Australia: Buying food, drinks and women: an assessment of a partys conduct as it relates to family law

Last Updated: 14 February 2017
Article by Sherlene Heng and Amy Pun

Parties who have been in a de facto relationship (heterosexual or same sex) or marriage and have separated sometimes ask if his or her (or the other party's) conduct has any impact on their financial settlement. Common questions include:

  1. Will I get more if my partner/spouse has cheated on me?
  2. Will I get more if my partner/spouse is the one who decided to leave?
  3. Will I get more if my partner/spouse gambles?
  4. Will I get more if my partner/spouse is a heavy drinker?

The answers to these questions is usually no. A party's conduct normally has no impact on his or her financial settlement. However, in some situations, conduct can affect the final division of the property pool.

In 1981, Chisholm and Jessep concluded that

"in determining maintenance and property applications under the Family Law Act, it is not relevant that one spouse was responsible for the breakdown of the marriage, or committed what was formerly regarded as a matrimonial offence...... it is not the intention of the Family Law Act to use financial orders for the purpose of rewarding or punishing the behaviour of married people......"

However, they went on to say, the Court is required to

"have regard to certain types of conduct closely related to financial matters... conduct of a party that unreasonably reduces the value of property of the parties or of either of them or conduct of a party which unreasonably weakens his or her financial position."1


Pre Stanford2, in the matter of Kowaliw & Kowaliw3, the Court stated that:

"financial losses incurred by parties or either of them in the course of a marriage...should be shared...except...where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets or where one of the parties has acted recklessly, negligently, or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value."

However, the position has likely changed post Stanford. The recent decision of Owen4 affirms that funds are unlikely to be added back to the balance sheet. There are still some cases where the Court may adjust the parties' existing property by notionally adding back sums which have been wasted.

For example, in the matter of Blackwell & Trantor5, the wife was able to identify $17,000 of the husband's expenditure on internet dating and dating generally and the Court allowed that $17,000 to be added back.

In the matter of Asher & Asher[6], the husband gave evidence that he had spent money post separation on "buying food, drinks, and women" and "prostitution, prostitution, prostitution", having pointed out to the Court that these were very expensive services. These liabilities were deleted from the Balance Sheet.

However, these are the exception rather than the rule and specific evidence will need to be presented if seeking an add back and submissions made on how that might be just and equitable in the specific circumstances of the case.


In the 1997 Full Court decision of Kennon & Kennon7 the court remarked that

'where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, have made his or her contributions significantly more arduous than they ought to have been, that is a factor which a trial judge is entitled to take into account in assessing the parties' respective contributions."

The important elements of this principle are that the party seeking an adjustment in their favour on the basis of contributions must prove to the Court both that:

  1. there has been a course of violent conduct during the relationship and prior to separation; and
  2. it has in fact had significant adverse impact on his or her contributions or made his or her contributions significantly more arduous.

The potentially negative contribution of the offender in these situations is not taken into account; only the adjustment made in favour of the victim on the basis of his or her contribution.

Two of the judges in Kennon8 stated that the application of the principle was not limited to domestic violence. The Full Court in Spagnardi & Spagnardi9 confirmed that the principle included misconduct generally rather than only in relation to matters involving domestic violence.

However, this principle has not always been followed in subsequent cases. The trial judge in Palmer & Palmer10 considered that he was not bound by the principle and declined to follow it. The trial judge in Kozovska & Kozovski11 stated that:

"Clearly the adjustment that the Full Court contemplated in its decision in Kennon was not meant to be compensatory but more in the nature of perhaps symbolic recognition."

There is clear difficulty in quantifying how this adjustment should be made and how a party is to produce evidence about the quantifiable effect of the conduct on their capacity to contribute. Certainly if relying on the principle, the party doing so must be able to lead detailed evidence with respect to the conduct and the physical and mental impact on him or her as a result.


One party's conduct may have an impact on the future needs of the other party. For example, family violence, physical, mental and emotional abuse may play a significant part in a person's ability to find employment when the relationship or marriage is dissolved. The unemployed or underemployed party may receive an adjustment in his or her favour for future needs but must show evidence that the conduct caused the impact.

Given that the impact of conduct on the Balance Sheet may not be taken into account, the Court may consider it in this section. For instance, if it is shown that a party has gambled funds (the total losses being known or unknown) or consumed alcohol excessively (the total expenditure being known or unknown), this may potentially represent an adjustment in the other party's favour when it comes to a final property settlement pursuant to Section 75(2)(o) of the Family Law Act 1975 which relates to 'any fact or circumstances, which in the opinion of the Court, the justice of the case requires to be taken into account'.


The hundreds of pages of bank statements and credit card statements that are exchanged in a family law matter may hold valuable information which allows a party to make a case in their favour when it comes to assessing contributions.

If a party can provide evidence to prove (or disprove, should the application be made against him or her) that there has been a course of conduct by the other party that has affected his or her capacity to make contributions (which is more than an inference), it is possible for him or her to obtain an adjustment for contributions. However, the adjustment is only granted in a 'narrow band' of cases depending on circumstances and trial judges may use their discretion not to apply the principle at all.

If a party can provide evidence to prove or disprove that the conduct of a party caused them to have increased future needs such as impacting on their health, future earning capacity, or such other matter that needs to be taken into consideration, it is also possible to obtain an adjustment for future needs factors.

The existing principles concerning the relevance of domestic violence and misconduct has been criticised by a number of trial judges and academics, as well as some members of the legal profession. However, amendments in this area are unlikely to occur quickly and at the time of writing remain as above.


1 Chisholm, R and Jessup, O. Fault and Financial Adjustment under the Family Law Act [1981] UNSW Law Journal 43

2 Stanford v Stanford (2012) 247 CLR 108

3 Kowaliw & Kowaliw [1981] FLC 91-092

4 Owen & Owen [2015] FCCA 2823

5 [2014] FCCA 1667

6 [2016] FCCA 2072

7 Kennon & Kennon [1997] FamCA 27; (1997) FLC 92-757

8 Ibid

x9 Spagnardi & Spagnardi [2003] FamCA 905

10 Palmer & Palmer [2010] FMCAfam999

11 Kozovska & Kozovski [2009] FAMCAfam 1014

For further information please contact:

Sherlene Heng, Senior Associate
Phone: +61 2 9233 5544

Amy Pun, Graduate Solicitor

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions