In Brief: In Clayton & Bant [2020] HCA 44 the High Court concluded that a ruling made in divorce proceedings in the United Arab Emirates, which did not deal with a full division of assets between the parties, did not preclude a wife from pursuing property settlement and spouse maintenance proceedings in Australia.
Decided early this month, the case of Clayton & Bant [2020] HCA 44 is a case about intersecting legal systems and whether looking at part of a separation is the same as looking at the whole. It is also, unfortunately, a case which follows the all-to-common trend of family law matters being afflicted by egregious delay.
Background
Ms Clayton, an Australian, and Mr Bant, a citizen of the UAE, met and started living together in 2006 in Dubai. They were married in a Sharia Court in 2007, had a child in 2009, and separated in 2013. Following separation, Ms Clayton and the child returned to Australia.
Marriage in the UAE is a formal contract under which a husband can pay their wife a dowry. Here, the contract between Mr Bant and Ms Clayton provided for Mr Bant to pay 100,000 AED (about $36,500 Australian) up front and another 100,000 AED in the event of death or divorce.
The parties were relatively wealthy, travelling extensively between Australian and the UAE. Mr Bant owned property in the UAE, France, Thailand and Jordon. Ms Clayton owned property in Dubai. Both owned property in Australia.
In 2013, Ms Clayton sought parenting, property and spousal maintenance Orders in Australia. Mr Bant responded by instituting divorce proceedings in Dubai which included seeking Ms Clayton’s rights to any alimony or dowry be “dropped”. Ms Clayton knew about the Dubai proceedings, but did not appear.
The Court in Dubai found for Mr Bant and granted him an “irrevocable fault-based divorce”; dissolving the marriage and ordering Ms Clayton to pay Mr Bant back the 100,000 AED dowry, as well as his legal costs.
Mr Bant applied to the Family Court in Australia for a permanent stay of proceedings, arguing that the Dubai judgment operated to bar them due to res judicata (the claim already having been decided).
Legal History
At first instance, Hogan J dismissed Mr Bant’s application. Her Honour found that the Dubai proceedings did not deal with Ms Clayton’s claim over Mr Bant’s property, as the law of the UAE does not allow this except in relation to joint property bought in the UAE. Neither, her Honour found, had the Dubai Court dealt with spousal maintenance.
This decision was overturned in the Full Court, and Mr Bant’s permanent stay granted. Justices Strickland, Ainslie-Wallace and Ryan unanimously found that because the proceedings in Dubai had determined the same “cause of action”, Ms Clayton was estopped from bringing a further claim. In relation to spousal maintenance, their Honours concluded that Ms Clayton could have bought a claim for alimony in the Dubai proceedings, but didn’t, and so was again estopped from doing so now.
High Court Decision
The High Court completely disagreed, unanimously overturning the Full Court’s decision. The Dubai Court’s decision, they found, had not dealt with the same things that Ms Clayton was now seeking to have decided in Australia. In a majority judgment, Kiefel CJ, Bell and Gageler JJ (with Justices Gordon and Edelman providing their own reasons, but essentially agreeing) stated that Mr Bant had failed to show a substantial correspondence between the rights determined in Dubai and the rights sought to be determined here. It was not enough to say that the Dubai Court had dealt with issues stemming from the separation, and to treat every issue around separation as having been dealt with in one big single transaction. On the contrary, the property rights the Dubai Court could have dealt with were very limited, restricted by UAE law to granting a divorce, Ms Clayton’s dowry entitlements and each parties’ share of any real property in Dubai. Neither party could have asked, or did ask, the Court in Dubai to alter the parties’ entire property interests.
This was only a fraction, the Court found, of the subject matter encompassed by the Family Law Act. What mattered was not necessarily the outcome – as different countries had different rules following the dissolution of a marriage – but that all the issues were or could have been dealt with. As the subject matter had not already been decided, Mr Bant’s application to block Ms Clayton from seeking an alteration of property interests in Australia was unsuccessful.
Likewise, the High Court found that Ms Clayton’s rights to claim spousal maintenance/alimony were so different in Australia and Dubai that it couldn’t be said that she was barred. The Court in Dubai had not made any decision about spousal maintenance, and their Honours found that just because Ms Clayton could have made a spousal maintenance claim there did not mean that it was unreasonable that she hadn’t.
As a final note, all five Justices remarked how regrettable it was that the proceedings had been pending for nearly eight years. There had been three and a half years’ delay between the filing of Mr Bant’s application and delivery of the first judgment, and a delay over a year in the Full Court. “The delays that have occurred,” the majority wrote, “…are unacceptable“, with Justice Gordon adding: “Justice delayed is justice denied; it is an injustice. Why and how these [proceedings] remained not finally determined for over seven years was not explored or explained.”
Only Justice Edelman was more forgiving, stating that his noting of the delay was “…not to cast any aspersion upon the thorough and thoughtful judgments, or the time taken to produce them, by all the Family Court judges.” Mere delay, remarked his Honour, does not imply fault or blame on any Court, and can be caused by many things, including personal issues of the decision maker, heavy caseloads, backlogs, or the manner in which the parties conduct litigation.
What can we learn?
- A decision made in another country does not automatically block a claim under Australian law. It is important to always closely examine what, exactly, the foreign Court decided, and what they were able to decide. A decision about one part of separation does not equal a decision about everything.
- A family law decision of a foreign court, where the legal system and principles are wildly different, might leave the door open for an Australian decision dealing with matters forgotten, overlooked, treated differently or ignored.
- The family law system is overcrowded, delayed and underfunded. The time between filing an application and getting a judgment is now measured in years, and it is vital to consider whether the outcome you sought is worth expending such a large amount of money, time and tears.
- On an educational note, Clayton & Bant is a good case for helping lawyers distinguish between the different types of estoppel:
- Action estoppel – where a claim has already been raised in previous proceedings;
- Issue estoppel – where an issue of fact or law has already been resolved in previous proceedings; and
- Anshun estoppel – named for Port of Melbourne Authority v Anshun Pty Ltd, or more recently Henderson v Henderson, where a claim or issue is so connected with the subject matter of previous proceedings that it is unreasonable not to have raised it then.
Article prepared by: Benjamin Keyworth – Associate, Sydney
