Objectivity Over Objections: The Court Stands by the Children's Lawyer in Holinski Family Dispute

Introduction

In the emotionally fraught terrain of parenting disputes, courts often appoint Independent Children’s Lawyers (ICLs) to represent the interests of the most vulnerable parties: the children. Holinski & Holinski [2025] FedCFamC1F 143 is a significant decision that reaffirms the responsibilities and limits of the ICL’s role, especially amid accusations of bias and failure. Justice Riethmuller was asked to rule on two critical applications from the father: the discharge of the ICL and a request for a second round of family therapy. Both were denied, with the court strongly defending the independence and procedural fairness of the ICL's conduct.

Facts and Issues

Key Facts:

• The parties, Ms and Mr Holinski, are parents of two children, L (15) and N (12).
• They divorced in 2014, with prior final orders in 2016 granting parenting time to both.
• In November 2022, contact between the children and the father ceased.
• The father alleged parental alienation and sought to:

1. Discharge the ICL.
2. Recommence family therapy with a therapist of his choosing.

• The ICL was appointed on 3 July 2023 and had since interacted with both children and reviewed therapy outcomes.
• A therapist reported no confidence that further sessions would succeed, fearing worsening rejection of the father.

Legal Issues:

1. Whether the ICL should be discharged for alleged bias, incompetence, or lack of objectivity.
2. Whether appointing a new therapist for a second attempt at family therapy would be in the children’s best interests.

Application of Law

1. Discharging the ICL

The father relied on the grounds identified in Lloyd & Lloyd and Child Representative (2000) FLC 93-045, arguing that the ICL:

• Acted contrary to the children’s best interests,
• Was professionally incompetent,
• Demonstrated partiality.

Justice Riethmuller applied ss 68L and 68LA of the *Family Law Act 1975 (Cth), emphasizing that the ICL's role is not to be the child’s legal representative, but rather an independent advocate for their best interests. The judge clarified that ICLs are not required to act on the child’s wishes nor bound by parental alignment, provided their actions are rooted in evidence.

“There is nothing on the material to indicate that the ICL was in any way incompetent nor lacking in professional objectivity.”

Moreover, citing Knibbs & Knibbs [2009] FamCA 840, Murphy J’s view was upheld: an ICL must argue “firmly and fearlessly” for what they believe is in the child’s best interests.

The court rejected the father's attempt to impose the judicial standard of apprehended bias on the ICL, instead adopting the test from Gratton & Gratton (No 3) [2014] FamCA 839, which focuses on whether a fair-minded observer would believe that justice requires the legal practitioner’s removal.

“It is not a matter for a litigant to micromanage the ICL…” — Leroux & Leroux [2015] FamCA 1128 at [218]

2. Application for New Family Therapy

The court was unconvinced that further therapy was appropriate. No evidence suggested:

• The nominated therapist was willing to conduct sessions,
• That therapy would have a real prospect of success.

On the contrary, existing evidence indicated such efforts could harm the children by reinforcing resistance. As per para [28], the previous therapist explicitly warned of the emotional risk:

“I am not confident that any further therapeutic input would at this stage have any efficacy.”

The court concluded there was insufficient basis to impose another potentially distressing process on the children.

Analysis of the Judgment

Justice Riethmuller meticulously weighed the statutory duties under the Family Law Act against the real-world evidence presented by the father. He underscored:

• The ICL’s duty to proactively form views based on child interviews and evidence.
• The importance of transparency in communication, which the ICL maintained through written correspondence and case summaries shared with both parties.

Rejecting the father’s suggestion of bias, the judge aligned with scholarly opinion (e.g. Cormac Moriarty’s 2025 article) and judicial precedent to assert that active engagement is essential to the ICL’s mandate—not indicative of bias.

“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.”

This reasoning demonstrates a shift in judicial attitude toward safeguarding the function and authority of ICLs amidst increasingly adversarial parenting litigation.

Take-Home Lessons

• For Parents: Challenges to the ICL’s impartiality must meet a high bar and cannot rest on disagreement with their position. Courts trust ICLs to form independent, evidence-based views—even if these differ from parental narratives.
• For Lawyers: Advocacy for children requires robust engagement and communication, not judicial neutrality. Transparency and consistent documentation are crucial.
• For Courts: The ICL’s role is vital in reducing harm to children through early resolution strategies and reality-checking litigant expectations.