Letchford & Havel (No 4)
[2025] FedCFamC2F 826
•20 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Letchford & Havel (No 4) [2025] FedCFamC2F 826
File number(s): ADC 2366 of 2022 Judgment of: JUDGE DICKSON Date of judgment: 20 June 2025 Catchwords: FAMILY LAW – COSTS – Parenting and property proceedings – Costs application filed by the Applicant following final hearing – Where the First Respondent and Second Respondents oppose the application – Where the First Respondent and Second Respondents are self-represented – Consideration of the factors set out in section 117(2A) – Where the Applicant received a section 102NA grant of legal aid partway through the proceedings and was previously privately represented – Where the Applicant seeks costs that pre-date the grant of legal aid – Where the First and Second Respondents failed to accept reasonable offers of settlement – Where the Respondents have the financial means to meet a costs order – Order for costs in relation to property applications only – Costs to be paid to the Applicant by the First and Second Respondents at scale. Legislation: Family Law Act 1975 (Cth) s 117.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17.
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) Sch 1.
Cases cited: Browne & Greene (2002) FLC 93-115
Cooper & Oakley (No 2) [2012] FamCAFC 187
Cross & Beaumont [2008] 39 FamLR 389
D & D (Costs) (No 2) (2010) FLC 93-435
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v FISH and Another (2005) 33 Fam LR 123
In the Marriage of P J and V Pennisi (1997) 22 Fam LR 249
JEL v DDF (2001) 28 FamLR 119
Letchford & Havel (No 3) [2024] FedCFamC2F 1509
Nada & Nettle (Costs) (2014) FLC 93-612
Pascoe & Larson(No 2) [2022] FedCFamC1A 126
Penfold & Penfold (1980) 144 CLR 311
Whisprun Pty Ltd v Dixon (2004) 200 ALR 447
Division: Division 2 Family Law Number of paragraphs: 79 Date of hearing: 6 June 2025 Place: Adelaide Counsel for the Applicant: J. Dillon Solicitor for the Applicant: ASW Lawyers The First Respondent: Self-represented The Second Respondents: Self-represented ORDERS
ADC 2366 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LETCHFORD
Applicant
AND: MR HAVEL
First Respondent
AND: MRS HAVEL and MR K HAVEL
Second Respondents
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
20 JUNE 2025
THE COURT ORDERS THAT:
1.Mr Havel do pay Ms Letchford’s legal costs and disbursements fixed in the sum of $24,689.23 within 60 days of the date of this Order.
2.Mrs Havel and Mr K Havel do pay Ms Letchford’s legal costs and disbursements fixed in the sum of $14,330.58 within 60 days of this Order.
3.Mr Havel do pay Ms Letchford’s legal costs in relation to the Amended Application in a Proceeding filed 4 February 2025 fixed in the sum of $3,529.52 within 60 days of this Order.
4.Mrs Havel and Mr K Havel do pay Ms Letchford’s legal costs in relation to the Amended Application in a Proceeding filed 4 February 2025 fixed in the sum of $7,059 within 60 days of this Order.
5.All extant applications are hereby dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION
These proceedings concern an Application in a Proceeding filed by the applicant, Ms Letchford (‘Ms Letchford’) on 28 November 2024 seeking costs against the first respondent, Mr Havel (‘Mr Havel’) and second respondents, Mrs Havel and Mr K Havel (‘Mrs Havel’ and ‘Mr B Havel’) following final hearing for parenting and property matters.[1]
[1] The Application in a Proceeding was amended on 4 February 2025.
The Application in a Proceeding came before the Court for hearing on 6 June 2025. The orders sought by Ms Letchford are opposed by Mr Havel, Mrs Havel and Mr K Havel.
These are the Courts Reasons following the hearing.
DOCUMENTS RELIED UPON
Ms Letchford filed an Outline of Case Document (Final Hearing) on 23 May 2025 in which she relies upon the following documents:
(1)Application in a Proceeding of Ms Letchford filed 26 (sic) November 2024;
(2)Affidavit of Ms Letchford filed 26 November 2024;
(3)Affidavit of Service of Mr C filed 18 December 2024;
(4)Affidavit of Service of Ms D filed 18 December 2024;
(5)Amended Application in a Proceeding of Ms Letchford filed 4 February 2025;
(6)Affidavit of Ms Letchford filed 4 February 2025; and
(7)Affidavit of Ms D filed 28 March 2025.
Ms Letchford also tendered and relied upon Exhibit M7 being a colour coded version of “Annexure MSL-2” to the Affidavit of Ms Letchford filed 4 February 2025.
Mr Havel filed an Outline of Case Document (Final Hearing) on 26 May 2025 in which he relies upon the following documents:
(1)Affidavit of Mr Havel filed 21 February 2021 (sic);
(2)Response to Initiating Application filed 21 February 2025; and
(3)Final Property and Children’s Orders made 29 October 2024.
Mrs Havel and Mr K Havel filed an Outline of Case Document (Final Hearing) on 26 May 2025 in which they rely upon the following documents:
(1)Response to Initiating Application of Ms Havel filed 21 February 2025;
(2)Affidavit of Mrs Havel filed 21 February 2025; and
(3)Final Orders made 29 October 2024.
ORDERS SOUGHT
The Applicant, Ms Letchford
Ms Letchford’s (Amended) Application in a Proceeding filed 4 February 2025 seeks the following orders:
1.That the First and second respondent do pay the Applicant’s costs since 2 September 2022 on an indemnity basis.
2.That the time for the Applicant to file an Amended Application and Affidavit be extended to 4 February 2025.
3.That the First Respondent do pay to the ASW Lawyers Trust Account for and on behalf of the Applicant costs in the amount of $51,125.86:
a. As to the sum of $21,396.40 on account of parenting matters.
b. As to the sum of $27,666.53 on account of property matters.
c. As to the sum of $2,062.94 on account of disbursements.
4.That the Second Respondent’s do pay to the ASW Lawyers Trust Account for an on behalf of the Applicant costs in the amount of $17,786.9:
a. As to the sum of an account of $15,706.03 on account of property matters.
b. As to the sum of $2,062.94 on account of disbursements.
5.That in the event the Court does not find in the Applicant’s favour to pay costs as sought at paragraphs 1, 3 and 4 herein, that the First and Second Respondents do pay costs to the Applicant at scale. [2]
[2] At hearing, paragraph 1 of the said (Amended) Application was amended orally with leave to read “5 September.”
The First Respondent, Mr Havel
Mr Havel’s (Amended) Response to an Application in a Proceeding filed 21 February 2025 seeks the following orders:
1.That the Amended Application for Costs in the Proceeding filed by the Applicant on 4th February 2025 be dismissed.
2.That the Applicant do pay the First Respondent’s costs since June 2022 on an indemnity basis.
3.That in the event the Court does not find in the First Respondent’s favour to pay costs as sought at paragraph 2, the Applicant pay costs to the First Respondent at scale.[3]
[3] At hearing Mr Havel informed the Court that he longer sought an order for costs against Ms Letchford and consented to an order dismissing those aspects of his application.
The Second Respondents, Mrs Havel and Mr K Havel
Mrs Havel and Mr K Havel’s Response to an Application in a Proceeding filed 21 February 2025 seeks the following order:
1.That the Amended Application for Costs in the Proceeding filed by the Applicant on 4 February 2025 be dismissed.
BACKGROUND AND PROCEDURAL HISTORY
On 29 October 2024 the Court made final orders in relation to the parties competing applications for parenting and property orders.
There has been no appeal filed in relation to the final orders.
The background to the parties’ proceedings is comprehensively set out in Letchford & Havel (No 3) [2024] FedCFamC2F 1509.[4]
[4] Letchford & Havel (No 3) [2024] FedCFamC2F 1509.
I have read all the evidence relied upon by all the parties in the proceedings. I do not intend to repeat the background facts or chronology for the purposes of these Reasons. I am not required to mention every fact or argument relied upon.[5] Reasons are not a transcript of the hearing.
[5] Whisprun Pty Ltd v Dixon (2004) 200 ALR 447.
The parties have addressed the matters raised in their respective Outline of Case Documents and have supplemented their written outlines with oral submissions.
LEGAL PRINCIPLES
Any application for costs must be considered by reference to section 117 of the Family Law Act 1975 (Cth) (‘the Act’). Section 117(1) provides that usually, each party to proceedings under the Act bear his or her own costs.
If, however, the Court is satisfied that there are circumstances that justify it in doing so, the Court may make such order for costs as the Court considers just.
Section 117(2A) of the Act sets out criteria that the Court shall have regard to in considering an application for costs:
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party’
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
(Emphasis in original)
Whilst the primary consideration of section 117 of the Act is that each party should pay their own costs, in this case, Ms Letchford argues that there are circumstances justifying the Court making an order for costs which are identified below.
It is Ms Letchford’s position that the respondents failed to accept reasonable offers of settlement made by her during the litigation, which would have avoided the costly and stressful Trial which took place before me in three separate tranches across 2024. The respondent’s failure to heed Ms Letchford’s reasonable offers of settlement, she says, resulted in the Court making orders close to, or more than, her stated offers. In those circumstances, Ms Letchford says that it would be just for the Court to make an order for costs in her favour.
On the other hand, Mr Havel, Mrs Havel and Mr K Havel collectively argue that the Court should make no order for costs in circumstances where Ms Letchford;
(a)was in receipt of legal aid and therefore should not be eligible for costs;
(b)is in a far superior financial position than Mr Havel;
(c)allegedly failed to disclose her de facto relationship with Mr E until Trial;
(d)was unsuccessful in her demands for property settlement; and
(e)allegedly failed to comply with Court orders including as to disclosure.
The submissions of each of the parties are discussed below.
DISCUSSION
No one factor in section 117(2A) is determinative and the Court may give such weight as it considers relevant to any factor.[6] I address the costs criteria relevant to this case below.
[6] Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v FISH and Another (2005) 33 Fam LR 123.
(a) Section 117(2A)(a) – The Financial Circumstances of the Parties
Ms Letchford argues that because of the final orders made on 29 October 2024, Mr Havel retains two properties registered in his sole name, being one property in City C, South Australia and the other in Town F, Queensland. Mr Havel continues to work and now shares his household expenses with his domestic partner, Ms H. Further, whilst Mrs Havel and Mr K Havel did not execute a Financial Statement containing any meaningful information, Ms Letchford argues that it was obvious from their evidence given at Trial that they are persons of comfortable financial means and have significant amounts of cash available to them. Accordingly, Ms Letchford argues that the respondents have financial resources sufficient to enable them to meet any costs order.[7]
[7] Family Law Act 1975 (Cth) s 117 (2A)(a).
Mr Havel argues that Ms Letchford is in a far superior financial position to himself. Mr Havel states that he is repaying various debts to his parents, does not own the properties in City C nor Town F (which belong to his parents but are registered to him) and is renovating a modest property with Ms H. It is his position that any costs order would result in “… undue hardship and contradict the principle of equality or arms (sic).”[8]
[8] See the Outline of Case Document (Final Hearing) of Mr Havel filed 26 May 2025.
Mrs Havel and Mr K Havel argue that Ms Letchford was in receipt of legal aid, whilst they are self-funded. Their Case Outline sets out in some detail, allegations regarding the mother’s lifestyle with Mr E and the fact that Ms Letchford will be able to work as a professional upon completion of her tertiary studies.
The respective Case Outlines of the respondents address a myriad of factual matters which are not relevant for the purpose of this application. I bring to account that they are unrepresented and confirm for their benefit, that an Outline of Case Document is not evidence upon which I can rely.
(b) Section 117(2A)(b) – Whether any party is in receipt of legal aid and the terms of the grant of assistance
The respondents all rely on this subsection as a reason why there should be no order for costs.
On 15 November 2023, the Court made a mandatory declaration pursuant to section 102NA of the Act. The Trial listed to commence on 13 February 2024 for four days was confirmed.
The declaration was made because on 29 May 2023 Ms Letchford obtained a final intervention order against Mr Havel for her personal protection. The declaration enabled Ms Letchford to obtain a grant of legal aid from the Legal Services Commission of South Australia for the Trial. Ms Letchford and her legal representatives were therefore in receipt of legal aid funding for the preparation and running of a complex four-day parenting and property Trial, and written submissions.
It must be observed that had Ms Letchford not availed herself of the legal aid funding, the costs order sought by her now would undoubtedly be much higher. It also needs to be observed that Mr Havel was also eligible for a reciprocal grant of legal aid, but for reasons that were not made apparent at Trial, did not avail himself of that funding.
Ms Letchford is not seeking costs which post-date the grant of legal aid issued 5 December 2023 following the section 102NA declaration made on 15 November 2023. In my view this is the proper approach to be taken in the circumstances of this case.
(c) Section 117(2A)(c) – The conduct of the parties to the proceedings
The parties all make complaints about each other as to conduct during the litigation.
For her part, Ms Letchford contends that the combined conduct of the respondents made her case unduly expensive and that the respondents were unnecessarily combative. She highlights that it took Mrs Havel and Mr K Havel over six months to comply with the orders for the filing of answering documents, during which time the proceedings “stalled” while waiting for them to do so. Even then, she contends that the Financial Statement filed by Mrs Havel and Mr K Havel was “…largely devoid of information.”[9]
[9] See the Affidavit of Ms Letchford filed 4 February 2025 at paragraph 23.
Mr Havel generally complains that Ms Letchford was difficult, unreasonable in her attempts to obtain unredacted bank statements by way of disclosure, failed to provide evidence regarding the overpayment to Mr J until Trial, and withheld information regarding her changed financial circumstances.
Mrs Havel and Mr K Havel also complain about Ms Letchford not disclosing her relationship with Mr E until Trial. The inference made by Mrs Havel is that her failure to do so may have impacted on her receipt of legal aid. This submission is incorrect. Legal aid funding provided pursuant to the mandatory provisions of the Commonwealth Family Violence and Cross-Examination of Parties Scheme is not impacted by a person’s financial circumstances.
Ms Letchford was entitled to a grant of legal aid by virtue of the section 102NA Order being made where a final Intervention Order had been made for her protection against Mr Havel on 29 May 2023.
(d) Section 117(2A)(d) – Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court
With respect to the orders for financial disclosure, Mrs Havel argues that Ms Letchford “… routinely delayed or avoided compliance.”[10] Her complaints related largely to credit card records for Mr E, alleged rental property income and the late provision of disclosure regarding the overpayment to Mr J.
(e) Section 117(2A)(e) – Whether any party to the proceedings has been wholly unsuccessful in the proceedings
[10] See the Outline of Case Document (Final Hearing) of Mrs Havel and Mr K Havel filed 26 May 2025 at paragraph d, page 3.
Ms Letchford contends that Mr Havel was wholly unsuccessful in respect of the competing parenting applications. It is her position that the orders ultimately made by the Court reflected the orders sought by her at Trial. Further, Ms Letchford maintains that the respondents collectively were also wholly unsuccessful in seeking to quarantine the City C and Town F properties from the assets to be divided by the parties, and that Mr Havel was unsuccessful in resisting an equalisation of their respective superannuation entitlements.[11]
(f) Section 117(2A)(f) – Offers in writing to settle the proceedings have been made and the terms of any such offers
[11] Family Law Act 1975 (Cth) s 117 (2A)(e).
It is an important part of Ms Letchford’s application that she relies upon various offers of settlement made by her during the currency of the litigation in an attempt to resolve the proceedings.[12]
[12] Family Law Act 1975 (Cth) s 117 (2A)(f).
I am not persuaded that the offers of settlement made by Ms Letchford in writing on 9 September 2022 and 26 October 2022 attract the relief sought by Ms Letchford at this hearing. However, in my view, Ms Letchford’s offers of settlement dated 5 September 2022 to Mr Havel and 22 August 2023 to Mr Havel, Mrs Havel and Mr K Havel fall into a different category.
Ms Letchford commenced the initial proceedings on 1 June 2022 seeking final orders for property settlement. On 5 September 2022, Ms Letchford offered to settle the property applications with Mr Havel on the following terms:
(1)That Mr Havel pay Ms Letchford a cash sum of $308,000;
(2)That Mr Havel retain the properties at City C and Town F; and
(3)That the parties superannuation entitlements be equalised.
On 12 December 2022, Mrs Havel and Mr K Havel filed an Application in a Proceeding seeking to join the property proceedings. An order was made by consent on 25 January 2023 permitting them to do so.
On 22 August 2023, Ms Letchford offered to resolve the property applications on the following terms;
1.The First Respondent make a cash payment to my client in the sum of $150,000.00 within 60 days of a final order.
2.My client will transfer her interest in the [Town F] property to the first respondent (contemporaneously with the cash payment to her of $150,000.00 with the cost of the transfer to be borne in al thing by the first respondent.
3.In the event the cash payment is not made within 60 days of a final order, the [Town F] property be sold and the net proceeds of sale disbursed as follows:
a. The first $150,000.00 to my client;
b. The balance to be divided between the respondents per any agreement reached between them.
4.That each party retain any asset in their possession.
5.That each party retain their own superannuation interest.
6.That each party pay their own costs.
The offer was said to remain open for a period of 14 days.
On 15 November 2023, Mr Havel counter offered in writing with an offer to settle the parenting applications and rejected entirely Ms Letchford’s offer to settle property as set out above. Mr Havel stated in this correspondence that his offer to settle parenting was conditional upon Ms Letchford accepting an offer to settle property, with such offer to be forwarded under separate cover of letter by Mrs Havel and Mr K Havel.
On 16 November 2023, Mrs Havel and Mr K Havel counter offered in writing with an offer to settle the property applications based on a settlement sum to Ms Letchford fixed at $75,000 and agreed that Mr Havel and Ms Letchford retain their own respective superannuation entitlements. The offer was said to be conditional upon the parenting applications resolving contemporaneously as per the letter of offer made by Mr Havel as set out in paragraph 46 herein.
The orchestrated offers set out in paragraphs 46 and 47 herein might be classified as “bundled offers” or “packaged offers”, where the settlement of parenting applications are said to be conditional upon the acceptance of a property offer or vice versa as the case may be. In my view the offers were incapable of acceptance.
On the 21 and 22 November 2023, separate letters were sent by Ms Letchford’s solicitors to the solicitors representing Mr Havel, Mrs Havel and Mr K Havel rejecting their proposals.
No further offers were made by the parties save for a written offer made by Mrs Havel and Mr K Havel on 4 January 2024, which reduced the settlement sum payable to Ms Letchford to $60,000.[13]
[13] See the Affidavit of Mrs Havel filed 21 February 2025 at Annexure “MSH-4”.
CONCLUSION
The application for costs sought by Ms Letchford in relation to the parenting dispute was only faintly pressed at hearing.
I do not consider that the circumstances of this case justify an order for costs in relation to the parenting applications and counsel correctly “read the room” during his submissions.
The offer of settlement made by Ms Letchford on 9 September 2022 in relation to parenting that the father’s time spending with the children be “as agreed” is unenforceable. If orders were made for time spending as proposed by her, it would have required high levels of communication between the parties, which is difficult in circumstances where they have a mistrustful coparenting relationship and there is a final Intervention Order in place for the protection of the mother. Furthermore, the offer of settlement included a change of surname for the children to “Letchford” which was not pursued at Trial. There were no other particularised written offers made by Ms Letchford during the litigation to resolve the parenting disputes.
The parenting applications involved a genuine dispute between the parties and an Independent Children’s Lawyer. Historically, there were allegations of chronic drug use, family violence, poor communication and using the children as pawns in the adult dispute. Those matters quite properly required factual findings by the Court and a consideration of what orders were in the children’s best interests as the parties could not agree.
I therefore decline to exercise my discretion to consider an order for costs in relation to the parenting applications.
I do consider however, that there are circumstances justifying an order for costs in relation to the property applications. Having carefully considered all the material filed by the parties and the oral submissions made, I have come to the opinion that there are circumstances that justify the Court making an order for costs as sought by Ms Letchford in relation to the property aspects of this case.[14]
[14] Penfold & Penfold (1980) 144 CLR 311, [315].
Ms Letchford’s written offers of settlement dated 5 September 2022 and 22 August 2023 were reasonable given the ultimate orders made by the Court for property settlement being a settlement sum of $294,275 and an equalisation of superannuation.
The first offer of settlement dated 5 September 2022 for a payment to Ms Letchford of $308,000 and an equalisation of superannuation only just exceeded the settlement sum ordered at Trial by $13,725. The offer was made only three months after Ms Letchford filed her Initiating Application and well before Mrs Havel and Mr K Havel voluntarily sought to intervene, subsequently incurring significant legal fees.
The Full Court have recognised that the Court is not limited to considering offers which are greater than the amount awarded. The closer the offer to the awarded sum, the more weight should be given to this factor in considering the question of costs. The principle is not to be rigidly applied.[15]
[15] In the Marriage of P J and V Pennisi (1997) 22 Fam LR 249.
The offer dated 22 August 2023 comprised a payment of $150,000 and no superannuation splitting order. The settlement sum ultimately ordered by the Court exceeded the amount Ms Letchford offered by $144,275 and superannuation was equalised, with an amount of $43,739 ordered to be split from Mr Havel’s superannuation to Ms Letchford. In dollar terms, Ms Letchford at Trial exceeded her written offer of 22 August 2023 by $188,014.
It must be observed that the combined costs of the respondents are $323,676.[16] In my opinion, the offer made by Ms Letchford on 22 August 2023 should have been seriously considered by the respondents, given what was ordered at Trial and the large sum paid by them on account of legal fees.
[16] See the Affidavit of Mrs Havel filed 21 February 2025 at paragraph 29.
The Court has observed that failure to heed a reasonable offer is a matter to which significant weight ought to be given.[17] In this case, I am satisfied that it is an important matter which I must bring to account.
[17] Browne & Green (2002) FLC 93-115.
I am not persuaded that Mr Havel’s alleged inferior financial position is sufficient to deter me from making an order for costs. The Court has recorded on many occasions that neither impecuniosity, nor incapacity to meet an order for costs, can, per se, be determinative of whether an order for costs ought to be made. This is because an impecunious litigant could otherwise litigate with impunity.[18]
[18] Cooper & Oakley (No 2) [2012] FamCAFC 187; Nada & Nettle (Costs) (2014) FLC 93-612; Cross & Beaumont [2008] 39 FamLR 389.
I am satisfied that both Mrs Havel and Mr K Havel have the financial means to meet a costs order. The material filed on their behalf does not suggest otherwise.
Having found that an order for costs is justified in relation to the property applications, the next question to consider is as to quantum and the terms.
Ms Letchford seeks, at first instance, an order that Mr Havel, Mrs Havel and Mr K Havel pay her costs incurred from 5 September 2022 on an indemnity basis in the amounts set out in paragraph 8 herein. In the alternative, Ms Letchford seeks that her costs be paid “at scale.”
It is also open to the Court to fix the amount for costs.[19]
[19] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 12.17; Pascoe & Larson (No 2) [2022] FedCFamC1A 126.
Having regard to the costs sought, I am satisfied on the facts of this case that it is appropriate to make an order for costs as sought by Ms Letchford, but “at scale.” I do not consider that there are any exceptional circumstances demonstrated by Ms Letchford which would justify an order for costs on an indemnity basis.[20] The failure to accept an offer that, in retrospect, should have been accepted does not, without more, justify an indemnity costs order.[21]
[20] D & D (Costs) (No 2) (2010) FLC 93-435.
[21] JEL v DDF (2001) 28 Fam LR 119.
Counsel for Ms Letchford highlighted during submissions that the global costs sought by Ms Letchford “at scale” are $65,374.81 and the costs sought on an indemnity basis are $66,168.52. Self evidently, there is very little difference between the two amounts. Counsel also contended that Ms Letchford does not seek costs after 30 November 2023, given that she received a grant of legal aid as and from 5 December 2023.
Paragraph 14 of Ms Letchford’s affidavit filed 4 February 2025 sets out the costs sought at scale. Following my ruling, the costs sought against Mr Havel, Mrs Havel and Mr K Havel in relation to property only are:[22]
(a)Mr Havel - $20,804.02;
(b)Mr Havel, Mrs Havel and Mr K Havel - $11,655.64; and
(c)Mrs Havel and Mr K Havel - $6,560.16.
[22] As the orders sought by Ms Letchford do not include an amount for GST, I do not propose to include GST in the amounts ordered to be paid by Mr Havel, Mrs Havel and Mr K Havel.
I propose to divide the costs sought against Mr Havel, Mrs Havel and Mr K Havel as set out in paragraph 70(b) herein into one third each, being the sum of $3,885.21 to be added to the amounts for each respondent. Therefore, the total amount of costs to be paid by Mr Havel at scale is $24,689.23 and the total amount of costs to be paid by Mrs Havel and Mr K Havel is $14,330.58.
No helpful submissions were made as to the timeframe for the payment of costs. In keeping with the time allowed in Letchford & Havel (No 3) [2024] FedCFamC2F 1509, I propose to order that the costs be paid within 60 days of this order. The reality is that the costs order will likely be paid by Mrs Havel and Mr K Havel given my findings in my Reasons dated 29 October 2024. Mr Havel’s proportion of the order will likely be added to the list of debts that Mrs Havel and Mr K Havel have paid on behalf of Mr Havel now for many years.
Costs Sought By Ms Letchford For This Application
If successful in securing an order for costs, Ms Letchford’s counsel sought further costs of this application being $16,345 in solicitor fees, and counsel fees in the amount of $3,750. No breakdown was provided to the Court to assist in understanding the solicitor’s fees and how they were comprised.
The oral application for costs was opposed by Mr Havel and Mrs Havel.
In considering section 117 of the Act, I consider that it is just to make an order for costs as sought by Ms Letchford, but on scale and in accordance with Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) (‘the Rules’).
Ms Letchford has been successful in securing an order for costs for property settlement, but not in relation to parenting. Ms Letchford’s counsel did not address section 117(2A) in relation to this discrete costs application.
I propose to exercise my discretion and to allow the following Items from Schedule 1 of the Rules for this interlocutory application:[23]
(a)Item 2 - $3141.50 - solicitor fees;
(b)Item 4 - $2093.62 - solicitor’s fees; and
(c)Item 7 - $5353.45 - counsel fees.
[23] The Court has applied the scale of costs in Schedule 1 of the Rules as at the date of hearing and not the increased rate as reflected in the amendments to the Rules which came into effect on 10 June 2025.
The total costs in paragraph 78 herein are $10,588.57. In keeping with my earlier ruling, I propose that this amount be divided one third each for each respondent. This results in Mr Havel paying $3529.52 and Mrs Havel and Mr K Havel paying collectively $7,059 to Ms Letchford for the costs incurred in relation to her (Amended) Application in a Proceeding for costs filed 4 February 2025. These costs are to be paid in 60 days of my Orders.
For all the above Reasons, the Court makes the Orders set out at the commencement of this Judgment.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 20 June 2025
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