Recent case overview: Bant & Clayton (No.2) [2019]

In this case, Mr. Bant (“husband”) and Ms Clayton (“wife”) were married in Dubai under Sharia Law and the couple lived in both Australia and Dubai. After separating, the husband eventually obtained a fault-based divorce from a Dubai court which had the effect of ending his wife’s rights to seek property orders under Dubai law. The wife then sought orders in Australia regarding property and spousal maintenance. In 2018, the Family Court dismissed the husband’s application for the final property settlement orders and spousal maintenance orders filed by the wife to permanently stay.


The husband sought leave to appeal. His arguments revolved around the res judicata doctrine, which would prevent the wife from litigating an issue that had already been determined or could have previously been litigated. The husband argued that previous court orders made in Dubai gave rise to res judicata estoppel and would consequently bar the wife from continuing proceedings in Australia. The Court considered whether Dubai proceedings determined same cause of action sought to be litigated in proceedings brought by wife in Family Court of Australia under the following grounds of appeal:

Ground 1:

The husband argued that the primary judge erred in concluding that the law of Dubai makes no provision for the redistribution of assets or property of the parties to the marriage contract consequent on the breakdown of the marriage or divorce. The court concluded this ground was successful because:

• The question to be determined was “whether the Dubai decree finally determined the same cause of action between the parties, that is, the financial consequences of the marital breakdown”.

• The court stated that the Dubai decree did determine the same cause of action.

• The court also stated the judge erred in her next conclusion that the Dubai decree didn’t determine the parties’ rights to seek property adjustment from the other.

Ground 2:

The husband also argued that the judge erred in concluding the question of alimony had not been determined by the Dubai Court, leaving this question open to be litigated in Australia. It was argued this was incorrect because she confused the cause of action with the outcome.

Previously, the judge concluded that the wife had rights to alimony in Dubai, but if the issue had been determined in Dubai proceedings, it would operate as a bar to her seeking spousal maintenance here in Australia. However, the judge found the issue hadn’t been decided in Dubai, therefore leaving it open to the wife to pursue alimony in Australia.

The court concluded this ground was also successful.


The court accepted that:

• The wife had rights to alimony in Dubai but didn’t seek to press for an order for her support (seen in Dubai proceedings). While the husband’s plaint was not accepted, the option was available to the wife, and therefore the issue was finally heard and determined in Dubai.

• Consequently, the wife could not bring a claim for spousal maintenance or property settlement in Australia under the “Henderson extension”, where the res judicata doctrine was extended to the circumstances where a party who might be expected to raise a claim in the proceedings did not (Henderson v Henderson (1843)).


• The appeal was allowed because both grounds of appeal had merit.

• Proposed for the husband’s application to be acceded and re-exercise the primary judge’s discretion.

• An order that the wife’s proceedings for adjustment of property and her applications for spouse maintenance be permanently stayed (halting further proceedings).


Family Law proceedings can always be pursued in Australia regardless of whether a couple married overseas or was solemnised under a different legal system (e.g. Sharia Law). It is generally known that a judgment from a court can be recognised in different countries, depending on the law and circumstances of the case. However, Bant & Clayton (No.2) has highlighted the notion that judgments from overseas courts can be applied to Australian family law proceedings. The case also emphasizes the need to obtain timely legal advice in international proceedings, as the outcome of overseas litigation can affect a person’s entitlement to pursue legal action in Australia.

It is important to note that it does not matter whether a favourable outcome was achieved in a Family Law matter in a different country. In cases involving the res judicata doctrine, the court will consider whether there was an available mechanism for a party to claim certain orders in the overseas jurisdiction, and whether the matter was finally heard and determined in the overseas jurisdiction.

With the increasing cultural diversity in Australia, it is important to remember that different cultural and religious principles can be recognised in the Australian court system. It is recommended that you speak with an experienced lawyer who can analyse and understand your marital circumstances and discuss your options.

If you have a family law matter, contact one of our experienced family law solicitors on (02) 9920 1787 to discuss how we may assist you to achieve a favourable outcome. Pannu Lawyers extensively practice in Family Law and regularly appear at Courts throughout New South Wales such as Federal Circuit Court Parramatta, Family Court of Australia Parramatta, Federal Circuit Court Sydney, and Family Court of Australia Sydney.

The above information is intended as general information and is not intended to be relied on as legal advice.

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