This case was an appeal from the Full Court of the Family Court of Australia to the High Court of Australia on the question of whether divorce proceedings in the United Arab Emirates precluded proceedings in the Family Court of Australia. The High Court overturned the Full Court’s decision, thereby allowing property proceedings in Australia.


The wife is an Australian Citizen and the Husband is a citizen of the United Arab Emirates. The parties married and had one child in Dubai, however, issues arose when the wife and the child relocated to Australia following their separation.  The husband instituted divorce proceedings in Dubai which provided division of assets and resulted in significant financial loss for the wife.

The Appeal in Full Court of the Family Court of Australia

The Full Court determined that Dubai Law provided sufficient division of assets although not identical to what Australian Courts would provide.  Full Court accordingly held that the Dubai Proceedings could in fact, give rise to res judicata estoppel. Put simply, the concept of res judicata estoppel provides that a party cannot relitigate the same matter. In this case, the Full Court held that because the parties had obtained a property settlement through the courts of the United Arab Emirates, the wife could not relitigate the matter in Australia.

Further, the Full Court held that the wife was precluded from seeking spouse maintenance in Australia. While the Emirati court did not deal with spouse maintenance, the Full Court found that this was a matter that the wife had the opportunity to litigate in the Emirati proceedings but opted not to. The Full Court held that she was therefore unable to now raise these issues in further proceedings. This principle is referred to as the principle in Henderson and/or Anshun estoppel.

High Court of Australia Decision

The Wife appealed the decision of the Full Court to the High Court and was successful. The High Court held that the proceedings in the United Arab Emirates could not prevent the application of the Family Law Act as the rights under Emirati law and the Australian Family Law Act did not provide equivalent rights. Indeed, the High Court held that:

The rights created by ss 79(1) and 74(1) cannot “merge” in any judicial orders other than final orders of a court having jurisdiction under the [Family Law] Act to make orders under those sections.

This was in relation to the strictest sense of res judicata estoppel. The High Court further held in relation to common law estoppel that it was necessary to look to the actual rights that the Emirati law provides and to rights provided under the Family Law Act. The High Court found that the Full Court had failed to do this and instead found that the Emirati court had determined the financial consequences of the breakdown to the matrimonial relationship without delving into the granular analysis of the respective rights of parties under both laws.

This is an important case where parties may have had proceedings in other countries. A careful examination of the rights provided in other countries will be required in order to determine whether a party’s rights under the Family Law Act remain or have been extinguished by proceedings in other countries.