Australia: Zoltowski v Australia (HRC, 2015)

Arkadiusz Zoltowski is a Polish national who lived in Australia on and off for many years, acquiring dual citizenship in 1983. In 2000, he married in Poland and, in 2004, they had a son, born in Poland. Their son is a dual Polish-Australian national and his mother is Belarusian-Australian.

When the boy was 2 years old, the family moved to Perth, Australia, for nearly 3 years. In October 2009, they returned to Poland with the intention of permanent relocation. Their son attended kindergarten and Mrs Zoltowski looked for work. However, Mrs Zoltowski soon expressed the wish to return to Australia. When she threatened to ‘take their son away to a place where [his father] would not find him’, Mr Zoltowski hid the boy’s Australian passport.

In February 2010, Mr Zoltowski filed for divorce and custody of their son. His wife applied for an emergency passport at the Australian embassy in Warsaw, citing domestic violence. On 31 March, Mrs Zoltowski took the boy, aged 5, to Australia without his father’s knowledge or consent. Mr Zoltowski went to the police the next day, who established that Australian embassy staff had driven Mrs Zoltowski and the child to the airport. In April, Mrs Zoltowski applied to the Family Court of Western Australia for custody.

In June 2010, Mr Zoltowski filed an application for the return of his son under the Hague Convention on Civil Aspects of International Child Abduction, to which both Australia and Poland are party. In August, Polish courts granted a divorce and sole custody of the boy to Mr Zoltowski. In February 2011, the Family Court of Western Australia ordered that he be returned to Poland, in accordance with the Hague Convention. His mother appealed. Mr Zoltowski went to Perth to attend a hearing before the full bench of the Family Court, but was neither cross-examined nor permitted to submit evidence. The Family Court’s original decision was overturned, determining that the boy should remain in Australia. Mr Zoltowski’s application to appeal to the High Court was denied. Poland twice requested the boy’s return to Poland and was refused.

In December 2011, Mr Zoltowski applied for access to his son under the Hague Convention. In November 2012, Australia asked him to complete a fresh application. The application was filed with the WA Family Court in July 2013, and in January 2014 it was ‘permanently stayed’, due to custody proceedings initiated by Mr Zoltowski’s ex-wife. In May 2014, the Family Court granted her sole custody and granted Mr Zoltowski supervised access to his son in Australia, two-and-a-half years after he had first applied.

The UN Human Rights Committee found that Australia’s failure to guarantee personal relations and regular contact between Mr Zoltowski and his son constituted arbitrary interference with family life (art 17(1)) and a violation of the right of families and children to protection (arts 23(1) and 24(1)). Also, Australia’s failure to deal expeditiously with Mr Zoltowski’s custody and access applications, or to provide ‘some provisional access scheme’, amount to a violation of art 14(1) concerning fair hearings. An effective remedy would include Australia ensuring regular contact between father and son and compensation for the violations of their rights. Australia must also act to prevent similar violations recurring.

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