Holinski & Holinski
[2025] FedCFamC1F 143
•5 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Holinski & Holinski [2025] FedCFamC1F 143
File number(s): PAC 2634 of 2023 Judgment of: RIETHMULLER J Date of judgment: 5 March 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to discharge Independent Children’s Lawyer – Where respondent argues Independent Children’s Lawyer failed to independently assess the children’s best interests, acted incompetently and lacked professional objectivity – Where no evidence pointed to incompetence, lack of professional objectivity or breach of fiduciary duty on behalf of Independent Children’s Lawyer – Independent Children’s Lawyers can form a preliminary view after review of the evidence – Application dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Application to appoint family therapist – Where respondent wishes to engage in further family therapy for second time – Where children refuse to spend time with respondent – Parental alienation – Where there is no evidence further family therapy would be successful – Application dismissed.
Legislation: Family Law Act 1975 (Cth) ss 68L(2), 68LA Cases cited: Grattan & Grattan (No 3) [2014] FamCA 839
Horner & Horner [2018] FamCA 487
Knibbs & Knibbs [2009] FamCA 840
Leroux & Leroux (Independent Children's Lawyer) [2015] FamCA 1128
Lim & Zong [2021] FamCAFC 165
Lloyd & Lloyd and Child Representative (2000) FLC 93-045
Moriarty, Cormac, “Rethinking the Test for Bias in Family Law Proceedings” (2025) 99 Australian Law Journal 269
Division: Division 1 First Instance Number of paragraphs: 30 Date of hearing: 20 February 2025 Place: Sydney Solicitor for the Applicant: Ms Speirs, Bell Lawyers Respondent: Mr Holinski (Litigant in person) Counsel for the Independent Children's Lawyer: Mr Duc Solicitor for the Independent Children's Lawyer: Legal Aid NSW
Table of Corrections 22 April 2025 In paragraph 23, the number “269” has been inserted in the citation between the words “journal” and “that” as the full citation was unavailable at the time the judgment was delivered. ORDERS
PAC 2634 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HOLINSKI
Applicant
AND: MR HOLINSKI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
5 MARCH 2025
THE COURT ORDERS THAT:
1.The application to discharge the Independent Children’s Lawyer is dismissed.
2.The application to appoint a further family therapist is 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 the pseudonym Holinski & Holinski has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
The respondent father seeks interlocutory orders discharging the Independent Children’s Lawyer (“ICL”) appointed on 3 July 2023 and orders for a second attempt at family therapy with a therapist he has nominated.
BACKGROUND
The applicant and respondent have two children, L (born in 2010) and N (born in 2012), aged 15 and 12. The parties separated on 11 January 2013, were divorced by early 2014, and final orders were made on 22 January 2016. The children spent time with the father in accordance with those orders until November 2022.
On 31 October 2024, the mother filed an Amended Application seeking that the orders of 22 January 2016 be discharged, that the children live with her, she be given sole decision-making responsibility for all major long-term issues and the children spend time with the father in accordance with their wishes.
On 4 February 2025, the father filed an Amended Response seeking the following orders
1.Both parents and the children shall participate in therapy with [Ms S]. For the purpose of this Order: (a) the therapy is to assist the courts in a Final Hearing in establishing if this matter is ‘justified estrangement’ or ‘unjustified estrangement’ by the children; (b) such therapy shall be reportable; (c) each parent is to comply with all reasonable recommendations made by [Ms S], including accepting and complying with any referrals to other services for the parents and/or the children; (d) the parents shall each bear the costs associated with their own attendance at therapy and shall share equally any costs associated with the children’s attendance.
2.That [the ICL] is relieved of her duty as the Independent Children’s Lawyer and replaced with another Independent Children's Lawyer appointed by the courts.
On the hearing of the application, the family report that was prepared on 13 March 2024 was tendered (forming Exhibit 1), which provides necessary context for the application. The family report writer identified:
14. In November 2022, time between [Mr Holinski] and the children ceased.
15. [Mr Holinski] filed a Contravention Application on 10 January 2023.
16.Interim Orders made by Senior Judicial Registrar best on 8 June 2023 provided for the children to live with [Ms Holinski], spend supervised time at a contact centre with [Mr Holinski] each alternate Saturday for a period of 3 hours, and that the parties attend reportable family therapy with [Dr T].
17.The Independent Children’s Lawyer, Legal Aid, was appointed as per Orders dated 3 July 2023.
18.Orders dated 9 August 2023 noted that two attempts at supervised time between [Mr Holinski] and the children had occurred, however [Mr Holinski] did not have contact with the children on either occasion. The same Orders note that both parents had completed an initial family therapy session with [Dr T]. Both parents reported they had not heard back from [Dr T] to organise further sessions. Neither parent followed this up.
…
92.The crux of the parenting dispute relates to the children’s time with [Mr Holinski], and the arrangements moving forward that ensure the children’s need for safety and security, balanced with the benefit of having a meaningful relationship with their father. This matter holds complexity due to the allegations of ongoing emotional abuse, the children’s strong resist/refuse dynamic with the father, and the fractured relationship between the parents.
93.Both parents presented with rigid conviction in their positions and beliefs, and will likely require consistency and support for genuine shifts to occur in their identified areas of parental vulnerability.
…
110.The children are currently spending no time with [Mr Holinski]. Both parents recognised the need for a reunification / family therapy process to support any recommencement of time. The current resist/refuse dynamic present in the children is untenable ongoing and may contribute to a number of negative outcomes. It is prudent to consider how they can safely re-establish and maintain a relationship with [Mr Holinski], without exacerbating their distress or strengthening their current schema of their father.
…
119.That a restorative family process be attempted with an experienced mental health practitioner in the area of separation, aiming to create opportunities for repair and improved relationships in a child focused manner (not necessarily a resumption of time arrangements although this may occur). That all family members attend (individually, subunits and/or as a family) as organised by that practitioner. It is recommended that either there is a single practitioner providing the therapy or if others engaged, that each practitioner ensures collaboration so as to avoid splitting and/or potential for negative advocacy in the treatment team.
In support of the interlocutory applications, the father relied upon two affidavits, one by himself and one by the paternal grandfather. The affidavits set out their respective recollections of a conversation with the ICL on 26 August 2024 at the courts, where they say that: the ICL accepted that the case was one of “parental alienation”; that there was nothing the ICL could do; and that she would be seeking a trial date (see: the father’s affidavit filed 4 February 2025 at [7] and the paternal grandfather’s affidavit filed 18 February 2025 at [6]).
Shortly before this conversation, a family therapist had provided a letter to the parents following an attempt at family therapy, saying:
I have interviewed the children separately and together. The rupture in their relationship with [Mr Holinski], paternal grandparents and aunt is deep. [L] and [N] reported to me at the last interview that they had seen their paternal uncle, aunt and cousins on their recent visit from New Zealand which they had enjoyed.
…
I am not confidant that any further therapeutic input would at this stage have any efficacy. Rather I see it will harden the children's resolve to reject [Mr Holinski]. As difficult as it is for [Mr Holinski] to accept the level of rejection he is facing, and that the disconnection from the paternal family is a loss not only for [Mr Holinski], but his family and the children. Given the children’s ages, their articulated views and the proceedings which are afoot, [Mr Holinski] may have no option but to accept their views and wait until their have the autonomy and maturity to reinitiate contact with him hopefully at some time in the future.
(Father’s Affidavit filed 4 February 2025, Annexure A)
Following the father’s conversation with the ICL, the ICL met with the children again on 11 November 2024. Later that day, the ICL sent an email to the father saying:
I appreciate the court appearance today would have been very difficult. I do not ordinarily meet with parents to discuss matters, but I am certainly happy to confirm with you in writing that in view of the strained relationship between you and the children (accepting that this may have been caused as a result of many factors including the mother and her attitude towards supporting your relationship with the children) given their ages, the failed therapeutic intervention and the children stoic refusal to spend time with you, the only orders that I can support on a final basis are the following:
•The children live with the mother
•That the children spend time with you in accordance with their wishes
•That the mother provide the children with current mobile telephone number and email address and the children be at liberty to contact you as per their wishes
•That you forward the children by express post to the residential address cards and gifts for every special occasion (ie: birthdays, Christmas and Easter).
I trust the information contained herein will assist you in relation to the formulation of your Response.
Please note that as the ICL, I communicate with parties in a transparent manner, and this includes copying the solicitors for the mother herewith.
Finally, please note that the above orders will formulate my position in the Court at the final hearing.
(Father’s Affidavit filed 4 February 2025, Annexure C)
During argument on this application, the father accepted that family therapy was unlikely to be efficacious.
Application to discharge the Independent Children’s Lawyer
The ICL was appointed pursuant to s 68L(2) of the Family Law Act 1975 (Cth), which relevantly provides:
68L Court order for independent representation of child’s interests
…
(2)If it appears to the court that the child’s interests in the proceedings ought to be independently represented by a lawyer, the court:
(a) may order that the child’s interests in the proceedings are to be independently represented by a lawyer; and
(b) may make such other orders as it considers necessary to secure that independent representation of the child’s interests.
The duties of the ICL are outlined in s 68LA of the Family Law Act, including:
68LA Role of independent children’s lawyer
…
General nature of role of independent children’s lawyer
(2) The independent children’s lawyer must:
(a)form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and
(b)act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child.
(3)The independent children’s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.
(4) The independent children’s lawyer:
(a)is not the child’s legal representative; and
(b)is not obliged to act on the child’s instructions in relation to the proceedings.
Specific duties of the independent children’s lawyer
(5) The independent children’s lawyer must:
(a) act impartially in dealings with the parties to the proceedings; and
(b)ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and
(c)if a report or other document that relates to the child is to be used in the proceedings:
(i)analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and
(ii)ensure that those matters are properly drawn to the court’s attention; and
(d)endeavour to minimise the trauma to the child associated with the proceedings; and
(e)facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.
An incident of the power to appoint an ICL is the power to discharge an ICL (see: Horner & Horner [2018] FamCA 487; Lim & Zong [2021] FamCAFC 165 at [17]), thus there is power to discharge the ICL.
In Lloyd & Lloyd and Child Representative (2000) FLC 93-045, Holden CJ listed circumstances likely to form a basis for discharging an ICL, saying (at [11]):
(i) if there is evidence that the separate representative had, in any way, acted contrary to the children's interests;
(ii) if there is evidence before the Court that the separate representative had acted incompetently in a professional sense;
(iii) if it is apparent that the separate representative has demonstrated a lack of professional objectivity; or
(iv) if to continue to act would involve a breach of a fiduciary duty or a conflict of interest.
On the material available, it could not be said that the ICL was acting contrary to the children’s best interests by pressing for a hearing. The fact that the ICL is not supportive of the father’s application for a change of residence is unsurprising given the age of the eldest child and the strong views of the children.
Whilst it is ultimately for the Court to determine the children’s best interests, the proposal by the ICL is reasonably open on the material currently before the Court.
The father questions the ICL’s competence on the basis that he claims the children have been alienated from him, and therefore, are continuing to suffer emotional harm. This has not yet been established at a hearing, nor is it the only reasonable view open on the evidence. It is also quite possible that the children have become estranged from the father due to his conduct, and it is also possible that the estrangement is a mixture of the conduct of the mother and father. Most significantly, even on the father’s best case, an order to change the care arrangements of the children, when they are entrenched in their position to the father (despite attempts at family therapy), runs a significant risk of harming the children. There is nothing on the material to indicate that the ICL was in any way incompetent nor lacking in professional objectivity.
There is nothing that suggests a breach of any fiduciary duty or other conflict of interest.
Argument was also raised as to whether the case was one of apprehended bias. The solicitor for the mother submitted that the test for apprehended bias that is applicable to judges would apply to ICLs. It cannot be the case that an ICL should be constrained by the requirements suitable for decision-makers where the ICL is not the decision-maker in the case and where the ICL is expected to advocate for and act upon the children’s best interests. For an ICL to properly fulfil their obligations to the children, they will necessarily come into conflict with one, if not both of the parents, just as the ICL in this case has a view different to that of the father. The impartiality referred to in s 68LA must be read as a requirement that the ICL form their own views on a real assessment of the material. To read this requirement otherwise would prevent the ICL from fulfilling their obligations.
It is also important to note that the children’s best interests will generally be served by the ICL providing their assessment of the case (after appropriate review of the evidence and interaction with the children) to the parents in order to assist with potential settlement of the dispute and to ensure that the parents are aware of the case the ICL is likely to pursue at the hearing. If an ICL were to sit as silent as the sphinx until the end of a hearing, many children would suffer greater impacts from litigation. Whilst a relevant consideration is the importance of justice being seen to be done; this must necessarily be seen from the perspective of the obligations upon an ICL to actively engage in the proceedings in order to pursue the children’s best interests.
There is nothing to indicate that the ICL’s views are informed by anything other than a careful assessment of the evidence and her meeting with the children. On the evidence in the father’s affidavit, her views were not entirely contrary to the father’s claims. The ICL’s views, as expressed in her email to the parties on 11 November 2024, provides a list of orders that the ICL said she would be prepared to support and that, ultimately, those orders “will formulate [her] position to the Court at the final hearing” (Father’s Affidavit filed 4 February 2025, Annexure C).
It was open to the ICL to form the preliminary view she did after reviewing the evidence and meeting with the children. The ICL’s disagreement with one of the parties during the course of advocating for the best interests of the children only speaks to the nature of family law litigation. It is not an anomaly. It is inevitable that, at times, the view the ICL has taken will be different to that of one or both of the parents. Relevantly, in Knibbs & Knibbs [2009] FamCA 840, Murphy J said (at [43]–[45]):
Once it is understood that the ICL's primary responsibilities and duties as a legal practitioner (albeit a legal practitioner charged with onerous, particular responsibilities) remain essentially the same as all legal practitioners appearing before this court, it can be seen to follow that an ICL is perfectly at liberty to, and probably obliged to, argue firmly and fearlessly for what they contend are findings or results consistent with the best interest of the particular children they represent in their particular circumstances — provided always, of course, that each and every such submission is founded upon evidence properly and adequately put before the court.
Within that rubric, the fact that an ICL has a “view” about a particular matter or issue, does not necessarily bring with it a finding of partiality. Indeed, it is frequently the duty of an ICL to come to a view contrary to that contended for on behalf of a party if, in their proper, considered, professional judgment, the evidence points to such a conclusion.
In those circumstances, submissions of the ICL, and things said by the ICL, will, perhaps almost inevitably, have the appearance of partiality because, frequently enough, the views thus expressed are likely to accord with the position of one of the parents and not the other (although, it needs to be emphasised, that this is, of course, not necessarily so).
(Emphasis added)
As was said by Benjamin J in Leroux & Leroux (Independent Children's Lawyer) [2015] FamCA 1128, “[i]t is not a matter for a litigant to endeavour to micromanage the ICL or critique the ICL with every step he takes” (at [218]), and importantly, that “[t]he ICL is entitled to express preliminary views” (at [223]).
The correct position appears to be that argued by Cormac Moriarty in “Rethinking the Test for Bias in Family Law Proceedings” (2025) 99 Australian Law Journal 269, that the appropriate test is not the test for apprehended bias by decision-makers, but that for preventing a solicitor from acting in a matter, having regard to the unique position of an ICL and the terms of s 68LA. That test, as set out in Grattan & Grattan (No 3) [2014] FamCA 839 at [36]–[37], is an objective test considering whether “a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that the legal practitioner be prevented from acting” (footnotes omitted).
It is important that ICLs provide careful and courageous representation of the children’s interests, who are the most vulnerable in parenting litigation and whose best interests are most commonly served by bringing litigation concerning them to an end as soon as is reasonably practicable. ICLs should not be constrained by principles applicable to decision-makers when carrying out the important part of their role which occurs prior to any final hearing nor be left in trepidation that they will be accused of apprehended bias when carrying out their important role.
I am not persuaded that “a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires” that the ICL be prevented from acting. I therefore dismiss this part of the application.
Application for appointment of a further family therapist
The father seeks orders for the appointment of a family therapist (whom he nominated) for the purpose of a further attempt at family therapy. The application in this regard faces serious difficulties: first, the father has no evidence that the therapist would agree to undertake family therapy, and secondly, there is no evidence that there is any real prospect that family therapy may succeed with the new family therapist.
In a case where family therapy has failed, a contested application for orders that there be a second attempt, which necessarily involves putting children through the process a second time, should ordinarily be supported by evidence that the proposed therapist is prepared to undertake the work in the particular case and that there is a real prospect of benefit to the children. There is no such evidence.
The evidence before the Court is that a family therapist attempted family therapy with the children and declined to continue the process, noting that in her view, it may “harden the children’s resolve to reject” the father (Father’s Affidavit filed 4 February 2025, Annexure A). Even if a further attempt at family therapy did not harden the children’s resolve, there is no basis for concluding that there is a real chance it may succeed (even having regard to the webpage the father provided from the new expert’s website), and thus, the children would potentially be exposed to a further failed intervention by professionals.
I am not persuaded that a further attempt at family therapy is in the children’s best interests on the material currently before the Court.
CONCLUSION
As the father has not been successful on either part of his application, I dismiss the Application in a Proceeding set out in his Amended Response.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 5 March 2025
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