Nikolic & Nikolic
[2025] FedCFamC2F 724
•13 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nikolic & Nikolic [2025] FedCFamC2F 724
File number(s): SYC 7170 of 2023 Judgment of: JUDGE STREET Date of judgment: 13 May 2025 Catchwords: FAMILY LAW – Joint decision-making responsibility in respect of all major long term decisions – no ICL costs order. Legislation: Family Law Act 1975 (Cth) Cases cited: Kapoor & Kapoor [2024] FedCFamC2F 605 Division: Division 2 Family Law Number of paragraphs: 22 Date of last submission/s: 13 May 2025 Date of hearing: 12 May 2025 & 13 May 2025 Place: Sydney Counsel for the Applicant: Mr E McMahon Solicitor for the Applicant: Jack Rigg Solicitors Counsel for the Respondent: Mr J Smith Solicitor for the Respondent: Jc Legal Practice Counsel for the Independent Children's Lawyer: Mr S Scarlett Solicitor for the Independent Children's Lawyer: Mark MacDiarmid Family Law Specialist ORDERS
SYC 7170 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS NIKOLIC
Applicant
AND: MR NIKOLIC
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
13 MAY 2025
THE COURT ORDERS THAT:
1.The parents being the applicant and the respondent shall have parental responsibility for the children X born in 2017 and Y born in 2016 (‘the children’) and joint decision-making authority in respect of all decisions concerning major long term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) affecting the children.
2.The Court makes no order for costs in relation to the Independent Children’s Lawyer.
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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
MAJOR LONG TERM DECISION MAKING RESPONSIBILITY
These parenting proceedings were commenced on 26 September 2023. The parties were married in 2015 and divorced in 2024. The applicant mother (“the mother”) is currently 41 and the respondent father (“the father”) is currently 35. The parties separated on a final basis on 15 March 2023. There are two children of the relationship, being Y, now nine, and X, who is aged seven. At the commencement of the hearing yesterday, the parties had the opportunity to try and explore the making of consent parenting orders.
To the great credit of both the mother and the father, they were able to agree upon all issues except parental responsibility. The ability of both parents to have agreed on all other parenting issues reflects a substantial level of insight by both parents as to the need to prioritise the best interests of the children. The only remaining issue was that of parental responsibility, which the Court has heard today.
The following affidavits were read, with annexures as being treated as in evidence:
(1)Affidavit of Ms C affirmed on 17 December 2024;
(2)Affidavit of Ms B filed 14 September 2024;
(3)Affidavit of Ms Nikolic affirmed on 23 April 2025; and
(4)Affidavit of Mr Nikolic on 30 April 2025.
The following exhibits were also tendered into evidence in the proceedings:
(1)EXHIBIT A: Child Impact Report of Ms D dated 18 January 2024;
(2)EXHIBIT B: Applicant Tender Bundle; and
(3)Exhibit C: Respondent Tender Bundle.
In a sensible and child focused approach, the parties agreed to have the issue of parental responsibility dealt with without any cross-examination. That also shows a level of insight by both parents as to the best interests of the children and diminishes the potential for conflict between the parties. The Court has taken into account the meaning of parental responsibility in s 61B of the Family Law Act 1975 (Cth) (“the Act”), the parental responsibility that each party will retain under s 61C of the Act, and the requirements under s61CA of the Act if orders for joint major long term issues are to be made by the Court as opposed to the orders sought in the mother’s amended application which, in essence, is sole responsibility for long term decisions by the mother.
The Court has also taken into account the definition of family violence in s 4AB of the Act and the definition of major long-term issues in s 4(1) of the Act, the object in s60B of the Act and, in particular, the paramount consideration in s 60CA of the Act and how to determine the best interests of the children in accordance with s60CC of the Act. The Court has also taken into account the relevant principles identified in Kapoor & Kapoor [2024] FedCFamC2F 605.
In addition to the case outlines that had been provided, the Court heard from Mr McMahon in relation to the issue as to why the mother should have sole parental responsibility for major long term decisions. The focus in that regard was primarily on the material that was submitted into evidence concerning the children’s health. The Court was taken to the views expressed in the child impact report at paragraph 15. Reference was also made to the family report. However, that family report in paragraph 121, notwithstanding identifying issues of concern of the kind raised by Mr McMahon and the mother’s ability to address health issues with the father, recommended joint decision-making responsibilities by both parents consulting with each other in relation to the children’s needs.
The Court was taken to the history in relation to the health issues and in particular to paragraphs 189, 165 to 181, 240, 244 to 253, 106 and 109 of the mother’s affidavit as well as paragraphs 148, 151 and 153 and the differing position of the father in his affidavit at paragraphs 34 to 36.
At the adjournment yesterday, the Court identified that there is obviously a benefit in the parties being able to achieve consensus in respect of particular orders and that there may be, in relation to parenting where long term major issues have to be decided, an ability to carve out particular issues, and the Court expressly made reference to an issue of health. The mother’s proposed order, however, was not a carve out in relation to the health issue, and proposed to give her sole responsibility for all major long term issues, which was not recommended by the ICL. Whilst there has been a level of discord in relation to the competing positions of the mother and father in relation to health and, perhaps, belated insight by the father in respect of the health issues of the children, the parties were able to agree upon consent orders in respect of all other matters including departing from the recommendation of the family report writer to have communications through WhatsApp rather than using a parenting app. The ability of the parties to have agreed on the parenting orders, other than this issue of long term decision-making, shows a substantial degree of insight by both parents in prioritising the best interests of the children.
Whilst Mr McMahon identified the mother was concerned and fearful of difficulty in reaching joint major long term issue decisions, the more recent history of the matter, including the consent orders to which the Court referred, reflects a real ability of both parties to prioritise the best interests of the children.
Turning to s 60CC of the Act the Court is of the view that in relation to paragraph 2(a), joint major long term issue decision-making would best promote the safety of both the children and the mother as what is required is consultation and prioritising the best interests of the children. The more recent consent orders reflect an ability of the parties to do so.
In relation to s60CC(2)(b) of the Act, the views expressed by the children identify a wish for more involvement or more time with their father. Making an order that ensures the father participates in those major long term issues is more consistent with the views of the children, notwithstanding their age, that the Court places some weight upon. The Court is, also, of the view that the developmental, psychological, emotional and cultural needs of the two children will best be advanced by both parents having a real joint role in respect of major long term issue decision-making.
In respect of the capacity of each person, under s 60CC(2)(d) of the Act, to participate in that joint decision-making, the orders identified by consent reflect no real issue of lack of capacity of either parent to meet each child’s developmental, psychological, emotional and cultural needs. The Court does accept, as the Court has referred to, that there has been some discord about matters including nutrition and recognition of diagnosis of conditions of the two children. However, that area of discord is one in respect of which the Court is satisfied that it is in the best interests of the children that the parents have the capacity to properly consult each other and take each other’s views into account in arriving at a joint long term major issue decision.
In respect of s 60CC(2)(e) of the Act, this factor weighs in favour of the children having a relationship with each of the parents and the role played by each parent in making long term decisions advances the interests of the children.
In relation to section 60CC(2)(f) of the Act, the Court takes into account the factors that it has referred to being the substantial level of agreement that was able to be achieved by the parties in the parenting orders and, also, their agreement to use WhatsApp for communication, rather than a parenting app as was recommended by the family report writer.
In relation to section 60CC(2A) of the Act, the Court has taken into account the allegations that were identified in the affidavits in respect of alleged family violence and the making of an ADVO that has not continued. The Court has taken into account the circumstances that were explained in relation to that ADVO, and this is not a case in which it is necessary or appropriate for the Court to make any other findings, having considered those matters.
The Court has also taken into account the principles in s 69ZN of the Act, the whole of which the Court has taken into account. The fourth principle in s 69ZN of the Act provides that as far as possible, the proceedings are to be conducted in a way that will promote cooperative and child-focused parenting by the parties. Promoting that cooperative and child-focused parenting in the presence case is best advanced by a determination of the kind that the Court has identified. Without setting out at length past areas of conflict, promoting cooperative future parenting is best advanced by the Court reinforcing the importance of each parent in the future focusing on the best interests of the children in their consultation in respect of decision-making for long term major issues. The Court is satisfied, under s60CC of the Act, that it is, in fact, in the best interest of the two children that the form of order recommended by the ICL and the father be made in the present case.
The Court should make clear that it did not call upon the father or the ICL in response to the issues advanced by Mr McMahon, having come to a clear view as to the appropriate order to be made after having heard Mr McMahon and being of the view that having the parties and ICL trawl through the areas of past conflict would not promote cooperative and child-focused parenting in the future, which is a most important aspect for the parties. To reagitate the differing issues about nutrition and diagnosis of ADHD does not help in the future going forward. The Court did give consideration to whether or not there should be a carve-out of a more limited kind, but for the reasons the Court has identified, it is not satisfied that it is appropriate to do so in the present case and that it is not in the best interests of the children to have such a carve-out.
COSTS
These are proceedings in which the parties resolved by consent the property issues and then substantially agreed upon the parenting issues. The matters have occupied two days and the ICL has asked for a costs order. The Court is well alive to the limited financial resources of the parties having had the benefit of the material that was filed in support of the property orders to which the Court had regard in determining whether those orders were appropriate. The ICL, who has filed a costs notice, seeks costs from each party in the order of $5,023. The Court has taken into account the whole of the considerations required under s 117(2A) of the Act but in particular, the financial circumstances of the mother and father with their two children, in respect of which, they displayed considerable insight with the assistance of the ICL by being able to achieve parenting orders on all but one issue.
The absence of making a costs order in favour of the ICL in no way undermines the importance and significance of the role played by the ICL in these proceedings. The Court is extremely grateful for the expert input by both the ICL and the ICL’s very experienced counsel, to which the parties had the benefit of input as to an objective identification of what is in the best interests of the children.
The Court is confident that the input of the ICL had a substantial impact in assisting the parties achieve that consensus which is, indeed, in the best interests of the children. It is an extremely important role undertaken by the ICL in every parenting proceedings and the Court greatly appreciates the assistance it has had from the ICL and the very experienced counsel in the present case. However, the Court, having considered the matters under s 117(2A), and in particular the financial circumstances of the parties, declines to make any costs order.
It is for these reasons the Court makes the above orders.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Street. Associate:
Dated: 30 May 2025
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