Clayton v Bant [2020] HCA 44

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, GAGELER, GORDON AND EDELMAN JJ

CLAYTON APPELLANT

AND

BANT RESPONDENT

Clayton v Bant [2020] HCA 44 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.