Holinski & Holinski

Case [2025] FedCFamC1F 143

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 &…

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AGLC
Holinski & Holinski [2025] FedCFamC1F 143
Case
[2025] FedCFamC1F 143
Decision Date

CaseChat Overview and Summary

The matter of Holinski & Holinski was before Riethmuller J in the Federal Circuit and Family Court of Australia. The father sought the discharge of the Independent Children's Lawyer (ICL) appointed on 3 July 2023 and orders for a second attempt at family therapy with a therapist he had nominated. The applicant and respondent have two children, L and N, 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. The father filed an Amended Response seeking the above orders, and further orders for both parents and the children to participate in therapy with a nominated therapist, and for the ICL to be relieved of her duties and replaced with another ICL.

The court was required to determine whether the ICL should be discharged on the grounds of incompetence, lack of professional objectivity, or breach of fiduciary duty. Additionally, the court had to decide whether a second attempt at family therapy was in the children’s best interests, considering the evidence presented. Riethmuller J found that there was no evidence pointing to incompetence, lack of professional objectivity, or breach of fiduciary duty on the part of the ICL. The court also concluded that there was no evidence to suggest that a second attempt at family therapy would be successful, given the children's strong resist/refuse dynamic with the father. Therefore, the application to discharge the ICL and the application to appoint a further family therapist were dismissed.

The court dismissed the application to discharge the ICL and the application to appoint a further family therapist. The orders reflect that the application to discharge the ICL is dismissed and the application to appoint a further family therapist is dismissed. The form of the order is subject to the entry in the Court’s records. The court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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