The Heavy Costs of Waiting in Family Law 

In all family law matters, it is important to provide your lawyer with the full story. Complete and detailed information is need by your lawyer to ensure that full and correct advice can be provided. The costs of not doing so are explored in this article. 

In Amery & Kedrina [2021] FamCAFC 79, the Full Court (Ainslie-Wallace, Ryan & Tree JJ) considered a wife’s appeal after her second application to set aside property orders had been permanently stayed. The second application was permanently stayed ‘by reason of the application of the Anshun principal.’

The Anshun principle, or “Anshun estoppel”, operates to prevent a party from making claims that should have been made in earlier proceedings. The test for the Anshun principle is one of reasonableness. That is, a party cannot raise a claim or issue in subsequent proceedings if that claim or issue is so connected with the subject matter of the first proceeding that it is unreasonable for them not to have raised it in the first proceedings (Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28, at [22]).

This case highlights the importance of assessing, at an early stage, whether there are any other potential claims a litigant may wish to pursue. If such claims are not pursued at the appropriate time, the litigant may lose the right to pursue them altogether. 

Initially, property orders were made in 2005 by consent providing that the wife receive $31.24 million plus 45 per cent of shares held by a family trust and the husband $38.18 million plus the balance of the family trust. 

The wife later asserted that the husband had not transferred certain shares to her in a timely way which had resulted in the husband receiving dividends and distributions relevant to those shares which she otherwise would have received.

In 2017 the wife applied to the Court pursuant to s 79A(1)(c) to recover the outstanding dividends and distributions, which was resolved via consent orders providing that the husband to pay the wife the sum of $455,151.

In 2018 the wife applied to the Court again, seeking that the orders be aside pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth). The Court permanently stayed the application ‘by reason of the application of the Anshun principle’.

At [70], the Full Court said ‘[t]he assessment of the connection between the two matters rests on the second matter being ‘so relevant to the subject matter of the first action that it would have been unreasonable’ not to have relied on it in the first action.    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 now sought to be agitated 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. …’

Further, at [72] the Full Court went on to hold ‘[h]ere, the wife’s rights arose from s 79 and in the first and second proceedings she sought remedies pursuant to s 79A which, were she successful, would permit only of variation or of setting aside the existing orders and, in their place, different orders pursuant to s 79 would be made.  Even though the first and second proceedings sought different outcomes in relation to the existing orders, they both concerned her rights to a property settlement under s 79 of the Act. Thus in our view the ‘sources and incidents’ of the wife’s rights are found in s 79. … [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.’

Again, this case highlights the importance for litigants of effectively planning their case. In the event that a litigant does not wish to pursue a claim in the early stages of a matter, it is worth considering that they may not be able to pursue that claim at all. 

If you find yourself in difficulties with separation at the present time and require legal advice, contact our Family Law team today. 

DISCLAIMER: The information contained in this article is general and is not intended to be advice on any matter. It is for information only and is not legal advice. In the event of a legal problem, you should seek legal advice.

Recent Post

Dear Friends,

We are a COVID19 conscious workplace. We encourage clients to wear masks and sanitise before a conference

Yours Sincerely,

The Team,
O’Brien Connors & Kennett Solicitors