in support of that application.

8. On 20 November 2014, the Dubai proceedings were again adjourned to 16 December 2014.

9. On 24 November 2014, the Respondent’s Dubai lawyers wrote to the Applicant directly to notify her that the only case in Dubai was “divorcement” and that all the related documents had been sent to her. She was also advised that the next hearing in the Dubai proceedings was scheduled for 16 “November” 2014.

10. In December 2014,[12] the Applicant sought to instruct a firm of lawyers in Dubai to act as her attorney pursuant to a Power of Attorney – however, as they required her to pay them approximately 50,000 Dirhams by way of retainer, she was hesitant to make such a financial contribution without first receiving advice about the likely consequences for her of the Dubai proceedings.

    [12] Whilst the Applicant’s affidavit asserts ‘2013’, this appears to be a typographical error given the context of the surrounding paragraphs.

11. On 3 December 2014, an affidavit by Mr K in which it was asserted that “The UAE proceedings [being] limited to Divorce and confirmation of the Marriage Contract only (the Marriage Contract includes a provision as to the financial entitlement of the Wife upon Divorce)” was filed in the Respondent’s appeal against the parenting orders. The affidavit also contained the evidence that no orders had been made in the Dubai proceedings, which were presently said to be adjourned to 16 December 2014.

12. The Respondent’s appeal against parenting orders was heard on 4 December 2014. The Applicant said that the issue of the late notice to her of the Dubai proceedings was raised on her behalf at that hearing. That day, her Australian solicitors served lapsing notices in relation to the caveats lodged on behalf of the Respondent over the property in Australia and the Application in respect of which the Respondent seeks the current relief was filed.

13. The Applicant also asserted that the Respondent was personally served with the Australian Application for Divorce Order on 4 December 2014, but he disputes that this occurred. The resolution of that dispute is unnecessary to the resolution of the current application for an order staying the proceedings.

14. On 10 December 2014, the Applicant’s Australian solicitors contacted the Applicant’s Melbourne solicitor to instruct her to seek an adjournment of the Dubai proceedings on the basis that the Applicant disputed that Dubai was the appropriate forum (it was said, because there is substantial property owned by the parties in Australia and the Dubai Court had no jurisdiction to make or enforce orders in relation to Australian property), that the Respondent had submitted to the Australian Court for the purpose of engaging in an argument as to forum and that the Applicant was unable to provide Dubai lawyers with the necessary Power of Attorney on short notice and would require at least four weeks to complete that process.

15. On 12 December 2014, the Respondent’s Australian solicitors sought and obtained urgent ex parte orders in the Supreme Court of New South Wales to extend the caveats previously lodged on behalf of the Respondent on the basis of an asserted equitable interest in those properties. The Summons on which they moved the Court was made was returnable on 17 December 2014.

16. On 16 December 2014, the Melbourne solicitor engaged by the Applicant to act on her behalf in the Dubai proceedings was told by the agents in Dubai (with whom contact had previously been made) that they required approximately $US10,000.00 to be deposited with them on account of fees and disbursements. The Dubai agents also advised that the Dubai proceedings had, that day, been next listed to 29 January 2015. The Applicant’s Melbourne solicitor told her of the adjourned date and she received a copy of an email to advise that the Dubai proceedings were next listed for 29 January 2015.  She said that she was under the impression that, until she received the material that had been filed in the Dubai proceedings, a continuation of the matter was not fair to her and denied her natural justice and, therefore, the Dubai Court would adjourn the proceedings.

17. On 17 December 2014, the issue relating to the caveats returned to the Supreme Court of New South Wales. Consent directions were made and the proceedings were adjourned to 12 March 2015.

18. On 25 December 2014, the Applicant was contacted by text by a person whom identified himself as “Mr N.” He asserted he was from the Dubai Court and said that he needed to discuss with her about her husband if she had time. She said that, as she was suspicious about the text message, she did not reply to it.

19. On 13 January 2015, Mr N called the Applicant but she missed his call. When she returned the call, a man identified himself as “Mr N”: the Applicant said he was hard to understand. She said  that he did not use the word ‘arbitrator’ in his discussion with her but did tell her that he wanted to hear her side of the story to tell the judge what decision to make; she said they spoke for about 15 minutes about her situation. I accept that Mr N was one of the arbitrators appointed by the Dubai Court.

20. The Applicant said that, when she asked Mr N for an email address, he provided her with a United Kingdom Yahoo account and told her that he did not have a Dubai Court email address. None of his emails were marked with any identification from the Dubai Court. The Applicant subsequently sent Mr N a text message, asking that he confirm the email address he had provided to her. She said she thought it strange that he asked her for the Respondent’s telephone number.

21. Despite her suspicions, the Applicant sent Mr N three emails on or about 13 January 2015. In these she explained the situation from her perspective, provided a copy of the Judgment delivered by  Kent J in the parenting proceedings and provided a copy of the material she had which had been filed by the Respondent in the Dubai proceedings. Mr N confirmed that he had received her emails. The Applicant then sent him a further text in which she said she believed the Respondent was then in London on the number she had provided; she also asked whether Mr N had had any luck finding the Respondent on the UAE number; he replied to tell her that he had tried to contact the Respondent but he did not answer; he also reassured her that he would “get to him”.

22. On 14 January 2015, the Applicant contacted Mr N again. In her text she thanked him for contacting her, said that she had been so worried and scared about the case in Dubai and did not know what the Respondent was planning to do there or what he could do. She said that, god willing, he could help her and the child get justice and have a life of peace. She thanked him for his efforts.

23. On 14 January 2015, Mr N sent the Applicant an email in which he told her (in reply to the email in which she had outlined her account of events) that he was going to report to the Court “what is the truth”. He also told her that he needed to sit with her because she needed to sign “on that investigate” to send it to the Court. It seems to me that this suggested the need for the Applicant to sign the documents she wanted provided to the Dubai Court.

24. On 20 January 2015, the Applicant filed an Application in a Case in the Australian proceedings by which she sought the making of an anti-suit injunction. She also sought the discontinuation of the proceedings related to the caveats in the Supreme Court or, alternatively, to restrain the same from continuing.

25. On 22 January 2015, Mr N sent the Applicant an email. In it he said that they needed to sit together to end the case. He said that he would be in the UK in the first week of February and that if she could travel there it would be better to sign on the investigation paper to convince the Court about the divorce.

26. On 26 January 2015, Mr N sent the Applicant a text at 7.44 am. In it he asked that she call him urgently.

27. The arbitrators met with the Respondent on 25 and 26 January 2015. The evidence before me includes a translation of their records of these interactions.

28. Doing the best that I can on the material before me, it seems that the Applicant replied to Mr N’s email of 22 January 2015 on 27 January 2015 (or, at least, sometime after it and before he emailed her again on 27 January 2015) to tell him that she had no evidence of who he was. She said that the situation seemed very strange and she had never heard of things being done in the manner he suggested.

29. By email sent at 5.34 pm on 27 January 2015, Mr N told the Applicant that he would tell the Court what she said and what she thought about him. He said that he had promised to “be with her” if she helped him, but it seemed that she did not want to solve “this issue.”

30. The arbitrators communicated with the Respondent again on 28 January 2015. The evidence before me includes a translation of their records of this interaction: included within the relevant notes is the assertion that the arbitrators stopped trying to communicate with the Applicant because “the answer is always apology and refusal”; the report also asserts that they had recontacted the Respondent after contact had been established “anew” with the Applicant and after he asked to meet with the Applicant or send her what was relevant and have the opportunity to respond to it (if a meeting did not occur) and that the Applicant refused contact and a meeting “for fear she may be hurt from what she does not know”.

31. On 27 January 2015, the Respondent’s Australian solicitors sought that the Applicant agree to adjourn the Australian proceedings for two months.

32. On 29 January 2015, the Respondent’s Dubai lawyers applied to the Dubai Court for an expedited hearing of the Dubai proceedings.  According to the translated documents, the request included the assertion that the Applicant had, on 16 January 2015, applied for a divorce in Australia to avoid a divorce under Islamic law for personal ambitions. The application for expedition sought that, as the Applicant had a Court hearing in Australia on 13 February 2015 - where it was said she sought a civil divorce in accordance with Australian law in an effort to plunder the Respondent’s properties there - the Dubai Court expedite the resolution hearing date to a date before 13 February 2015. Given that the Dubai Court gave its Judgment in late February 2015, the Respondent’s request for expedition was obviously unsuccessful.

33. It appears that the Dubai proceedings came before the Dubai Court for what was said to be an “Arbitrators’ hearing” on 29 January 2015.  Whilst the document identified by the heading “Reasoning and Offering Conciliation”[13] (which is included in the documents to which I am referring when I use the phrase ‘arbitrators’ report’) does not appear to be dated, I accept as more likely than not that this document was presented to the Dubai Court on 29 January 2015. It also appears that this appearance ended with the Court, in essence, reserving its decision.

    [13] Which is also contained within a longer document entitled “Decision of Arbitration and followed by a document entitled “Opinion of the Arbitrators” – all of which, together with notes of the sessions between the arbitrators and the Respondent appear to me to form the entirety of the ‘arbitrators’ report’.

34. The arbitrators’ report outlines that the Applicant confessed over the telephone that she ran away from the matrimonial home with the parties’ child; that she is fully determined not to return and wants a divorce “which is evidence from her filing an application in Australian courts” and that the Applicant did not present to them, through documents sent via email, what she alleges of discomfort and lack of harmony. The arbitrators also express their reasoning underpinning their conclusion that the Applicant is the party mostly responsible for the “abuse”.   Under the heading “the Decision”, they express their conclusion that the Respondent and Applicant should be divorced for a final divorce for a payment that the Applicant pays the Respondent (the sum being 100,000 Dirhams).

35. On 2 February 2015, the Applicant was served with the Respondent’s Response to the Australian Initiating Application.  She was also served with an affidavit by him, sworn that day, in which it was asserted that the hearing of the matter would be prejudiced as a consequence of the complexity of his financial position and that he needed more time to prepare and compile evidence in order to prepare his Financial Statement.  The Respondent said he would need eight weeks to do this, with the help of legal representatives and other professionals.

36. On 3 February 2015, the Respondent’s Australian solicitors e-filed a Response to the Applicant’s Application for a Divorce Order. This asserted that proceedings were on foot in the United Arab Emirates for divorce and property settlement.  Whilst the Applicant said that this was the first notice she received of the Respondent’s assertion that the Dubai proceedings concerned “property settlement”, this assertion seems to me to be at least somewhat contra-indicated by the contents of the 10 December 2014 correspondence referred to in paragraph 45 above.

37. The Applicant also said that, when the parties appeared before the Court on 3 February 2015, there was no suggestion by the Respondent’s Australian solicitors that there was an ongoing “property settlement” proceedings on foot in the Dubai Court. The parties in fact reached agreement (reflected in an order made by consent) that the Respondent would pay child maintenance and the matter was adjourned to 2 March 2015.

38. When the Applicant’s Australian Application for Divorce Order returned before Registrar Spink on 6 February 2015, the Respondent’s Australian solicitor advised that there was a dispute as to forum; the application was then adjourned to a Judge of the Federal Circuit Court, returnable on 17 February 2015.

39. The Applicant said that she was first provided with advice about the Dubai proceedings on 12 February 2015. As outlined earlier, she first learned of them on 28 October 2014.

40. On 13 February 2015, the Respondent filed a Response to Initiating Application. By it he sought that the Initiating Application filed 4 December 2014 be dismissed. He also sought, by way of interim order, that the Applicant’s application for litigation funding, spousal maintenance and orders to require him to be responsible for payments in respect of particular real properties be permanently stayed, or alternatively, dismissed and that the Applicant’s application for final property settlement be permanently stayed. He proposed certain interim orders relating to the payment by him of child maintenance.

41. On 17 February 2015, after the Court was advised that the Respondent contended that there was a forum argument on foot, the Applicant’s adjourned Application for a Divorce Order was transferred to this Court.

42. That day, the Applicant’s Australian solicitors wrote to the Respondent’s Australian solicitors to ask that the Respondent undertake to adjourn the hearing of the Dubai proceedings to allow time for the forum argument to be heard in Australia. It seems that the Applicant’s Australian solicitors also wrote to the Respondent’s Dubai Lawyers to ask that the Respondent undertake not to pursue any orders in the Dubai proceedings pending the determination of the forum dispute in Australia. No undertaking was provided.

43. On 19 February 2015, the Applicant’s Melbourne solicitors received an email from the Dubai agent again asking that funds be deposited. A follow up email on 24 February 2015 again asserted that the funds were yet to be received. The Melbourne solicitor contested the assertion that the required funds had not been provided and asserted that the relevant transfer documents established that they had in fact been deposited into the Dubai agent’s account.

1. When the matter came before this Court on 20 February 2015, the Applicant indicated that she had just been informed for the first time that the Dubai proceedings had in fact been finalised and that the hearing pending for late February 2015 was for the delivery of Judgment.

2. On 25 February 2015, the Respondent filed an affidavit in which he confirmed that the documents served on the Applicant under cover of email dated 28 October 2014 from his Dubai Lawyers were the only documents in answer to her request for disclosure.

3. On 25 February 2015, the Court ordered that the Respondent do all things necessary to request and prevent the Dubai Court from delivering any findings or Judgment in the Dubai proceedings.  The Applicant’s Melbourne solicitor sent a copy of the order to the Dubai agent.  The Applicant subsequently received an acknowledgment that the Dubai agent had received the order – she was advised that it would be under their consideration “ASAP”. The Applicant’s Melbourne solicitor received an email from the Dubai agent, in which they indicated that they could not act without receiving the original order.

4. On 25 February 2015, the Respondent forwarded a copy of the order made that day to his Dubai lawyers.  He sought advice about how to prevent the Dubai Court from delivering Judgment. He advised that he wanted to make sure he complied with the order so that he would not jeopardise his case in Australia. Whilst the Respondent’s Dubai lawyer was apparently in Court when the Respondent first contacted her, she said she would reply when she returned to her office. After following her up again later that day, the Respondent was told that the Dubai matter had been closed and that no further request could be made to the Court. His Dubai lawyer told him that they could make an application online, but such application would take two days to be considered by the judge. Whilst they said that, in their opinion it was “too late”, they also said they would do their best to reach the Court. 

5. It seems the Respondent’s Dubai lawyer attended at the Court building (at least) on the morning in late February, but was told that there was nothing that could be done to prevent the Court from delivering its Judgment.

6. Subsequent attempts by the Applicant’s Melbourne solicitor to obtain information from the Dubai agent about what – if anything – had been done following the provision of the Australian order made 25 February 2015 were unsuccessful.

7. In late February 2015, the Dubai Court “passed the following ruling.” It delivered reasons and then said that, for those reasons, it had ruled to execute the resolution of the two arbitrators to divorce the Applicant from the Respondent by one irrevocable fault-based divorce in consideration of a payable amount of 100,000 AED to be paid by the Applicant as of the date of execution of this divorce Judgment. The Dubai Court also ruled that the Applicant observe the waiting period (iddah) as of the date of execution of this divorce Judgment and shall be liable for payment of the fees and charges on top of 400 Dirhams in attorney fees. The Court also ruled that it would be made clear to the Respondent that he needed to notify the Applicant of the Judgment in accordance with the regulations.

8. Reference to the reasons or the ruling also reveals that the Dubai Court did not accede to the Respondent’s application to ‘drop off’ the Applicant’s deferred dowry (which I interpret as being his request for an order or ruling permitting him not to pay that amount to her, despite the payment of the same being a term of their marriage contract) and her alimony: the Dubai Court described this subject as “untimely” and noted that ‘the other party’ (which I take to be a reference to the Applicant) did not demand them and ‘hence’ there was no need to refer to them in ‘the text’ (which I interpret to mean the equivalent of the order made or ruling provided).

9. Reference to the document entitled “Dubai Courts Electronic Services Case Inquiries” reveals a further description of what is meant by the ruling that the Applicant observe the waiting period (iddah): it outlines that the Applicant “has to observe the canonical period during which she cannot remarry, starting from the date of executing this decision.”

10. On 27 February 2015, the Respondent’s Australian solicitors advised that the Dubai Court had handed down its Judgment in the Dubai proceedings.

11. On 2 March 2015, this Court ordered, amongst other things, that “within seven (7) days, the Respondent Husband provide to the Applicant Wife copies of all documents filed in UAE proceedings Case No. …/2014 Personal Status, Muslim, and No …/2014 Civil Status, Muslim together with a list or lists produced from the Dubai Court E-Services of all documents filed in those proceedings”.

12. The Respondent said that, on 3 March 2015, he telephoned his Dubai lawyers and requested that they submit all documents requested by the Australian Court to the Applicant’s solicitors.  He said he was told that they had already provided the same and his lawyer would check the file for any documents which may not have been provided and would provide the same in the event that any were discovered. 

13. On 11 March 2015, the Respondent’s Dubai lawyers wrote a summary of the Dubai proceedings to the Applicant’s Australian solicitors, in which they noted (amongst other things):

    a)the case was registered on 15 July 2014 under No. …/2014; and

    b)the case was just a divorcement according to signed marriage contract; and

    c)the first hearing was on 18 September 2014 – the delay being to announce to the Applicant the existence of the hearing; and

    d)the Respondent’s solicitors had attended the hearing and submitted an official immigration document to establish that the Applicant was out of the country; and

    e)the Court determined to “announce her” (that is, notify her of the proceedings) via an English newspaper and the hearing was postponed to 14 October 2014; and

    f)the date of the hearing was published in the O Paper; and

    g)the Respondent’s solicitors again attended at the Court for a hearing on 14 October 2014, but the Applicant again did not attend: the correspondence stated that “there was correspondence between our firm and [Ms Claytons’] lawyer in Australia who explained that she cannot attend this hearing since they don’t have enough time for that, therefore we asked for more time from the Judge because we believe that this is her right to attend the hearing” and that the Court postponed the hearing to 30 October 2014 to announce her again her by an English Newspaper; and

    h)the Applicant did not attend on 30 October 2014; and

    i)on 30 October 2014, the Court appointed two arbitrators to try and settle the conflict between the parties and postponed the hearing to 20 November 2014 such that the arbitrators could attend at the Court; and

    j)on 20 November 2014, the matter again returned before the Court and the Court postponed it to 16 December 2014 to “announce her” by an English newspaper; and

    k)on 29 January 2015, there was a hearing of the report by the arbitrators, who had contacted the Applicant on her mobile phone number in Australia to settle the conflict and discuss the case but she refused to settle, and the arbitrators issued their report in which they recommended the Court accept the divorce and that the wife [the Applicant] pay the husband [the Respondent] the amount of 100,000AED as compensation, as she was the defaulting party; and

    l)the Court postponed the hearing to late February 2015 for final Judgment; and

    m)the Respondent’s lawyers had tried to delay the case as much as possible to enable the Applicant to have the chance to attend or appoint a lawyer to attend on her behalf, but she failed to do so; and

    n)on 25 February 2015, the Respondent emailed them and asked that they not take any further action in the case, based on orders made in the Family Court in Australia; and

    o)they received a similar email from the Applicant; and

    p)according to Article 100 of the UAE Civil Procedure, they were unable to submit any request to the Court as the hearing had been closed on 29 January 2015; and

    q)they “nevertheless” did their “possible” to take any action which could prevent the making of orders in late February 2015; and

    r)final Judgment was issued in late February 2015, that the Applicant was the defaulting party, the Court therefore accepted the divorce and ordered that the Applicant should pay the Respondent 100,000AED as compensation.

14. On 12 March 2015, the Applicant’s Australian solicitors wrote to the Respondent’s Australian solicitors to contend that he had failed to comply with the 2 March 2015 order.  They also asked that he provide them with a copy of the arbitrators’ report (mentioned in the 11 March 2015 correspondence) and any and all other documents filed in those proceedings.

15. The Respondent said that, after he received this letter, he telephoned his Dubai lawyers to ask them to clarify whether the arbitrators’ report had been released and was available to be provided. He said he was told that the reference to the report in the 11 March 2015 correspondence was a typographical error, that the arbitrators’ report had not been released and that the error would be rectified.

16. On 12 March 2015, the Respondent’s Dubai lawyers wrote to the Applicant’s Australian solicitors to say that the arbitrators’ report was not available on the Court online service, and that any previous reference to it being available was a typographical error.

17. The Respondent said that, upon the correction of this error, he genuinely believed he had complied with his obligations under the 2 March 2015 order.

18. On 15 March 2015, the Applicant’s Melbourne solicitors emailed the Dubai agent to ask what had been filed by the Respondent in the Dubai proceedings; she noted she had received confirmation that the funds sent on behalf of the Applicant had been received by the agents. No response was received from the Dubai agents.

19. I accept that, as a result of the operation of Article 15 of Federal Law No. 28/2005[14], the appeal period referable to the order made on … February 2015 expired thirty days after the Respondent gave the Applicant notice of that decision: that is, thirty days after 27 February 2015. There is no evidence to suggest that the Applicant attempted to be heard on an appeal, whether based on a ground that she was not afforded the opportunity to appear at, or participate in, the proceedings, or any other ground.

    [14] Part of the law applied in Dubai.

20. On 7 April 2015, the Applicant’s Melbourne solicitors instructed a different firm of lawyers to act for the Applicant in Dubai; they were instructed to obtain the same documents as the previous Dubai agents had been instructed to obtain.

21. On 7 May 2015, the Applicant’s Australian solicitors again wrote to the Respondent’s Australian solicitors to contend again that he had not complied with the 2 March 2015 order. They advised that, whilst they had received documents from the Respondent’s Dubai lawyers, these did not include any affidavit material, any submissions, the arbitrators’ report, Reasons for Judgment, a transcript of the proceedings or any list of documents filed in the Dubai proceedings.

22. The Respondent said that, after he received this letter, he again clarified with his Dubai lawyers whether he had complied with the order and had provided all documents.  He said he was told that this was the case.

23. On 12 May 2015, the Applicant retained another firm of lawyers in Dubai to obtain copies of documents filed in the Dubai proceedings. After that firm received a properly executed Power of Attorney from the Applicant on 2 June 2015, they sought to obtain documents from the Dubai Court. Whilst they were able to obtain some documents which had been filed in the proceedings, others had been archived by the Court.

24. On 13 May 2015, the Applicant’s Melbourne solicitors were told that it was too late to take any step in the Dubai proceedings, because Judgment had been entered.

25. On 13 May 2015, the Respondent’s Australian solicitors verbally confirmed with the Applicant’s Australian solicitors that there were no additional documents from the Dubai proceedings.

26. On 18 May 2015, the Respondent’s Australian solicitors wrote to the Applicant’s Australian solicitors to advise that he had fully complied with his obligation pursuant to the 2 March 2015 order.  The correspondence also asserted that, on 11 March 2015, the Respondent’s Dubai lawyers had sent a summary of the proceedings to the Applicant’s Australian solicitors and had included copies of all of the documents and that neither the Respondent nor his Dubai lawyers had a copy of the Arbitrators’ report. The correspondence also reiterated that all related documents had been provided; it was asserted that the Respondent had complied with all of his obligations pursuant to the 2 March 2015 order.

27. On 4 June 2015, the Applicant’s Australian solicitors again wrote to the Respondent’s Australian solicitors to assert that, whilst the 2 March 2015 order required that the Respondent personally provide them with a list of all documents filed in the Dubai proceedings, no such list has been provided. That letter also advised that, late the previous day, they had received copies of documents filed in the Dubai proceedings which had not previously been produced by the Respondent.

28. On 9 June 2015, the Respondent gave a Power of Attorney to one of his employees to enable that person to inspect the Dubai Court file.  He said that after this was done, he learned that a copy of the arbitrators’ report was available and he then caused it, and an English translation of the same, to be provided to the Applicant’s Australian solicitors.

29. On 10 June 2015, the Applicant’s Australian solicitors again wrote to the Respondent’s Australian solicitors to request the provision of specific documents to which reference was made in the material received from the Dubai proceedings. This material included pleadings, a portfolio containing a notice of motions issued by the Family Guidance Committee, the arbitrators’ report, the certificate which related to the assertion that the Applicant was out of the country and the statement which asked the Dubai Court to accept the divorce.

Issues to be determined

1. Senior Counsel for the Applicant raised a preliminary issue: namely, whether the Respondent should be heard on his application for an order permanently staying the proceedings commenced by the Applicant.

Should the Court entertain the Respondent’s application for an order permanently staying the proceedings?[15]

[15] See: Fahmi and Fahmi (1995) FLC 92-637; Watson v Watson (2013) FLC 93-530.

1. Senior Counsel for the Applicant submitted that the Court would exercise the discretion not to hear the Respondent’s application because the Respondent was prima facie in contempt of the Court, consequent upon an asserted failure to comply with Clause 1 of the Order made on 2 March 2015.

2. The relevant part of the order made on 2 March 2015 is as follows:

   Within seven (7) days, the Respondent Husband provide to the Applicant Wife copies of all documents filed in UAE proceedings Case No. …/2014 Personal Status, Muslim, and No …/2014 Civil Status, Muslim together with a list or lists produced from the Dubai Court E-Services of all documents filed in those proceedings.

3. The Applicant said that the Respondent failed to comply with this requirement and, as at 10 July 2015,[16] had not provided her with copies of all documents in the proceedings in the Dubai Court.  It was submitted on her behalf that, despite correspondence, dated 18 May 2015, from the Respondent’s solicitor in which it was asserted on his behalf that he had fully complied with his obligations pursuant to Clause 1 of the March 2015 order, the Applicant later obtained documents from the Dubai Court in relation to the proceedings there which he had not provided to her. These documents were subsequently translated and provided to the Respondent.

   [16] The date upon which the ‘Executive Summary’ relied upon by the Applicant was filed.

4. Given this, it was submitted on behalf of the Applicant that the Respondent is prima facie in contempt of the March 2015 order as it is established that there were documents, within the ambit of Clause 1 of that order, which he failed to disclose or provide to her.

5. Senior Counsel for the Applicant submitted that the consequence for the Respondent of his failure to provide the Applicant with the documents she later obtained through her own efforts is that he ‘cannot be heard’ in relation to the relief he now seeks.

6. Senior Counsel for the Respondent submitted that the Court would not reach the conclusions sought by the Applicant. He submitted that, when regard is had to the evidence given by the Respondent about the issue of his asserted non-compliance with the March 2015 order, the Court would conclude that it was more of an imperfect attempt at compliance (“best efforts miscarrying”) than a knowing and intentional act of omission, as is needed to found a charge of contempt. He submitted that the Court would not be persuaded that the alleged contempt asserted itself impeded the course of justice because it does not touch upon the merits of the case, in that whatever documents said not to have been provided (and which have now in fact been obtained by the Applicant) are not material to the issues now before the Court.

7. Senior Counsel for the Applicant submitted that the Respondent’s response in this regard (that is, that the documents do not touch on the merits of the case or that his prima facie contempt or contravention of the order is not material) does not answer the allegation that he is prima facie in contempt of the Court; further, it was submitted that the Respondent himself did not advance a case that he was not in contravention of the order or otherwise not prima facie in contempt. I do not accept the tenor of the last submission because it seems to me that the Respondent’s evidence was directed toward providing an explanation for the failure to provide documents and to explain his efforts to comply with the order and to apologise for the non-compliance which occurred.

8. As noted, the Respondent, who was cross-examined by Senior Counsel for the Applicant, gave evidence about the failure to supply the Applicant with some of the documents on the Dubai Court file. He outlined his inquiries of his Dubai lawyers to ensure that he had complied with the relevant term of the 2 March 2015 order. His evidence is, in essence that when he asked those lawyers whether  all documents requested by the Australian Court had been submitted to the Applicant’s solicitors, he was informed that they had already provided the same and the lawyer would check the file for any documents which may not have been provided and would provide the same in the event. He made follow-up inquiries of his Dubai lawyers and, when the Applicant’s Australian solicitors continued to contend that he had not complied with the order, gave an employee a Power of Attorney and had that person inspect the Dubai Court file at which time additional documents were revealed, obtained, translated and provided to the Applicant. He said that when he was told by his Dubai lawyers that all documents had been provided to the Applicant’s Australian solicitors he honestly believed that he had complied with the order; when he later learned of the existence of other documents, he apologised for the failure to ensure the provision of the same to the Applicant.

9. Whilst aspects of the Respondent’s evidence during cross-examination were arguably evasive, I am not persuaded that I should not accept his explanation of events surrounding the issue of his compliance with the 2 March 2015 order.

10. I am not persuaded, in the exercise of my discretion, to refuse to hear the Respondent’s application for an order permanently staying the proceedings[17] because:

    a)as was clearly acknowledged by the Full Court in Watson[18], the requirement to afford parties with procedural justice “dictates” that the fact that a party has disobeyed an order of the Court is not, of itself, a bar to that party being heard on a subsequent application brought by that party; and

    b)whilst the ‘rule’ applies where the facts establish disobedience of an order – even if there has been no application or determination that a party is guilty of a contravention or contempt – the ‘strong thing’[19] of refusing to hear a party on an application brought by that party is, in my view, further magnified where, as here, that party seeks to raise a plea of res judicata/cause of action estoppel; and

    c)I am not persuaded on the evidence before me that the documents not provided by the Respondent but now, it seems, obtained by the Applicant, touch, or touch sufficiently, on the merits of a consideration of his application for an order permanently staying the property proceedings on the basis of the application of the principle of res judicata or cause of action estoppel: that is, I am not persuaded that any disobedience by the Respondent of the relevant order has impeded the course of justice by making it more difficult for the Court to ascertain the truth; and

    d)I consider it would be inconsistent to conclude that a contemnor should properly be heard in cases involving an appeal against an order where the appeal is based on an alleged lack of jurisdiction to make the order at all[20] and to conclude, in cases such as the present, that a party such as the Respondent should not be heard on an application by which he raises a jurisdictional issue in respect of the proceedings in which the order said to have been the subject of non-compliance has been made.

    [17] In the manner particularized in his application.

    [18] (2013) FLC 93-530.

    [19] Spoken of by Lord Denning in Hadkinson v Hadkinson [1952] 2 All ER 569, the discussion being referred to by the Full Court in Fahmi.

    [20] As I think the Full Court recognised in Fahmi.

1. Given this conclusion, I turn to consider the Respondent’s application that an order be made permanently staying the proceedings brought by the Applicant pursuant to s 79 of the Act on the basis that the order made by the Dubai Court in late February 2015 operates as a bar to the proceedings in this Court by virtue of the operation of the principles of res judicata/cause of action estoppel.

The Respondent’s Application for an order staying the Applicant’s proceedings

1. In opposing such an order, it was submitted on behalf of the Applicant that:

   a)the first step to determine in determining this application is whether the order made in Dubai will be recognised in Australia; and

   b)until the Respondent demonstrates that the Dubai divorce order should be recognised as valid in Australia pursuant to s 104(3) of the Act, such order has no juridical status for the purpose of Australian law; and

   c)the Dubai divorce order should not be recognised as valid in Australia because the Respondent cannot demonstrate, and expressly declined to demonstrate, that it was “effected in accordance with the law of Dubai”; and

   d)therefore, there can be no application of the principles of res judicata/cause of action estoppel; but

   e)even if the Dubai divorce order is recognised as valid in Australia, res judicata/cause of action estoppel cannot be raised because the Applicant’s causes of action under the Family Law Act1975 (Cth) (which are separate and distinct from any rights under Dubai law) could not and did not merge with the Dubai divorce order and, thus, an essential element of res judicata/cause of action estoppel in Australia is unsatisfied; and

   f)to the extent that the plea of res judicata/cause of action estoppel is raised in relation to the Applicant’s Application for a Divorce Order (initially filed 2 September 2014 but refiled with corrections on 17 September 2014), it would be ‘misplaced’ to characterise the Dubai divorce order as being ‘on the merits’, given its terms and that the relevant Dubai law makes it ‘plain’ that the Dubai Court did not consider the application on the merits but, in accordance with Article 121.2 of the Personal Status Law, rendered Judgment in accordance with the decision reached by the arbitrators; and

   g)to the extent that the  plea of res judicata/cause of action estoppel is raised in relation to the relief other than the Divorce order sought by the Applicant, as Dubai law has no provision for financial adjustment between parties to a marriage following their separation and divorce and it is agreed that the Dubai Court does not have jurisdiction over property situated outside the United Arab Emirates, such matters cannot have been determined by the Dubai divorce order made in late February 2015; and

   h)a “foreign divorce” does not preclude the bringing of proceedings for property settlement in Australia.

2. The Respondent contests the necessity to establish that the Dubai divorce order is valid pursuant to s 104(3) of the Family Law Act 1975 (Cth). It was also submitted that s 104(3) of the Act is only relevant where recognition of the Dubai divorce order (an overseas decree) is sought. The Respondent contends that, in determining his application, based on operation of the common law principles of res judicata or issue estoppel, it is unnecessary for this Court to determine whether the divorce granted by the Dubai Court in late February 2015 was granted in accordance with Dubai law. I do not accept these submissions in the context of the Respondent’s reliance on the Dubai order as providing the basis for the stay order sought.

3. The Respondent also submitted that this Court is not required or obliged to examine the procedural manner by which the Dubai divorce decision was reached but, rather, is entitled to accept the unchallenged record of the Judgment and order and take evidence about their legal consequence in Dubai. Given the terms of s 104(3), and the conclusion I have already expressed about its necessary application, I am not persuade that this is the case.

4. I also note that the Respondent contended that the Applicant’s submission in relation to the application of ss 104(4)(a) and/or (b) of the Act were secondary in the sense that, if the Court is persuaded that the Dubai divorce was validly granted in Dubai, the Applicant had also submitted that, by virtue of ss 104(4)(a) and (b), the Court should decline to recognise the same.

Did the Dubai divorce effect a divorce of the parties for the purpose of s 104(3) of the Act?

1. The Applicant submitted that the decision made by the Court in Dubai in late February 2015 did not effect a divorce of the parties for the purposes of s 104(3) of the Act because the word “divorce” used there is considered to mean ‘the termination of a previous marriage with the freedom to remarry’. It was submitted that, whilst the Dubai resolution may have terminated the previous marriage, it did not confer on the parties the freedom to remarry so as to constitute a “divorce” for the purpose of s 104(3) of the Act, capable of recognition as valid in Australia.

Specific findings about the applicable law in Dubai and application of the same

1. I accept that the Dubai Court had jurisdiction in the Dubai proceedings.[21] I accept that here, because the divorce was ruled by the Dubai Court, the waiting period (“idda”), being an obligatory waiting period during which the wife remains without marriage as a result of separation) started when the Dubai ruling became final.[22] I accept that the duration of the waiting period is prescribed by Article 139 PSL (which I find forms part of the law of Dubai) and depends upon which of the circumstances prescribed there is applicable in any given case. This is uncontroversial.

   [21] Articles 6, 8 of the Personal Status Law.

   [22] Article 137.4 PSL.

2. The Applicant submitted, though, that as there is no evidence before the Court to enable it to determine the meaning of the term “purity” referred to in that Article, the Court cannot properly apply Article 139 to the facts of this case and cannot conclude that the Dubai divorce provided the parties to it with the freedom to remarry such that the court would conclude that there is no “divorce” for the purpose of s 104(3) of the Family Law Act 1975 (Cth), capable of recognition as valid in Australia.

3. The delay in the finalisation of this application is such that it could not now sensibly be concluded – even in the absence of specific evidence about the duration of the waiting period in which a former wife cannot remarry after divorce or separation – that the prescribed period mandated by the terms of Article 139 PSL has not now long elapsed, such that the Dubai divorce is a ‘divorce’ for the purposes of s 104(3) of the Family Law Act 1975 (Cth).

4. Section 104(3) of the Act prescribes the circumstances which must be established in order that a divorce effected in accordance with the law of an overseas jurisdiction shall be recognised as valid in Australia. Whilst the Applicant contends that the Respondent has not established that the Dubai divorce was “effected in accordance with the law of Dubai”, she accepts (subject to the argument about the issue of “divorce” already the subject of consideration above) that, if this prerequisite is found by the Court to have been satisfied, then the requirements of s 104(3) are satisfied.

Was the Dubai divorce “effected in accordance with the law of Dubai”?

1. It is, of course, necessary to determine the law of Dubai in order to determine whether the Dubai divorce announced in late February 2015 was in fact “effected in accordance with the law of Dubai”.

Specific findings about the applicable law in Dubai and application of the same

1. I accept that the Federal Law No. 28/2005 on Personal Status (the PSL) is one of the applicable laws of Dubai and that it applies to citizens of the United Arab Emirates and, unless non-citizens ask that the law of their country/domicile apply, to non-citizens also.[23] I also accept that, in the absence of any specific provision in the PSL regulating the procedures of any matter, the provisions of Federal Law No. 11/1992: the Law on Civil Procedures shall apply. I also accept that Article 3 of Federal Law No (2) of 1987: the Civil Code provides that public order includes matters relating to personal status such as marriage in such a manner as not to conflict with the definitive provisions and fundamental of the Islamic Sharia’ah. I accept that, as a result of Article 29 of the Civil Code, ignorance of the law is no excuse and that Article 68 provides that no person may validly make a disposition over the property of another.

   [23] Article 1.2 PSL.

2. I accept that, in Dubai, family cases are “personal status” cases and are heard by the Shari’a Family Court of First Instance.  I also accept that the legal system in Dubai comprises this Court, an appellate Court and a further appellate Court (the Court of Cassation). 

3. I also accept that, within Dubai, marriage is a contract between the parties to it, that legitimates enjoyment between them[24]; here, the terms of the same included the dowry[25] the Respondent was required to pay to the Applicant, as well as a deferred dowry which he was required to pay to her on divorce or death.[26]  Whilst the Applicant asserted that the Respondent had not in fact paid her the dowry referred to in the marriage contract, the Respondent denied this was the case. If the dowry was not in fact paid by the Respondent, in the circumstances of this case, it is a debt owned by him[27] and there is nothing to suggest that non-payment rendered the marriage void, invalid or defective or the marriage contract void.[28]

   [24] Article 19 PSL.

   [25] Article 49 PSL.

   [26] See the Marriage Contract and Article 52.2 PSL.

   [27] Article 53.2 PSL.

   [28] See also Article 116.2 PSL.

4. I accept that, pursuant to Article 55 of the PSL, the Applicant had certain rights toward the Respondent following their marriage in Dubai in 2007. These relevantly included alimony[29] and the right of “non-interference” with her personal property.[30] I accept that, according to the law of Dubai, alimony is accorded a priority or privilege over all other debts[31] and that it is due to a wife by virtue of a valid marriage contract.[32]

   [29] Dealt with in more detail in Articles 63-73 PSL.

   [30] Articles 55.1 and 55.4 PSL.

   [31] Article 65 PSL.

   [32] Article 66 PSL.

5. 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.[33] 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.

   [33] Article 62.1 PSL.

6. I also accept that a wife’s rights to alimony are forfeited in the circumstances prescribed by Article 71 PSL. These include if a wife abandons the conjugal domicile without lawful excuse or if she refuses to travel with her husband without lawful excuse. On the uncontested evidence, either both or one of these arguably occurred, according to the law of Dubai, at the parties’ separation in July 2013 in Australia.

7. I accept that, by virtue of the law applicable in Dubai, ‘disunion’ between spouses occurs only by divorce, rescission or death. I accept that the law of Dubai requires that, before disunion is decided, the Court must try to cause a reconciliation of the spouses.[34] I consider that the appointment of the arbitrators, as specifically provided for by the relevant Article of the PSL, is a manifestation of this obligation.

   [34] Articles 98.2 and 98.3 PSL.

8. I accept that, in essence, as a consequence of Article 16.1 PSL, a lawsuit concerning personal matters shall not be commenced unless the same had previously been submitted to the Family Orientation Committee. I also accept that a number of matters are exempted from this requirement on the basis that they are matters that cannot be settled by conciliation. Whilst a matter involving “evidence of marriage or divorce” is included within this category,  I interpret this as a reference to matters in which there is a dispute about the existence or otherwise of a marriage or a divorce, rather than as a reference to proceedings for divorce per se.

9. I accept that, whilst the documents are not in evidence before me, the ruling announced by the Dubai Court in late February 2015 refers to the Respondent attaching to his pleadings “a portfolio containing a notice of motions issued by the Family Guidance Committee”. I also note that the document by which the Respondent appears to have commenced the Dubai proceedings specifically:

   a)outlines that he has the right to ask for fault-based divorce and discord based on Article 117.1 of the PSL ‘provided that the Family Guidance Committee attempts conciliation’ between the parties (in accordance with Article 117.2 of the PSL); and

   b)requests the court to:

   i)first ‘refer the merits as well as the parties to the Family Guidance Committee pursuant to Article 16 of the Personal Status law”; and

   ii)second, divorce him from the Applicant, 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 his other rights; and

   iii)third, to order that the Applicant be liable for payment of all fees, charges and attorney’s fees.

10. I accept that Article 14 of the PSL prescribes the manner by which a ‘defendant’ shall be notified about proceedings commenced in Dubai. I accept that, where service is to be effected on person abroad (such as the Applicant) who has a known domicile, residence or place of business, a copy of the notice to be given shall be delivered to the Deputy-Minister of Justice to be notified to the person through diplomatic channels or by registered mail with the requirement of acknowledgment of receipt.[35]

    [35] Article 14.6.

11. I accept that the Respondent knew the Applicant’s place of residence. His evidence was that he provided the Applicant’s address and telephone number to the Dubai Court such that it had her correct address and her telephone number and it knew where she lived and her address in Arabic. However, this evidence is hard to reconcile with the contents of the advertisements placed in the newspapers to notify the Applicant of the hearing of the Dubai proceedings, given that her residency address is there stated as ‘unknown.”

12. I accept that the law of Dubai is that, where the Dubai Court verifies that the person to be notified has no domicile, residence or place of business (that is, where their whereabouts or address was ‘unknown’), notification can occur through publication in two dailies issued in Dubai or abroad in Arabic or, here, English and the date of publication of the daily shall be considered as the date of notification.[36] I accept that it advertisements were in fact published (as detailed earlier).

    [36] Article 14.5.

13. Whilst there is no evidence to suggest that the Applicant was notified about the Dubai proceedings either by diplomatic channels or by registered mail or learned of them as a result of the advertisements published in the newspapers on more than one occasions, I consider that the clear intent of the requirements for notification and the means by which it is to occur is to ensure that that a defendant (here, the Applicant) is made aware of the existence of the proceedings so that such person can determine whether or not they will participate in the same. Here, I am persuaded that, whilst the Applicant was not notified by diplomatic channels or registered mail or by advertisement, she was notified of the Dubai proceedings on 28 October 2014, some three months before the final hearing on 29 January 2015 and some four months before Judgment was announced on in late February 2015.

14. I accept that, as provided for in Article 16 PSL, the Family Orientation Committee is to try to reconcile the parties and that, if this fails, the judge is to propose reconciliation to them (as I consider was done via the appointment of the arbitrators), but if this is not possible and the asserted prejudice is established, the judge shall order divorce.[37] In the present case, it is clear that reconciliation was not possible. Further, I consider that the contents of the documents sent by the Applicant to Mr N on 13 January 2015 quite capable of establishing prejudice in accordance with the law of Dubai.

    [37] Article 117.2 PSL.

15. I accept that the law of Dubai is such that, if the court concluded that the prejudice asserted is not established, but the discordance between the spouses is still occurring and there is no successful reconciliation of them by either the Family Orientation Committee or the judge, then the judge is required to issue a Judgment appointing two arbitrators. This is what occurred.

16. I also accept that the law of Dubai is that, if one spouse abstains from attending (which I interpret simply to mean as ‘does not attend’) the hearing for the appointment of the arbitrators, the Judgment appointing them is not subject to any appeal.[38]

    [38] Article 118.1 PSL.

17. I also accept that the Court is required to notify the parties of the Judgment appointing the arbitrators.[39] I consider that the Applicant was notified about the anticipated appointment of the arbitrators by the Respondent’s Dubai Lawyer on 2 November 2014.

    [39] Article 118.2 PSL.

18. I accept that the law of Dubai requires that the Judgment appointing the arbitrators specify a timeframe within which they are to complete their assignment and that this may not be longer than 90 days - although the timeframe is “extendable” by the Court.[40] I accept that the arbitrators’ assignment is to find out the reasons for the spousal discord and to try to reconcile the spouses.[41] I also accept that the failure of a spouse to attend on the arbitrators at an arbitration sittings is not to effect the progress of the arbitrators’ work.[42]

    [40] Article 118.2 PSL

    [41] Article 119 PSL.

    [42] Article 119 PSL.

19. In the present case, the Applicant’s own evidence establishes that she provided the arbitrators with information outlining events from her perspective and, in that way, participated at least to some degree in the overall process prescribed by Dubai law as forming part of the determination of an application for divorce pursuant to Dubai law.

20. It is clear that the arbitrators failed to reconcile the parties.

21. I accept that the law of Dubai is that, if the arbitrators fail to reconcile the spouses then:

    a)if the offence is entirely the husband’s and the wife (or both parties) claim separation: the arbitrators will decide a non-retractable divorce without prejudice to the rights of the wife resulting from marriage and divorce; or

    b)if the offence is entirely the wife’s: the arbitrators will decide a divorce for consideration deemed adequate by them and payable by the wife; or

    c)if the offence is attributable to both parties: the arbitrators will decide the separation without consideration, or for consideration which is proportionate to each party’s assessed share in the offence; or

    d)if the arbitrators cannot decide who is the offender and the husband is the claimant for divorce, the arbitrators shall recommend dismissal of his case but, if the wife or both of the spouses claims separation, then the arbitrators shall decide separation between the spouses without consideration.[43]

    [43] Article 120 PSL.

1. I accept that the arbitrators acted in accordance with the law of Dubai.

2. I also accept that the arbitrators are required to provide the judge with their ‘reasoned decision’ (a report) in which they include the extent to which each spouse offended against the other.[44] I accept that this is what they did in the present case.

   [44] Article 121.1 PSL.

3. I accept that, in the case of a divorce due to prejudice, the prejudice is to be established by legal means of proof and by the Court’s Judgment rendered against one of the spouses.[45] I also accept that the law of Dubai is that hearsay testimony is accepted if a witness’s statement explained that the prejudice was widespread in the spouses’ life environment. Given the contents of the arbitrators’ records of the Respondent’s complaints to them about the Applicant’s behaviours, his hearsay testimony was to be accepted.

   [45] Article 122 PSL.

4. I accept that the law of Dubai is that hearsay testimony to negate the prejudice asserted is not accepted.[46] That is, evidence in refutation of the assertions of prejudice must, it seems, be given directly by the Respondent to the application (here, the Applicant). No such evidence was given by the Applicant.

   [46] Article 122 PSL.

5. I accept that Article 121.2 relevantly provides that the judge shall render his Judgment in accordance with the decision reached by the arbitrators if they agree.[47] I accept that the Judgment of the Dubai Court is in accordance with the decision/recommendations made by the arbitrators, although it also includes an order for the payment by the Applicant of court’s costs and fees and an order for the payment by her of a specified sum in respect of the Respondent’s legal costs.

   [47] Article 121.2 PSL.

6. I accept that according to the law in Dubai, the Applicant and the Respondent were each entitled to ask for divorce due to prejudice that would make the continuity of friendly companionship between them impossible.[48]  Consequently, I accept that the Respondent was entitled to seek to divorce the Applicant in Dubai and to seek, as he did, “a fault based divorce according to Article 117 of the Personal Status Law”. I accept that he was required to prove “fault” to the court. 

   [48] Article 117.1 PSL.

7. I accept that, according to the reasons provided by the Dubai Court for the decision announced in late February 2015, in which is found the decision to adopt the arbitrators’ report, the “fault” found against the Applicant appears to be a wilful failure to abide by the mutual rights and obligations that spouses owe to each other pursuant to the law of Dubai: in particular, by Article 54 of the PSL, which prescribes such mutual rights and obligations to include good treatment, mutual respect and compassion and preservation of the family welfare and care of the children and their education, thus assuring that they are raised on a sound basis.

8. I consider that, in determining to accept the arbitrators’ report, the Dubai Court proceeded to assess this fault and to make a decision on the merits according to the law of Dubai.

9. For the reasons expressed, I am persuaded that the divorce announced by the Dubai Court in late February 2015 was “effected in accordance with the law of Dubai”.

10. The Applicant accepts that, as I have found (contrary to the submissions made on her behalf) the Dubai divorce is a divorce for the purpose of s 104(3) of the Family Law Act 1975 (Cth), and was effected in accordance with Dubai law, then the Respondent was a national of and ordinarily resident there at the relevant date.

11. However, the Applicant then submits that, by virtue of 104(4) of the Act, which relevantly provides that a divorce shall not be recognised as valid by virtue of subsection (3) where:

    a)under the common law rules of private international law, recognition of its validity would be refused on the ground that a party to the marriage had been denied natural justice; or

    b)recognition would manifestly be contrary to public policy,

    the Dubai divorce should not be recognised as valid.

Was the Applicant denied natural justice in respect of the Dubai proceedings?

1. The Applicant submitted that the Court would be persuaded that she was denied natural justice because she was not given an adequate, effective or competent opportunity to participate in the Dubai proceedings; it was submitted that, irrespective of whether she had a right to be heard and irrespective of whether she had the ability or facility to place herself in a position to put her views before the Court, to be afforded natural justice she needed more than a mere ability to take part in the formalities of the Dubai proceedings. It was submitted that what was required was an effective opportunity to participate in the same (a submission I accept) and that she did not have this.

2. The Applicant submits that she was not afforded natural justice because the Respondent, who knew of her address abroad at the time he commenced the Dubai proceedings, did not inform the Court of that, even though he did tell the Court she was not present in the United Arab Emirates. She alleges that it is apparent from the documentation filed on behalf of the Respondent to commence the Dubai proceedings that her address and telephone number were incorrectly stated. Further, the advertisements placed in the papers in the United Arab Emirates said that her address was “unknown” when it was in fact known by the Respondent.  She submits that, given that the Respondent caused caveats to be lodged over the title to the U Town and E Street properties, he was at all times aware of her address; further, they had lived in the U Town property for several months each year since its June 2007 purchase (save for occasion in 2010 when it was being refurbished) and the Respondent continued to maintain contact with her about their child and knew her address and telephone number and the contact details for her Australian solicitor, who had been on the record in proceedings in this jurisdiction since July 2013.

3. I accept that the Respondent knew of the Applicant’s contact details at all times. As remarked upon above, he said he gave these details to the Dubai Court although, as also remarked upon, the advertisements published in the papers asserted that her address was “unknown.

4. Despite my assessment of the Respondent as somewhat evasive during his cross-examination by Senior Counsel for the Applicant, the fact is that the Applicant was contacted by Mr N by text sent to her mobile number; this certainly suggests to me that, at some stage at least, it is likely the Dubai Court was made aware of that number as being a means by which she could be contacted. 

5. I accept that the Applicant did not learn of the Dubai proceedings until 28 October 2014.  I also accept her evidence to the effect that the Respondent did not mention the existence of such application to her prior to that date, even though he maintained regular (if not daily) contact with their child. I also accept that she first received any documents relating to those proceedings on that date. Had the proceedings in fact been concluded on 30 October 2014, there would be no doubt at all that the Applicant had been denied natural justice.

6. However, the proceedings did not in fact conclude on 30 October 2014 but were adjourned on a number of occasions to allow the Applicant to obtain legal representation in Dubai and/or the time to consider whether and how she wanted to participate in the same. On her own evidence, she sought to engage appropriate legal representation in Dubai almost immediately and was, therefore, made aware of the requirements to be met in order to have such representation. 

7. It is clear that the Applicant knew of the proceedings for about four months before the order was made by the Dubai Court in late February 2015.

8. Whilst it appears that the Applicant did not have the opportunity to participate in whatever processes are implemented by the Family Orientation Committee/ Family Guidance Committee, (whose purpose is to facilitate reconciliation of the spouses), the surrounding circumstances of the parties (including that they had earlier engaged in contested parenting proceedings which were then the subject of appeal) are not such to persuade that there was any possibility that participation in such a process may have resulted in their reconciliation.

9. In any event, I note that the law of Dubai requires that a judge attempt to reconcile the parties via the appointment of arbitrators if the Family Orientation Committee/ Family Guidance Committee is unsuccessful in its attempts at spousal reconciliation, and that, on her own evidence, the Applicant communicated with Mr N, who was one of the arbitrators appointed by the Dubai Court in accordance with the law of Dubai. I do not accept that the Applicant did not have an effective opportunity to participate in the arbitrator process implemented according to the law of Dubai. She was able to send information to the arbitrator with whom she communicated on a number of occasions.

10. The Applicant submitted the Respondent failed to inform her adequately of the progress of the Dubai proceeding or serve upon her all of the documents filed in the proceedings, so as to enable her properly to participate or have an opportunity to be heard in them. Given the correspondence from the Respondent’s Dubai lawyer referred to in the chronological recounting of events above, I consider that, after 28 October 2014, the Applicant was repeatedly told that it was her responsibility under Dubai law to ensure that a legal representative obtained documents from the Dubai Court file – as she was ultimately able to do not long before the Court hearing. I also consider that, following notice to her on 28 October 2014, the Applicant had the opportunity to obtain advice about the potential consequences to her of the relief sought by the Respondent in the Dubai proceedings. 

11. I also note that the Applicant’s own evidence is to the effect that she attempted to obtain legal advice or an opinion in relation to the nature of the Dubai proceedings; further, she received a recommendation to contact a lawyer based in Melbourne who was fluent in Arabic and who had previously operated a business in Dubai and she contacted that person. She received information that she was required to complete a Power of Attorney in order to instruct lawyers in Dubai as they required this to enable them to act on her behalf.  In December 2014, she provided lawyers based in Dubai with a Power of Attorney and attempted to instruct them to act on her behalf, but experienced communication problems with them. I also note that the Applicant said, (in her affidavit filed 18 February 2015) that she did not want to waste money on the Dubai proceedings until she knew the consequences for her of the same.

12. I am not persuaded, on the evidence before me, that the Applicant, who had lived in the Middle East from 1999, did not have an effective opportunity to be heard in the Dubai proceedings.  The fact that such opportunity could only be exercised with some difficulty and associated cost does not persuade me in the circumstances of this case that it was illusory. 

13. I am not persuaded, given the chronology of events as I have set out earlier in these Reasons, that the Applicant was denied an effective opportunity to participate or be heard, in the manner prescribed by the law of Dubai, in the Dubai proceedings. It follows that I am not persuaded that the Applicant was denied natural justice in respect of the Dubai proceedings.

Is recognition manifestly contrary to public policy?

1. The Applicant does not suggest that any divorce that results from the process commenced by the Respondent in Dubai is, of itself, contrary to public policy; rather, she submits that it is the circumstances of the present case – and, in particular, the Respondent’s own conduct – which render recognition of the Dubai divorce contrary to public policy.  The Applicant submitted that what is critical is to ascertain and consider the conduct of the party at whose request the divorce was obtained. 

2. The Applicant submitted that it would be contrary to public policy to recognise the Dubai divorce in the circumstances of this case because:

   a)the Respondent failed to give her notice of the Dubai proceeding to enable her to participate or have an opportunity to be heard in them; and

   b)the Respondent (either personally or by his lawyers) made false statements to the Dubai Court to the effect that her application in Australia was filed to try to avoid a divorce under Islamic law (given that she had no knowledge of his application at the time she filed the same); she had made groundless accusations against him, had prevented him from travelling and had opposed him instructing their child in Arabic and that she had mistreated their child and had accused him of physical abuse; and

   c)the Respondent is prima facie in contempt of this Court because of his failure to comply with the terms of the 2 March 2015 order; and

   d)recognition of the Dubai divorce may deny her a divorce and financial relief affected in accordance with the law of either Dubai or Australia and she may, therefore, suffer injustice or substantial hardship.

3. During his submissions, Senior Counsel for the Respondent emphasised that s 104 (4) (b) of the Act uses the expression “would manifestly be contrary to public policy”.  The term ‘manifestly’ is not defined in the Act. Its ordinary meaning is ‘in a way that is clear or obvious to the eye or mind’ or ‘obviously’.

4. In so far as the Applicant relied upon the existence of the mandatory waiting period imposed by the law of Dubai on the Applicant following the making or notification of the Dubai divorce, I am not persuaded that the imposition of any waiting period is, of itself, “manifestly contrary to public policy”; as the Respondent submitted, the Family Law Act1975 (Cth) provides that a divorce order made under it takes effect at the expiration of the later of a period of one month from the making of the order or from the making of an order under s 55A of the Act.[49]

   [49] Section 55(1) Family Law Act 1975 (Cth).

5. I am not persuaded that whether the Respondent failed to comply with an order for production of documents about the Dubai proceedings or was, as the Applicant submitted, “prima facie in contempt of the Court” by virtue of his actions (as already discussed) is a matter relevant to the determination of whether it is ‘manifestly contrary to public policy’ to recognise the Dubai divorce.

6. I am not persuaded that the circumstances established here are such that it is ‘obviously’ contrary to public policy to refuse to recognise the Dubai divorce granted to the parties in respect of their marriage, which was entered into between them in Dubai.

Conclusion about the issue of the recognition in Australia about the Dubai divorce

1. For the reasons outlined above, I am persuaded that the Dubai divorce in late February 2015 is a divorce; that it was effected in accordance with Dubai law and that it should be recognised as valid in Australia.

Consideration of the application of the principles of res judicata/cause of action estoppel

1. It is submitted on behalf of the Respondent that the order made in the Dubai Court in late February 2015 gives rise to a plea of res judicata/cause of action estoppel: that is, that the Judgment made by the Dubai Court that day is a bar to the proceedings commenced by the Applicant under the provisions of the Family Law Act 1975 (Cth).

2. It is uncontroversial that for the claim to be made out, the Court must be satisfied that the decision relied upon as the foundation for this claim (namely, the order made by the Dubai Court in the Dubai proceedings in late February 2015) was:

   a)judicial;

   b)pronounced;

   c)made by a tribunal which had jurisdiction over the parties and the subject matter;

   d)final and on the merits;

   e)determined a question raised in the current litigation or proceedings before this Court; and

   f)one in respect of which the parties were the same as those to the proceedings in this Court.

3. It is obvious that the parties to the Dubai proceeding are the same as the parties to the proceedings commenced by the Amended Initiating Application filed 4 December 2014.

4. Whilst the ruling adopted the recommendations made by the arbitrators, the court also determined to disallow other aspects of the claim brought by the Respondent (as noted  in paragraph 82 above); I consider that the ‘Judgment or orders’ delivered by the Dubai Court in late February 2015 were judicial.

5. I accept that the order and Judgment provided by the Dubai Court in late February 2015 was pronounced. I accept that it was made available via the Court’s electronic services and that a hard copy of the decision pronounced is made available to the parties to it a couple of weeks later.

6. I have already recorded my finding that the Dubai Court had jurisdiction over the parties and the subject matter considered in the Dubai proceedings.

7. I accept that the decision pronounced by the Dubai Court was final.  The existence of a right to appeal (which in any event ceased at the end of March 2015) does not mean that this is not the case. I am not persuaded that the Applicant’s failure to participate in the Dubai proceedings, other than via the provision of information to the arbitrator, has a consequence that the decision subsequently made should be regarded as not being on the merits.  It is clear, in my view, that the Dubai Court considered the application filed by the Respondent that was before it, had regard to the evidence placed before it, followed the process and procedure set down by the applicable Articles of the law of Dubai and made a ruling; consequently, I am persuaded that the decision arrived at can properly be regarded as having occurred on the merits according to the law of Dubai. I reiterate that the Respondent did not obtain all that he sought.

8. In order to determine whether the Dubai divorce determined a question raised in the current litigation, it is, obviously, necessary to pay careful attention to the relief sought by the Respondent in the Dubai proceedings so as to determine the subject matter of the same. It is also necessary to determine the applicable law of Dubai so as to understand the relief that is available to parties following their divorce in Dubai.

9. Reference to some of the documents relating to the Dubai proceeding establishes that the “case subject matter” of the same was “petition for divorce and waiver of all her matrimonial rights as well as payment of the Court fees and advocacy charges”.  Reference to other documents describes the “case subject matter” as “petition for divorce, forfeiture of all of the respondent’s [the Applicant’s] matrimonial rights and payment of Court fees and advocacy charges by her”.

What are the Applicant’s matrimonial rights in Dubai?

1. I accept that the law of Dubai is that a wife is entitled to alimony and that term is defined to include food, clothing, dwelling, medical care, servicing charges for the wife if she is doing her job in the family.  I also accept that, in assessing an amount of alimony, the husband’s circumstances, the wife’s circumstances and the economic situation are to be considered, provided that the amount is not less than required for sufficiency.  I accept that the circumstances in which the alimony to a wife is forfeited include if she does not travel with her husband, or if she abandons her home.

2. I accept that, according to Article 140 PSL, if a husband divorces a wife from a valid consummated marriage by his unilateral will without a request from her, she is entitled to compensation (other than the alimony paid during the waiting period) depending on the financial status of the husband and provided it does not exceed a one-year alimony payable to those in similar conditions. That is, it appears that, had the Respondent divorced the Applicant on a basis other than that advanced to the Dubai Court, the Applicant would have been entitled to compensation calculated in accordance with this aspect of Dubai law.

1. I also accept that, in such a circumstance, in assessing the amount of compensation payable, the prejudice sustained by the wife is to be taken into account.  That is, it seems clearly established that the amount of “compensation” is directly attributable to the assessed fault and does not have any connection to the property of the husband, other than by reference to the requirement to take his financial status into account in determining the amount.

2. I accept that the law of Dubai is that, in the case of a non-retractable divorce, only the costs of “sheltering” (which I interpret to mean accommodation) would be payable by the Respondent to the Applicant during the waiting period (“idda”) following the making of the divorce order.[50]

   [50] Article 69 PSL.

3. I accept that the law of Dubai provides that divorce is a dissolution of the marriage contract between the parties to it and that there are clearly defined parameters to the type of claim that may be made: these are alimony and maintenance for the support of children of the marriage.

4. 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.

5. 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.

6. 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.

7. 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.

8. I consider the positon different when regard is had to the issue of alimony – a concept similar to spousal maintenance under the Act. As already noted, the law of Dubai provides for the payment of alimony in certain prescribed circumstances and for certain prescribed periods of time; had the Dubai divorce and Judgment dealt with this issue then in my view, the Applicant’s right to seek the payment of spousal maintenance by the Respondent would have been barred.  However, I consider that the Dubai Divorce and Judgment did not in fact deal with that issue at all but, rather, described it as “untimely.”

9. For the reasons expressed above, I make orders in terms of those set out at the commencement of these Reasons.

I certify that the preceding one hundred and ninety-seven (197) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 18 September 2018.

Associate: 

Date:              18 September 2018.