Zoltowski v Australia, HRC, Communication No 2279/2013, UN Doc CCPR/C/115/D/2279/2013 (7 December 2015)
The UN Human Rights Committee (‘Committee’) decision in Zoltowski v Australia established that a State party is required to allow contact between family members during family law proceedings. A failure to do so can amount to arbitrary interference with the family in violation of articles 17(1), 23(1) and 24(1) of the International Covenant on Civil and Political Rights (‘Covenant’). Further, the decision confirmed that a failure to deal expeditiously with a family law matter, without providing some ‘provisional access scheme’, can amount to a violation of the fair hearing provision in article 14(1) of the Covenant. An exception to these findings is if the failure to adopt such measures is in the best interests of the child.
Arkadiusz Zoltowski is a Polish and Australian national. He married a Belarusian national, Nikita Zoltowski. The coupled lived in Poland and had a child who is both an Australian and Polish citizen. The family lived in Australia between December 2006 and October 2009, during which time the mother became an Australian citizen. Upon returning to Poland, the mother expressed a desire to return to Australia and threatened to ‘take their son away to a place where [his father] would not find him’. As a result of this threat, the father hid the son’s passport. In February 2010, the relationship broke down and the father initiated divorce and child custody proceedings.
In March 2010, the mother filed for an emergency passport with the Australian embassy for the son, citing family violence. The passport was granted without the father’s consent and despite the embassy being aware of ongoing divorce and custody proceedings. On 31 March 2010, the mother and son flew to Australia without the father’s consent.
In August 2010, the Polish circuit court assigned sole custody of the son to the father. Meanwhile, on 21 April 2010, the Family Court of Western Australia (‘Family Court’) issued an interim order for the son to live with the mother. On 18 June 2010, the father filed an application for return under the Hague Convention on the Civil Aspects of International Child Abduction. On 4 February 2011, the Family Court ordered that the son be returned to Poland in accordance with the Hague Convention. On 16 February 2011, the mother appealed the decision of the Family Court. On 8 July 2011, the Full Court of the Family Court overturned the lower court’s decision and held that the Australian authority should not have accepted the application to return a child who was a permanent resident of Australia. The father’s application to appeal to the High Court was denied. In May 2014, the Family Court granted the mother sole custody and granted the father supervised access to his son.
The current decision concerns a communication by the father to the Committee arguing that Australia breached its obligations under articles 14(1), 17, 23 and 24 of the Covenant.
The Committee considered that Australia had breached articles 14(1), 17, 23 and 24 of the Covenant. The Committee considered that Australia’s failure to allow contact between the son and father after the son’s removal from Poland amounted to arbitrary interference with the father’s family in violation of article 17(1) of the Covenant. In the absence of any explanation by Australia, as to how the failure to provide access to his son was based on the best interests of the child, this was also a breach of article 23(1) and 24(1). Further, Australia’s failure to deal expeditiously with the father’s access applications, or provide some other ‘provisional access scheme’, amounted to a violation of the fair hearing provision under article 14(1) of the Covenant.
Family law matters are always emotionally charged but when they occur across jurisdictions there is an added level of complexity, a high likelihood of conflicting court orders (as occurred here) and scope for international bodies to be drawn into the debate. It is not hard to imagine how distressing this case must have been for the parties. The Committee appeared concerned that Australia’s failure to facilitate regular family contact exacerbated the emotional impact of the proceedings. As the Committee stated, Australia “is obligated, inter alia, to ensure regular contact between the father and his son and to provide adequate compensation to the [father]. [Australia] is also under an obligation to prevent similar violations in the future.” Australia has a positive obligation to facilitate personal relations and regular contact between family members.
As a result of this decision Australia should make structural and policy changes to ensure this type of violation does not happen again. That said, it is not clear from the case what such policy changes would entail. The Committee suggested Australia could have implemented a ‘provisional access scheme’. However, the Committee does not state what such a scheme would involve. While it appears the Committee made a correct and persuasive finding they provide limited practical guidance. Therefore, it appears up to Australia to determine how to comply with the Committee’s orders. Compliance could involve: supervised visits during court cases, utilising technology to allow long distance calls or having a fast track system to grant interim contact orders.
The case also raises the issue of balancing both the desire to support family contact whilst also protecting the child. Allegations of family violence were not fully explored in this case, however it appears that concern for a child’s safety would override the duty to facilitate family contact. This is an area that may require further consideration by the Committee.
The full text of the decision can be found here.
Elise Rutherfurd is a Seasonal Clerk at King & Wood Mallesons.