Family law: December 2015

Property – No error in treatment of wife’s redundancy entitlement as an initial contribution

In Hearne [2015] FamCAFC 178 (16 September 2015) the Full Court (Strickland, Ryan & Austin JJ) dismissed the husband’s appeal in which he argued that Judge Harman at first instance mischaracterised the wife’s redundancy entitlement as an initial contribution where she had no right to the redundancy when the relationship began. Strickland J (with whom Ryan J agreed) said (at [97]):

‘There is no doubt that when a trial judge comes to identify the property of the parties, accumulated service cannot be treated as an item of property, but, that is not what the trial judge is doing here. He is assessing the initial contributions of the parties which can comprise items of property such as real estate or chattels or bank accounts, but which are not limited to items such as that. Relevant contributions can equally be the bringing of benefits by a party to the relationship, and those benefits need not be crystallised as at the commencement of cohabitation. Thus, it was quite open to his Honour here, and indeed it has been a common occurrence throughout the entire operation of the Family Law Act 1975 (Cth) for accumulated service, which ultimately leads to a redundancy payment, to be taken into account as an initial contribution of a party. The only rider to this is that “double dipping” cannot occur… by also taking into account the pre-cohabitation service when assessing the receipt of the actual redundancy payment subsequently.’