Property – Anshun estoppel applied to wife’s second application to set aside order under s79A

In Amery & Kedrina [2021] FamCAFC 79 (25 May 2021) the Full Court considered a wife’s appeal after her second application to set aside property orders had been permanently stayed.

The Full Court said (from [52]):

“ … [T]o preclude the wife from bringing her claim under s79A(1)(a) of the Act, it was necessary for his Honour to determine whether:

• the issue sought to be raised in the second proceedings was so relevant to the subject matter of the first proceedings that it was unreasonable for it not to have been raised in the first proceedings …

( … )

[70] … The question of whether two proceedings are ‘connected’ or ‘so relevant’ to one another, that it would be unreasonable not to have raised the point … in the first proceedings, is determined by having regard to the substantial equivalence of rights and subject matter of the actions, not the outcome achieved or the orders sought.…

( … )

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[72] Here, the wife’s rights arose from s79 and in the first and second proceedings she sought remedies pursuant to s79A which, were she successful, would permit only of variation or of setting aside the existing orders and, in their place, different orders pursuant to s79 would be made. Even though the first and second proceedings sought different outcomes … they both concerned her rights … under s79 … Thus in our view the ‘sources and incidents’ of the wife’s rights are found in s79. … [I]t was uncontroversial that at the time of instituting the first proceedings the wife was in possession of the information and documents critical to her decision to institute the second proceedings. Plainly enough, the asserted rights were of a substantially equivalent nature and covered substantially the same subject matter.

( … )

[88] … His Honour found that the proposed application, if allowed to continue, brought with it the prospect of contradictory judgments … and referred to the general acceptance that if a successive action would result in a judgment in conflict with the first, the successive action will be estopped … ”

The wife’s appeal was dismissed.

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are Accredited Specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).