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Getting the right advice in relation to choice of jurisdiction for multi-jurisdictional family law disputes

Family Law: 03 December 2020

High Court decision in Clayton v Bant: Getting the right advice in relation to choice of jurisdiction for multi-jurisdictional family law disputes


The Wife is an Australian Citizen and the Husband is a Citizen of the UAE. The parties met and commenced cohabitation in Dubai (UAE) in 2006. They then married in 2007 in the UAE under Sharia Law. There was one child of the marriage, born in 2009. They separated in 2013, while living in Australia. Following their separation, the Wife and the child continued to reside in Australia. A year after separation, the Husband brought proceedings in Dubai. No proceedings were on foot at that time in Australia. The Wife was aware of the proceedings in the UAE and instructed lawyers to represent her in those proceedings, however, she did not personally participate / appear. The UAE Court made orders in terms of the Husband's application, the effect of which was to dissolve the marriage and terminate the Wife's rights to seek property orders. More specifically, the Wife was precluded from seeking payment of a deferred dowry which was payable upon divorce or death. The Wife did not appeal those orders.

Procedural History

The Family Court of Australia dismissed the Husband's application for a permanent stay of the Wife's application for property and spousal maintenance proceedings. The single-judge decision was appealed. The Full Court determined that the doctrine of res judicata estoppel applied. In other words, the Full Court was satisfied that "in prior proceedings, a court or tribunal of competent jurisdiction over the same subject matter and the same parties has by decree order or judgement finally and conclusively determined the same cause of action. The Full Court also said that just because the Wife would have broader rights (and probably do better under Australian Law) does not prevent a cause of action estoppel from arising. Further, the Full Court said that the Wife's failure to seek spousal maintenance in the UAE proceedings was also a bar to her now seeking to pursue those rights in the Family Court.

High Court Decision

The High Court overturned the Full Court's decision, concluding that it was wrong to preclude the Wife from asserting her rights under section 79 of the Family Law Act. The error lay in failing to look to the actual rights existence or non-existence of which were or might have been asserted in the Dubai proceedings and finally determined by the Dubai Court and then to look for correspondence between those rights and the statutory right asserted by the Wife in the property proceedings. The position here was assessed to be quite different. The property rights legally capable of being put in issue in the Dubai proceedings were limited to the entitlement of the Wife to obtain deferred dowry from the Husband and the entitlement of either of then to share in such real property in Dubai as she or he might have participated with the other in developing. Those rights were not in any degree equivalent in nature to the right to seek the discretionary alteration of property interests conferred by section 79(1) of the Act. And those rights were in any event capable of applying to only a fraction of the subject matter of the right conferred by section 79(1) which encompasses all real and personal property of either or both of the parties to the marriage, wherever located.

Key Points

This decision highlights the risks associated with failing to act quickly to obtain advice about jurisdiction and in failing to participate in overseas proceedings. Detailed consideration should be given to the most appropriate forum and proceedings issued without delay to secure that position. It will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties' controversy. The jurisdiction of the Family Court to hear and determine property proceedings is conferred by ss31(1)(a) and 39(5)(a) of the Act. The jurisdiction relates to "proceedings between the parties to a marriage with respect to the maintenance of one of the parties to the marriage" and with respect to "proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings ... arising out of the marital relationship". Proceedings of those descriptions can be instituted under the Act if either party to a marriage is an Australian citizen, is ordinarily resident in Australia or is present in Australia at the time of institution. It should be noted that, by force of s 31(2), the jurisdiction of the Family Court extends to persons and things outside Australia.

Our Experience

Jodylee Bartal, Principal Lawyer and Head of the Family Law Team at Aitken Partners, is an Accredited Family Law Specialist with 20 years' experience. Jodylee was named Layer of the Year by Best Lawyers for Family Law, Melbourne and has been recognised in Best Lawyers Global Edition 2020 and in Doyles' Guide. Jodylee has extensive experience in complex property / financial cases, including international property disputes.
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