Ackerman and Eastwood

[2013] FCCA 1055

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACKERMAN & EASTWOOD [2013] FCCA 1055

Catchwords:
FAMILY LAW – Costs – property and children proceedings – case fixed for hearing in April 2012 but not reached – case re-fixed in November 2012 – case proceeded to judgement after three day trial – husband made written offer to compromise proceedings in May of 2012 – offer rejected by wife – husband made significant further concession regarding occupation of former family home on morning of second day of hearing – matters to be considered – financial circumstances of the parties – conduct of the parties – offers of settlement.

Legislation:  
Family Law Act 1975, ss.117(1); 117(2); 117(2A)

In the marriage of I and I (No.2) 22 Fam LR 557
Penfold v Penfold (1980) 5 Fam LR 517
Browne v Green 29 Fam LR 428
Steel and Steel (1992) FLC 92-306

Pennisi v Pennisi (1997) FLC 92-774

Applicant: MR ACKERMAN

Respondent: MS EASTWOOD (FORMERLY ACKERMAN)

File Number: ADC 2024 of 2011

Judgment of: Judge Brown

Hearing date: 25 July 2013

Date of Last Submission: 25 July 2013

Delivered at: Adelaide

Delivered on: 9 August 2013

REPRESENTATION

Counsel for the Applicant: Ms Lewis

Solicitors for the Applicant: Weatherly & Associates

Counsel for the Respondent: Ms Ross

Solicitors for the Respondent: Minney & Associates

ORDERS

1. The wife pay the husband’s costs fixed in the sum of $8,324.00 within ninety (90) days of the date of these orders.

2. All extant applications are otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Ackerman & Eastwood is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADC 2024 of 2011

MR ACKERMAN

Applicant

And

MS EASTWOOD (FORMERLY ACKERMAN)

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to the issue of costs, following a three day hearing, particularly the relevance of a written offer to compromise the case, made prior to the commencement of the trial in question. 

2. Mr Ackerman is the applicant for costs.  The respondent, who resists the application in full, is his former wife, Ms Eastwood.  They are the parents of X and Y, aged twelve and nine respectively.  

3. On 20 February 2013, following a three day trial, I determined that the parties’ matrimonial estate, consisting of net assets found to be worth approximately $550,000.00 and superannuation valued at approximately $136,000.00 should be divided 42/58% in the husband’s favour, in respect of the non-superannuation assets, with the superannuation to be divided equally. 

4. So far as final parenting arrangements for X and Y were concerned, there was no dispute between the parties that the presumption of equal shared parental responsibility should be applied. 

5. The dispute between them centred on the division of time the children should spend with each of their parents, particularly on a fortnightly basis, during school terms. 

6. The husband aspired to be as fully involved in the care of the two children as possible.  His preference was equal time, but he was open to…