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Case Note: Clayton & Bant [2020] HCA 44

In the recent decision of Clayton & Bant [2020] HCA 44, the High Court of Australia considered whether a decision made by a Dubai Court precluded a party from seeking orders in the Family Court of Australia.

Background

Ms Clayton and Mr Bant married in the United Arab Emirates (“the UAE”) and had one child together. Ms Clayton owned some personal property in the UAE and real property in Australia. Mr Bant owned considerable property throughout the world, including in the UAE, France, Jordan, Thailand and Australia.

They separated in 2013 and Ms Clayton moved to Australia with their child.

In 2013, Ms Clayton commenced proceedings in the Family Court of Australia for parenting orders. She later amended her application to seek property and spousal maintenance orders.

In 2014, Mr Bant commenced proceedings in the Personal Status Court of Dubai (“the Dubai Court”) seeking a divorce from Ms Clayton and the 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”.[1]

The Dubai Court granted Mr Bant an “irrevocable fault-based divorce”, with Ms Clayton to pay his costs of the proceedings and to repay an “advanced dowry” which he had paid to her on the formation of their marriage contract.[2]

The Issue

The issue was whether the decision made by the Dubai Court in divorce proceedings had the effect of precluding Ms Clayton from pursuing property settlement and spousal maintenance proceedings in the Family Court of Australia.

The Decision

It was held by the High Court of Australia that the ruling made by the Dubai Court did not preclude Ms Clayton from pursuing property settlement and spousal maintenance proceedings in the Family Court of Australia.

The ruling made by the Dubai Court could only preclude Ms Clayton from pursuing property settlement and spousal maintenance proceedings through the common law doctrine of estoppel.[3] Two forms of estoppel were applicable in this case:

  1. Cause of action estoppel. This precludes the assertion of a claim that has already been determined in previous proceedings.[4]
  2. Anshun estoppel. This precludes the assertion of a claim or an issue that was so connected to previous proceedings that it would have been unreasonable for the claim or issue not to have been raised in those proceedings.[5] 

Cause of Action Estoppel

The doctrine of cause of action estoppel requires that there be a “substantial correspondence” between the rights being asserted.[6]  

The majority of the High Court of Australia found that Mr Bant failed to establish a substantial correspondence between the rights determined by the Dubai Court and the rights asserted by Ms Clayton in the property settlement and spousal maintenance proceedings.[7]

The Personal Status Law in the UAE makes limited provision for the alteration of property interests of the parties to a marriage in the event of a breakdown of the marriage or divorce.[8] The provision is limited to allowing a husband or a wife to claim a share in real property which she or he has participated with the other in developing,[9] and it only encompasses real property situated with the UAE. In relation to alimony, the wife has an entitlement to be paid living expenses by her husband only until divorce.[10]

The High Court of Australia found that those rights were not equivalent to the right to seek the discretionary alteration of property interests under the Family Law Act 1975 (Cth), which encompasses all real and personal property of either or both parties to the marriage wherever located.[11]

As such, the rights determined by the Dubai Court could not preclude Ms Clayton from asserting a right to seek an order in the Family Court of Australia by reason of cause of action estoppel.[12]

Anshun Estoppel

For the same reasons, the High Court of Australia found that Anshun estoppel could not apply. It could not be unreasonable to have failed to have raised a claim in the Dubai Court that was not available to have been raised.

For More Information

If you would like to discuss your property settlement or spousal maintenance matter, please contact us on (07) 3252 0011 to book an appointment with one of our family lawyers.  


[1] Clayton & Bant [2020] HCA 44, [7].

[2] Clayton & Bant [2020] HCA 44, [8].

[3] Clayton & Bant [2020] HCA 44, [27].

[4] Tomlison v Ramsey Food Processing Pty Limited [2015] HCA 28, [22].

[5] Tomlison v Ramsey Food Processing Pty Limited [2015] HCA 28, [22].

[6] Clayton & Bant [2020] HCA 44, [34].

[7] Clayton & Bant [2020] HCA 44, [32].

[8] Clayton & Bant [2020] HCA 44, [10].

[9] Clayton & Bant [2020] HCA 44, [12].

[10] Clayton & Bant [2020] HCA 44, [14].

[11] Clayton & Bant [2020] HCA 44, [40].

[12] Clayton & Bant [2020] HCA 44, [42].

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