How courts could break civil rights in battles over parental access

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A leading lawyer tells consumerwatchfoundation.com about a court ruling which could help people fighting to get contact with their children …


A decision by the UN Human Rights Committee over the case of Zoltowski v Australia has established that a State 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 the International Covenant on Civil and Political Rights.

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 too. An exception to this is if the failure to adopt such measures is in the best interests of the child.

The Story:

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. After a number of court hearings, 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.

Decision:

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.

Thoughts:

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.


By Greg Finlayson, Australian Lawyer

Consumer Watch Foundation

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One thought on “How courts could break civil rights in battles over parental access

  1. UP UNTILL FERUARY 2021 AUSTRALIA STILL HASN’T ANSWERED TO THE UN COMMITTEE TO MY SUBMISSION BELOW:

    Płock/Poland, 20th September 2018

    Office of The United Nations
    Palais De Nations
    CH-12 Geneva
    Switzerland

    Subject: CCPR 2279/2013 Follow-Up to the Views.

    I hereby request for my submission to be considered at the 124th UN Human Rights Session, of the Follow-Up meeting.

    In addition to my previous submissions sent to you via the Petitions Section of the UN HRC on the following dates: 18 Dec. 2017, 23 Feb.2018 and 18 June 2018 , I wish to add the following matters of substance affixed under the capital letters: “A” and “B”.

    A.
    Australia has refused to file into court my recent Hague Convention 1980 application for access & contact with my son. This rejection was unlawful and arbitrary and against the guidance and procedures accepted internationally.
    I wish to recite some of the rules and procedures:

    CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
    (Concluded 25 October 1980)

    Article 21
    “An application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child. The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organising or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject”.
    The above definition is to the contrary of Australia’s argumentation , as to why the State Party Australia has rejected my Hague Convention 1980 application for contact & access filed 0n 24 November 2017.

    The Explanatory Report On The 1980 Hague Child Abduction Convention by Elisa Perez – Vera published by HCCH in 1982 (Annexure #14) defines the following guidelines and practices, as to how these Hague Convention matters shall be proceeded with;

    Art. 126 of Elisa Perez Vera Report says:
    “As we have just pointed out, the article as a whole rests upon co-operation among Central Authorities. A proposal which sought to insert a provision in a new paragraph that both the authorities and the law of the State of the child’s habitual residence should have exclusive jurisdiction in questions of access rights, was rejected by a large majority. The organizing and securing of the actual exercise of access rights was thus always seen by the Convention as an essential function of the Central Authorities. Understood thus, the first paragraph contains two important points: in the first place, the freedom of individuals to apply to the Central Authority of their choice, and secondly the fact that the purpose of the application to the Central Authority can be either the organization of access rights, i.e. their establishment, or the protection of the exercise of previously determined access rights. Now, recourse to legal proceedings will arise very frequently, especially when the application seeks to organize rights which are merely claimed or when their exercise runs up against opposition from the holder of the rights of custody. With this in view, the article’s third paragraph envisages the possibility of Central Authorities initiating or assisting in such proceedings, either directly, or through intermediaries.
    127. The nature of the problems tackled in the second paragraph is very different. Here it is a question of securing the peaceful enjoyment of access rights without endangering custody rights. This provision therefore contains important elements for the attainment of this end. Once again, cooperation among Central Authorities is placed, of necessity, in the very centre of the picture, and it is a co-operation designed as much to promote the exercise of access rights as to guarantee the fulfilment of any conditions to which their exercise may be subject. Of all the specific ways of securing the exercise of access rights, article 21 contains only one, where it points out that the Central Authority must try to remove, as far as possible, all obstacles to the exercise of such rights’, obstacles which may be legal ones or may originate in possible criminal liability. The rest is left up to the co-operation among Central Authorities, which is regarded as the best means of ensuring respect for the conditions imposed upon the exercise of access rights. In fact, such respect is the only means of guaranteeing to the custodian that their exercise will not harm his own rights.
    128. The Convention gives no examples of how Central Authorities are to organize this co-operation so as to secure the ‘innocent’ exercise of access rights, since such examples could have been interpreted restrictively. Mention could however be made purely indicatively as in the Report of the preliminary draft Convention, of the fact that it would be advisable that the child’s name not appear on the passport of the holder of the right of access, whilst in ‘transfrontier’ access cases it would be sensible for the holder of the access rights to give an undertaking to the Central Authority of the child’s habitual residence to return the child on a particular date and to indicate also the places where he intends to stay with the child. A copy of such an undertaking would then be sent to the Central Authority of the habitual residence of the holder of the access rights, as well as to the Central Authority of the State in which he has stated his intention of staying with the child. This would enable the authorities to know the whereabouts of the child at any time and to set in motion proceedings for bringing about its return, as soon as the stated time-limit has expired. Of course, none of the measures could by itself ensure that access rights are exercised properly, but in any event we believe that this Report can go no further: the specific measures which the Central Authorities concerned are able to take will depend on the circumstances of each case and on the capacity to act enjoyed by each Central Authority”.

    Going back to the article 27 of HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION(Concluded 25 October 1980) , it further explains the exceptions of when the Australian Central Authority was not bound to accept nor to proceed with the Hague application;

    Article 27
    “When it is manifest that the requirements of this Convention are not fulfilled or that the application is otherwise not well founded, a Central Authority is not bound to accept the application. In that case, the Central Authority shall forthwith inform the applicant or the Central Authority through which the application was submitted, as the case may be, of its reasons”.

    The Elisa Perez Vera Report clearly outlines the conditions upon which the State Party may reject the Hague application. Australia did not define, that my application fell outside the scope of the Convention nor that it was manifestly without foundation.
    Article 27 — Possible rejection of an application
    137. of Perez Vera Report:” Common sense would indicate that Central Authorities cannot be obliged to accept applications which belong outside the scope of the Convention or are manifestly without foundation. In such cases, the only duty of Central Authorities is to ‘inform forthwith the applicant or the Central Authority through which the application was submitted, as the case may be, of its reasons’. This means that an application may be rejected by the Central Authority to which the applicant applied directly as well as by a Central Authority which was initially brought into the case by another Central Authority.

    State Party Australia, in their motivation for rejecting to file my application into court, thus putting the halt on court or administrative proceedings with my latest Hague application on Child Abduction Convention 1980 for access & contact with my child, have said nothing about my application to be lacking a foundation. It merely gave the reasoning, that I have refused the State Party’s proposition to start a self funded mediation domestically in Australia with my ex-wife. This had not been in a clear “best interest of the child”, nor it adhered to the UN HRC’ rulling CCPR 2279/2013. I have already informed the High Committee of these steps in my submission sent earlier this year, on the 18th June 2018.
    The State Party has again acted in contradiction to the Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction Mediation (Annexure #15) Published by The Hague Conference on Private International Law Permanent Bureau, 6, Scheveningseweg 2517 KT The Hague The Netherlands, 2012

    “38. Not all family conflicts can be solved amicably. This is an obvious point, but it cannot be emphasised enough. Some cases require the intervention of a judicial authority. This may be related to the nature of the conflict, the specific needs of the parties or the specific circumstances of the case, as well as to particular legal requirements. Parties in need of a judicial determination should not be denied access to justice. Precious time can be lost in attempting mediation in cases where one party is clearly not willing to engage in the mediation process or in cases otherwise not suitable for mediation.
    “40. Assessment of cases for suitability for mediation is an essential tool to identify cases of special risk. Potential mediation cases should be screened for the presence of domestic violence, as well as drug and alcohol abuse and other circumstances that may affect the suitability of the case for mediation. Where mediation in a domestic violence case is still considered feasible, necessary safeguards need to be taken to protect the security of those affected. Also, attention needs to be paid to differences in bargaining power, whether due to domestic violence or other circumstances or simply resulting from the personalities of the parties”.
    “46 When mediation is offered to the parties to an international family dispute, they need to be informed that mediation is not their only recourse. Access to judicial proceedings must be available ”.
    “6.1.4 neutrality, independence, impartiality and fairness.
    The general principles of neutrality, independence, impartiality and fairness are indispensible for mediation; they need to be safeguarded”.
    204.” The principles of neutrality, independence, impartiality and fairness are crucial to mediation. They are closely linked although they address different aspects of the mediation process. Mediation should be neutral in relation to the outcome of the process. The mediator needs to be independent as to the way in which he or she conducts mediation. At the same time, the mediator needs to be impartial towards the parties. Finally, the mediation must be conducted fairly. The latter implies that the parties need to be given equal opportunity to participate in the mediation process. The mediation process needs to be adapted in each individual case to allow for balanced bargaining powers. For example, the parties’ wish to use their mother tongue or a language with which they feel comfortable should be respected as far as possible.
    53. Time is crucial in international child abduction cases. The 1980 Hague Child Abduction Convention seeks to ensure the child’s prompt return to the State of his / her habitual residence. It is the purpose of the 1980 Convention to restore the status quo ante the abduction as quickly as possible to lessen the harmful effects of the wrongful removal or retention for the child. The 1980 Convention protects the interests of the child by preventing a parent from gaining advantage through establishing ‘artificial jurisdictional links on an international level, with a view to obtaining ((sole)) custody of a child’.
    54. It has to be emphasized that in abduction cases, time plays on the side of the ‘taking parent’; the longer the child stays in the country of abduction without the underlying family dispute being resolved, the more difficult it becomes to restore the relationship between the child and the left-behind parent . Delay may affect the rights of the left-behind parent, but more importantly it undermines the right of the child concerned to maintain continuing contact with both parents, a right embodied in the UNCRC”.

    The above rights and obligations written in The Guide to Good Practice of Hague Convention 1980 clearly stated in the Convention on The Rights of The Child Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989
    entry into force 2 September 1990, in accordance with article 49

    in the following paragraphs :
    “Preamble
    The States Parties to the present Convention,

    Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,
    Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, …
    Have agreed as follows:
    Article 8
    1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
    2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.
    Article 9
    1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
    3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.
    Article 10
    2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.
    Article 16
    1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.
    2. The child has the right to the protection of the law against such interference or attacks.

    B.
    In relation to Australia’s submission to UN High Committee, in regards to interference into “family life”, interference into “family” ( arbitrary/unlawful child removal from Poland ) and “unfair trial” “protection of the family” and “the rights of the child”;
    The State Party in the paragraph 6 of their submission to UN have stated , that the Polish orders are not expressed to be interim orders, thus suggesting, that it was not known whether the Polish Court custody and divorce orders, which assigned for the child to live with the father in Poland were the final orders. The same manipulation of words was used in a Australia’s domestic custody orders’ “Reason’s for Judgement” issued on 29 January 2014 (par.53 (d),page 16 of the ‘Reasons for Judgement”).
    In relation to the Polish court final order, it was communicated to the Australian Central Authority by the Polish Central Authority in writing on the 29/05/2015, that the mother was represented during the Polish Court proceedings by the independent lawyer, assigned by the Polish court (Annexure # 1).
    It was also definitely communicated to the Australian Central Authority by the Polish Central Authority, that the Polish Court Order issued on 2nd August 2010, was a “Final Court Order”.
    These facts stood before the very first Hague Convention court proceedings in Perth, Western Australia , on 8th November 2010 (Annexure #2).
    The same wording of the court orders being “final”, was clearly visible on the 2nd page of the Polish court order itself, which was forwarded to Australia, additionally in a translated version. It is written on the page two of the Order: “ Judgement final, legally valid and enforceable as of 24.08.2010”(Annexure # 3). The order is signed by three judges, one of whom was the Vice President of the Circuit Court in Plock/Poland.
    The Australian Central Authority in Canberra has ignored the above fact and went ahead with proceeding with their own domestic custody court proceeding, which in fact was a fraud. This scenario is described by Elisa Perez-Vera in The Explanatory Report On The 1980 Hague Child Abduction Convention by Elisa Perez – Vera published by HCCH in 1982 . (Annexure #4)
    Following paragraphs of the above Report are of immense significance to my son’s international abduction:
    “123. The solution contained in this article accords perfectly with the object of the Convention, which is to discourage potential abductors, who will not be able to defend their action by means either of a ‘dead’ decision taken prior to the removal but never put into effect, or of a decision obtained subsequently, which will, in the majority of cases, be vitiated by fraud. Consequently, the competent authority of the requested State will have to regard the application for the child’s return as proof of the fact that a new factor has been introduced which obliges it to reconsider a decision which has not been put into effect, or which was taken on the basis of exorbitant grounds of jurisdiction, or else failed to have regard to the right of all the parties concerned to state their case. Moreover, since the decision on the return of the child is not concerned with the merits of custody rights, the reasons for the decision which may be taken into consideration are limited to those which concern ‘the application of the Convention’. A situation brought about by a decision issued by the authorities of the State of a child’s habitual residence prior to its ‘abduction’ and which granted custody to the ‘abductor’, would normally be resolved by applying article 3 of the Convention, since the existence of a claimed right to custody must be understood in accordance with the law of that State.”

    It is in the evidence, disclosed during the Hague Convention child abduction court proceedings in Australia, to which all of them I flew to, to be in attendance of, that the Australian Embassy in Warsaw in collaboration with the Ministry of Foreign Affairs and Trade in Canberra had secretly exchanged emails with my ex-wife, who was living with me and with our son in Poland, with only one common aim in mind – to assist the mother in international child abduction into Australia and to do a “jurisdiction shopping” . The Australian Government, despite having their own report, whereby they stated: “the child has left Australia permanently to live in another country” (Annexure #5) and despite the Australian Embassy in Poland being informed by the mother, that there is a divorce & custody matter being on foot at the Circuit Court in the city of Plock/Poland since 26 of February 2010, had knowingly violated the international law (art. 5 a, h, i ) of the Vienna Convention of Consular Relations by secretly issuing the mother with the so called “Child Emergency Australian Passport”, thus conclusively aiding and abetting the international child abduction amidst an ongoing divorce & custody proceedings at the Polish court of law (Annexure #6). The child has been a Polish national since birth and the mother has had the “ Polish Permanent Residency Card”. We were married in Poland .
    Taking into account the above facts, the arbitrary/unlawful removal of my 5 year old son from his home in Poland, where he was born and raised and to which he returned from Australia, to again live amongst his immediate and extended family has had happened with intentional collusion and complicity of the State Party Australia.
    The above circumstance was dealt with in The Explanatory Report On The 1980 Hague Child Abduction Convention by Elisa Perez – Vera published by HCCH in 1982 , in its article No 82:

    “82. The second comment relates to the possibility of an ‘institution or any other body’ acting as an ‘abductor’. In this regard, it is difficult to imagine how any body whatever could remove, either by force or by deception, a child from a foreign country to its own land. On the other hand, if a child were entrusted, by virtue of a judicial or administrative decision (i.e. compulsory placement of the child) to such a body in the country of its habitual residence, the parent who sought to obtain the actual enjoyment of custody rights would stand little chance of being able to invoke the provisions of the Convention. In fact, by virtue of the fact that such bodies would as a rule exercise jurisdiction, except as regards the possible recognition of parental authority, such a claim would not come within the scope of the Convention, since custody, in the sense understood by the Convention, would belong to the body in question”.
    Australian Central Authority has had violated article 26 of the ICCPR when the State Party Australia had refused to appeal their Full Court’s decision of not returning my son to Poland , to High Court of Australia.
    All High Court rules were pointing towards the necessity of filing and appeal to High Court (Annexure # 7);
    a) for the two courts ( Family Court of Western Australia and the Full Court )
    b) for the public importance
    c) for justice to prevail

    The Goverment of Australia had conducted the Hague child abduction proceeding at the Full Court sittings in an arbitrary/unlawful way, whereby I was denied to be cross-examined, even though I have requested it through the Central Authority’s Counsel during the court hearing.
    At the start of the Full Court hearing, where I and my adult daughter were in attendance, the Australian Government had predetermined the child abduction matter at the Full Court’s hearing and during the court hearing. Then, the Government had concealed the above arbitrary actions eventuated during the Full Court hearing by manipulating with the Full Court transcripts, for which I have asked and I was made to pay for, over 500 AUD. I was also informed, that my ex wife received the same transcripts free of charge. (Evidence: a) the transcript sent to UN with my original complaint, Annexure #8 the correspondence with the Australian Government/ WA Family Court re. ordered transcripts.)
    When I asked the Government for the court transcripts to be sent to me, I was made to explain, which particular details of interest are to be included in the transcript. I have stated exactly to the Australian Government, that I want the following evidence to be included in the Full Court’ hearing transcript (Evidence attached in Annexure # 8) :
    Below is the correspondence with Australian Government:
    “1. where the Presiding Judge of Full Court , judge May J at the very start of the hearing is saying to my ex
    wife,who represented herself: “don’t worry Ms Zoltowski, we are not going to let anybody take your child
    away from you.”
    2. Also the transcript where Judge Moncrieff J speaks, that my son Nikita did not have and should have, an
    independent lawyer appointed, to represent him in court , and that I the father and my eldest daughter
    Jessica were not cross-examined and we should have been.
    3.Then, the transcript where the state solicitor replies to his honor ,that the father and daughter Jessica are
    present in court and can be cross-examined now. The judges however did not take this opportunity to
    cross-examined”.
    The Full Court’ transcripts came to me in Poland on 14 September 2012 by e-mail, however the requested evidence was not in the transcript. I have quickly protested but my protests were ignored (Annexure #9).
    After the UN HRC had reached a decision against Australia, I have numerously written to the Australian Government asking for a thorough investigation (Federal Police EVIDENCE INCLUDED IN Annexure #10) into the unlawful manipulation with the Full Court’s transcripts. One of my requests was sent to the Parliament of Australia, to the Australian Ombudsman and to the Australian Federal Police. Most of my requests were silenced by the addressee and the reply received from the Australian Federal Police was a simple rejection to conduct an investigation into an alleged federal criminal offence.
    The facts described by me above, which have taken place during and after the Full Court hearing in the matter of my son’s abduction into Australia, and especially the words addressed to child’s mother at the Full Court hearing were extremely inadmissible interference in court’s hearing process in an attempt to determine my son’s international abduction into Australia. This has certainly been a clear indication, that my son’s fate is doomed from the very start of this “ unfair hearing” and the conduct by the Australian Central Authority.
    The Australian Government/Australian Central Authority’s Counsel did not protest against such predetermination of the child abduction matter, which was wrong and unlawful .
    Australian Central Authority was requested and pressed by the Polish Central Authority to file an appeal to High Court of Australia but was refused . My personal requests to file an appeal has limited itself to giving me a legal advice, that I may lodge an appeal to High Court myself – probably hoping – that I will not be able to (Annexure # 11) :
    a) get enough money to pay a lawyer in Australia to prepare such an appeal to High Court,
    b) complete such an appeal to be filed within a statutory limit time
    However , I did manage to do both of the above. However, when the documents were filed into the Family Court of Western Australia for the Chief Judge to allow “ a special leave to appeal”, I was then unexpectedly denied a “special leave to appeal” on the grounds, that I apparently seized to be “ a Party to the proceedings” (Annexure #12).
    Till this day, I do not agree with this decision, because during the initial Hague child abduction court proceedings I was a Party to the proceedings , as the court files show, the court list had my initials on the record, then suddenly I seized to be a Party, when it came to court proceedings before the Full Court.
    Article 26 of ICCPR and article 25 of Convention of 25 October 1980 on the Civil Aspects of International Child Abduction states:

    Article 26 of ICCPR
    “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.
    After and when the Family Court of WA has ruled for my son to be returned to Poland, the mother had appealed this court ruling to the Full Court of Australia , but she had filed the appeal three days past the due date. The State Party nevertheless had allowed the mother the appeal, even though , Australia’s domestic Family Law (Child Abduction Convention) Regulations 1986 states the following:
    ”Arrangements for return of child
    (1) If the responsible Central Authority applies to the court for a return order for a
    child, and the order is made, the responsible Central Authority must coordinate the
    making of the arrangements that are necessary to give effect to the order.
    (2) If:
    (a) a return order for a child is made; and
    (b) within 7 days after the order is made, the responsible Central Authority or
    Article 3 applicant has not been notified that the order has been stayed, the
    child must be returned in accordance with the order”. (Annexures # 13).

    Article 25 of Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: “Nationals of the Contracting States and persons who are habitually resident within those States shall be entitled in matters concerned with the application of this Convention to legal aid and advice in any other Contracting State on the same conditions as if they themselves were nationals of and habitually resident in that State”.
    Explanatory report Elisa Perez Vera – Article 25 — Legal aid and advice .
    Art.133 The relevant provision here enlarges the scope of legal aid in two respects. Firstly, it includes among the possible beneficiaries persons habitually resident in a Contracting State as well as that State’s own nationals. Secondly, the legal aid available is extended to cover legal advice as well, which is not invariably included in the various systems of legal aid operated by State.

    Having the above in mind, my conclusive thoughts are, that I still respectfully insist for the Australian Government to file an appeal to High Court of Australia beyond the statutory limit time in a matter concerning an arbitrary/unlawful child removal (international child abduction) from my parental care and for Australia to conduct a thorough investigation into my son’s international, Government aided child abduction.
    In the meantime, I respectfully insist for the Australian Government to allow and uphold a direct contact & access to be made available to my son and I.

    Arkadiusz Zoltowski – author of the complaint
    and on behalf of my son Nikita Nikodem Zoltowski
    Address: ul.Piekarska 11
    09-404 Płock/Poland
    20.09.2018

    Incl. Annexures listed and numbered 1 till 15.

    List of Annexures:
    #1 – Mother was represented in Circuit Court in Poland at the divorce & custody proceeding.
    #2 – Australian Central Authority acknowledges Polish Circuit Court order but wrongly alleges, that
    the mother wasn’t represented in court.
    #3 – Polish Circuit Court Final Order, as it is stated for it to be final on page 2.
    #4 – Australian Central Authority advices me of not participating in Australian domestic custody
    court proceedings.
    #5 – Australian Government confirms to me in writing, that as per Foreign Affairs Ministry
    Department, my son Nikita had left Australia permanently to live in another country”.”
    #6 – Australian Government admits, that it had granted a “Child Emergency Passport”.
    #7 – High Courts’ of Australia basis upon which the “leave to appeal” can be granted.
    #8 – My specified request to Family Court of Western Australia, for the transcripts to be sent to me.
    #9 – My protest to Family Court, that transcripts have the requested details from the Full Court
    hearing missing.
    #10 – Filing the report to Australian Federal Police to have the child abduction aided by the
    Australian Government and the court transcripts manipulated with.
    #11 – Australian Central Authority refuses to file an appeal to High Court and advices me to file an
    appeal privately.
    #12 – Australian Central Authority reiterates to PCA, that I am not represented by them in Australia.
    #13 – Australian Central Authority’s submissions to Full Court dated 15.02.2011 with regulation 20(2)
    #14 – Explanatory Report on the 1980 Hague Child Abduction Convention by Elisa Pérez-Vera, HCCH
    Publications in 1982 – https://www.hcch.net/en/publications-and-studies/details4/?pid=2779
    #15 – Guide to Good Practice Child Abduction Convention – Mediation, Published by The Hague
    Conference on Private International Law Permanent Bureau –
    https://www.hcch.net/en/publications-and-studies/details4/?pid=6475&dtid=52

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