Date of Hearing: 9 September 2020 Date of Judgment: 2 December 2020
B21/2020
ORDER
1.Appeal allowed with costs.
2. Set aside orders 2, 3 and 4 of the orders made by the Full Court of the Family Court of Australia on 7 November 2019 as amended on 15 May 2020 and, in their place, order that the appeal to that Court be dismissed.
On appeal from the Family Court of Australia
Representation
D F Jackson QC with A-M McDiarmid and S F Gaussen for the appellant (instructed by Ferguson Legal Solicitors)
B W Walker SC with M W Todd for the respondent (instructed by Watts McCray Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Clayton v Bant
Family law – Foreign divorce – Property settlements – Spousal maintenance – Res judicata – Where appellant wife and respondent husband married in Dubai in 2007 and lived partly in Australia and partly in United Arab Emirates – Where wife and husband separated in 2013 with wife and child remaining in Australia – Where wife commenced proceedings in Family Court of Australia seeking parenting orders under Family Law Act 1975 (Cth) ("Act") – Where proceedings later amended to also seek orders for spousal maintenance and property settlement under ss 74 and 79 of Act – Where husband commenced divorce proceedings in Personal Status Court of Dubai ("Dubai Court") – Where ruling of Dubai Court granted husband "irrevocable fault-based divorce" and ordered wife to repay amount of advanced dowry and costs – Where husband sought permanent stay of property settlement and spousal maintenance proceedings on basis of res judicata, cause of action estoppel and/or principle in Henderson v Henderson (also known as "Anshun estoppel") – Where primary judge dismissed application for stay – Where Full Court of Family Court permanently stayed property settlement and spousal maintenance proceedings – Whether ruling of Dubai Court had effect of precluding wife from pursuing property settlement and spousal maintenance proceedings against husband in Family Court by reason of res judicata, cause of action estoppel and/or Anshun estoppel.
Words and phrases – "advanced dowry", "alimony", "Anshun estoppel", "cause of action", "cause of action estoppel", "claim", "claim estoppel", "divorce", "estoppel", "Henderson extension", "irrevocable fault-based divorce", "issue estoppel", "merger", "permanent stay", "Personal Status Court of Dubai", "Personal Status Law", "preclusion", "property settlement", "res judicata", "spousal maintenance".
KIEFEL CJ, BELL AND GAGELER JJ. The question in this appeal, from a judgment of the Full Court of the Family Court of Australia[1] on appeal from a judgment of a single judge of that Court[2], is whether a ruling made by the Personal Status Court of Dubai ("the Dubai Court") in divorce proceedings by the respondent husband against the appellant wife ("the Dubai…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Clayton v Bant [2020] HCA 44
Case
[2020] HCA 44
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal concerning the preclusive effect of a foreign divorce decree on Australian family law proceedings. The appellant wife and respondent husband married in Dubai and lived in both the UAE and Australia. Following their separation, the wife commenced proceedings in the Family Court of Australia seeking parenting orders, property settlement, and spousal maintenance. The husband subsequently initiated divorce proceedings in the Personal Status Court of Dubai, which granted him an "irrevocable fault-based divorce" and ordered the wife to repay an advanced dowry and costs. The husband then sought a permanent stay of the Australian property settlement and spousal maintenance proceedings, arguing that the Dubai ruling gave rise to *res judicata*, cause of action estoppel, or *Anshun* estoppel.
The central legal issue before the High Court was whether the ruling of the Dubai Court had the effect of precluding the wife from pursuing her claims for property settlement and spousal maintenance in the Family Court of Australia. This required the Court to determine the scope and effect of the Dubai Court's judgment in the context of Australian family law principles, particularly concerning the doctrines of estoppel.
The High Court reasoned that the Dubai Court's ruling, which dissolved the marriage and addressed the dowry and costs, did not encompass or determine the specific claims for property settlement and spousal maintenance that were being pursued under the *Family Law Act 1975* (Cth). The Court found that the issues litigated and determined in Dubai were distinct from those raised in the Australian proceedings. Specifically, the concept of "marital rights" addressed in the Dubai proceedings did not equate to the comprehensive property adjustment and maintenance provisions available under Australian law. Therefore, the principles of *res judicata* and estoppel did not apply to prevent the wife from pursuing her claims in the Family Court. The appeal was allowed, the Full Court's orders permanently staying the property settlement and spousal maintenance proceedings were set aside, and in their place, the appeal to the Full Court was dismissed.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside orders 2, 3 and 4 of the orders made by the Full Court of the Family Court of Australia on 7 November 2019 as amended on 15 May 2020 and, in their place, order that the appeal to that Court be dismissed.
Background
Background to the litigation
KIEFEL The question in this appeal, from a judgment of the Full Court of the Family Court of Australia[1] on appeal from a judgment of a single judge of that Court[2], is whether a ruling made by the Personal Status Court of Dubai ("the Dubai Court") in divorce proceedings by the respondent husband against the appellant wife ("the Dubai proceedings") has the effect of precluding the wife from pursuing property settlement proceedings and spousal maintenance proceedings against the husband under the Family Law Act 1975 (Cth) ("the Act"). Contrary to the view of the Full Court, the ruling does not have that preclusive effect.[1]Bant & Clayton[No 2] (2019) FLC ¶93-925.[2]Clayton & Bant [2018] FamCA 736.Background The wife is a citizen of Australia. The husband is a citizen of the United Arab Emirates ("UAE"). They met and commenced living together in 2006 in Dubai. There they married in 2007 in a Sharia court. Marriage under the Personal Status Law of the UAE is a formal contract in which provision can be made for a husband to pay dowry to a wife. The written contract of marriage between the husband and the wife here provided for the husband to pay "advanced" dowry of AED 100,000 on the formation of the contract and to pay "deferred" dowry of AED 100,000 in the event of death or divorce. Between 2007 and 2013, the husband and wife lived together partly in the UAE and partly in Australia. They travelled extensively. They had a child in 2009. The husband owns real and personal property in the UAE and in many other parts of the world. The wife owns personal property in Dubai. Both own real property in Australia. The husband and wife separated in 2013. Since separation, the wife and child have resided in Australia. In 2013, the wife instituted proceedings against the husband in the Family Court seeking parenting orders in respect of the child. The proceedings were amended to seek orders for property settlement and spousal maintenance. In 2014, the husband instituted the Dubai proceedings against the wife in the Dubai Court seeking divorce from the wife. He also sought in those proceedings the "dropping", in the sense of extinguishment, of "all her marital rights that are associated with that divorce in terms of all type[s] of alimony, deferred dowry and others as well as compensating him for all material and moral damage at the discretion of the court". The wife was notified of the Dubai proceedings but did not appear. In 2015, the Dubai Court made a ruling in the Dubai proceedings after receiving and adopting a report of two arbitrators. The report of the arbitrators appears to have been based on evidence presented by the husband combined with information voluntarily provided to the arbitrators by the wife outlining events from her perspective. The ruling granted the husband an "irrevocable fault-based divorce", the effect of which was to dissolve the marriage. The ruling went on to order the wife to pay AED 100,000 (corresponding to the amount of the advanced dowry) to the husband and to pay the husband's costs of the proceedings.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, BELL AND GAGELER JJ
GORDON J
EDELMAN J
An issue that has not been considered cannot be the subject of an issue estoppel, nor can it be the subject of an Anshun estoppel if it remains open to be determined at a future time. Conclusion The appeal should be allowed with costs. Orders 2, 3, and 4 of the Full Court of the Family Court should be set aside and in their place it should be ordered that the appeal be dismissed. The appellant did not seek to disturb either the order of the Full Court granting the respondent leave to appeal (order 1) or the costs orders made by the Full Court (orders 5, 6, and 7). Although this stay application has involved expert evidence and legal issues of some complexity, and although all courts have produced carefully reasoned judgments, it is unfortunate that there has been a delay of approximately five years between the hearing of the stay application by the primary judge and its final resolution in this Court. This remark is made to emphasise the need for expedition of this proceeding but not to cast any aspersion upon the thorough and thoughtful judgments, or the time taken to produce them, by all the Family Court judges involved in this proceeding. Although delay usually causes injustice, mere delay does not imply fault or blame on any court or decision maker. Reasons for delay, which were not the subject of question or comment during the hearing of this appeal, can be multifarious. They might include unavoidable personal issues confronted by the decision maker. They might include institutional reasons such as heavy case loads and backlogs. Or they might relate to the manner in which the parties have conducted the litigation in light of the usual processes of the court. Indeed, there was a very similar appellate delay between, on the one hand, the institution of the appeal in the Full Court of the Family Court and the delivery of reasons (during which period the Full Court of the Family Court also heard and resolved other disputes between the same parties) and, on the other hand, the application for special leave in this Court and the delivery of this Court's reasons.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, BELL AND GAGELER JJ,
GORDON J,
EDELMAN J