In the case of Jenkins & Jenkins  FamCA 224, the wife sought an Order for costs be made against the husband, although neither party had exactly achieved the outcome they had sought in their Application and Response.
In this case, the wife had, since separation, periodically asked for spouse maintenance support from the husband and he, periodically, had provided additional support such that the wife did not actually apply for spouse maintenance until July 2017, although the proceedings between the parties had been commenced by the wife in 2014.
The husband made his first offer to pay her periodic spousal maintenance in November 2017, four months after she had filed her Application. That initial offer was conditional.
The husband had made the offer to pay without admission of capacity or need. The importance in the case was that the Judge was satisfied that his repeated offers in the month prior to the hearing to pay her a reasonably substantial amount per month did amount to an acceptance by him of both her need and his capacity to pay it.
Neither party was determined by the Judge to be wholly unsuccessful. The Judge pointed to the discretionary nature of the exercise.
The matter resolved but the husband’s conditions which were in his first offer, were not part of the final resolution.
The court found that although the husband knew of the wife’s need and his own capacity to contribute to her financial support, the wife had to bring an application to the court in order to obtain the outcome she ultimately did obtain.
The reality for the husband was that had he conceded to the requests for periodic support when the wife first sought it even with the costs order his outlay was less. The commercial realities of negotiating without admission must be considered. Is it better not to make any offer?