HIGH COURT JUDGMENTS Dr Michelle Sharpe Castan Chambers, Melbourne
Res Judicata Foreign divorce In Clayton v Bant [2020] HCA 44 (2 December 2020) the High Court was asked to determine whether Ms Clayton’s proceedings in the Family Court of Australia (Family Court) were precluded by a ruling made by the Personal Status Court of Dubai (Dubai Court) in divorce proceedings brought by Mr Bant. Ms Clayton and Mr Bant (not their real names) were married for about five years and had a child. Ms Clayton is an Australian citizen and Mr Bant is a citizen of the United Arab Emirates (UAE). They were married in a Sharia court. Marriage under Personal Status Law of the UAE is a formal contract in which provision can be made for a husband to pay dowry to a wife. The written contract 52 | BRIEF APRIL 2021
here provided for Mr Bant to pay Ms Clayton an “advanced” dowry of AED 100,000 and a “deferred” dowry of the same amount in the event of death or divorce. Mr Bant owns real and personal property in the UAE and many other parts of the world. Ms Clayton owns personal property in UAE. Both own real property in Australia. Ms Clayton left Mr Bant and returned to live in Australia with their child. When Ms Clayton commenced proceedings in the Family Court seeking parenting and, later, orders for property settlement pursuant to ss74 and 79 of the Family Law Act 1975 (Cth) (Family Law Act), Mr Bant commenced proceedings in the Dubai Court seeking a divorce. Mr Bant also sought orders for the extinguishment of all of Ms Clayton’s marital rights associated with the divorce in terms of alimony and the deferred dowry. Ms Clayton was notified of the
Dubai proceedings but did not appear. The Dubai Court made a ruling in which Mr Bant was granted an “irrevocable fault-based divorce” dissolving the marriage (Dubai Ruling). The Dubai Ruling went on to order Ms Clayton to refund the advanced dowry and pay Mr Bant’s legal costs. In respect of the alimony and deferred dowry, the Dubai Court considered that “this subject is untimely”. Mr Bant subsequently sought a permanent stay of the Family Court proceedings. At first instance, Mr Bant’s application was dismissed. Mr Bant successfully appealed that decision and the Full Court ordered a permanent stay. Ms Clayton then appealed and the High Court unanimously overturned the Full Court’s decision. Keifel CJ and Bell and Gageler JJ gave reasons for their decision in a joint judgment. Gordon and Edelman JJ each delivered separate judgments.
