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Key decisions

  • Clayton v Bant [2020] HCA 44
  • Paradin [2020] FamCAFC 245
  • Lambard & Lambard and Ors (No. 2) [2020] FamCA 858
  • Russo and Russo & Ors [2020] FCWA 182


High Court sets aside stay order – Full Court misapplied res judicata and Anshun estoppel 

In Clayton v Bant [2020] HCA 44 (2 December 2020) the High Court (Keifel CJ, Bell, Gageler, Gordon & Edelman JJ) allowed with costs an appeal where the Full Court had permanently stayed a wife’s application for property and spousal maintenance as she had failed to contest divorce proceedings in Dubai.

A citizen of the United Arab Emirates, the husband issued divorce proceedings in Dubai in 2014. The wife did not appear, such that a Dubai court granted the husband an ‘irrevocable fault based divorce’ (at [8]) and ordered the wife to repay an amount of an advanced dowry and costs. 

The husband then sought a permanent stay of the wife’s property and spousal maintenance proceedings in the Family Court of Australia, arguing res judicata. Although unsuccessful at first instance, the Full Court stayed the proceedings, finding that the Dubai proceedings had determined the same cause of action and the wife’s failure to pursue her claim in Dubai meant she was estopped from pursing a spousal maintenance claim in the Family Court.

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