Carpe Diem – the importance of timely advice in international family law matters

24 January 2020

The Full Court of the Family Court of Australia’s decision in Bant & Clayton1 reiterates the importance of seeking specialist family law advice in matters with international issues. The absence of taking that advice can lead to adverse consequences to parties by potentially (and often inadvertently) selecting a less favourable jurisdiction for their family law matter.

The facts in Bant

The case of Bant involved a relationship and subsequent marriage between an Australian wife and the husband whom was a UAE national. The parties were married in Dubai and had one child together.

Following separation, the wife relocated to Australia with the parties’ child. The husband consented to that relocation and, in Australia, the wife and the child lived in a property owned by the husband.

The husband applied for, and was granted, a divorce order in Dubai following the wife and their child’s relocation. The wife did not apply for a division or assets or maintenance under Dubai law (or Australian law) prior to that divorce order being made, which she was entitled to do.

The proceeding in Bant

As a consequence of the divorce order, the wife was unable to apply for a division or assets or maintenance under Dubai law. The wife therefore applied for a division of assets and maintenance in the Family Court of Australia claiming, among other things, that those issues had not been resolved.

The husband opposed the wife’s Australian application for a division of assets and maintenance. He sought that her Australian court application be stayed permanently.

The basis of the husband’s claim for a stay arose as a consequence of a legal principle, res judicata estoppel. In short, the estoppel prohibits a party from seeking court orders arising from the same subject matter of which another court has already made a final judgment. The principle can, however, also be extend to circumstances where a party could have raised a claim in an earlier proceeding, but did not do so.

The crux of the husband’s case was that the wife was seeking a division of assets and maintenance arising from the same marriage that was the subject of the Dubai divorce proceeding. He argued that the wife could have sought a division of assets or maintenance in Dubai and failed to do so.

The husband’s application for a stay of the wife’s Australian court application was rejected at first instance. The husband sought to appeal that decision.

The appeal in Bant

Noting the above, the Full Court of the Family Court of Australia was tasked to determine whether the wife’s cause of action (for a division of assets and maintenance) was sufficiently similar to the subject matter of the Dubai divorce proceeding. Should the wife be estopped from prosecuting her Australian court application?

The Full Court determined that Dubai law provided (and provides) for, among other things, a division of assets albeit not in a form identical to Australia. As such, the relief sought by the wife in Australia was available under Dubai law and the Dubai proceeding finally determined the underlying cause of action between the parties. The wife’s failure to seek a division of assets and maintenance in Dubai satisfied the legal principles of res judicata estoppel, such that the wife was estopped from seeking such relief in Australia.

The Full Court therefore acceded to the husband’s appeal and ordered a permanent stay of the wife’s Australian court application.

What does Bant highlight?

The decision in Bant highlights the importance of taking specialist family law advice in matters involving multiple countries. It identifies that a failure to take such advice, could result in the loss of significant legal rights or remedies.

It is therefore extremely important that parties take specialist family law advice before taking legal steps (where possible) in circumstances where their relationship exists (or existed) in multiple countries.

1 [2019] FamCAFC 200.

Ask us how we can help

Receive our latest news, insights and events
Barry Nilsson acknowledges the traditional owners of the land on which we conduct our business, and pays respect to their Elders past, present and emerging.
Liability limited by a scheme approved under Professional Standards Legislation