Cases about arbitrary interference with family (2)

G v Australia (HRC, 2017)

Remedy's assessment: Unremedied

Ms G is a transgender woman. She changed her name on her birth certificate and had her driver’s license, Medicare card and credit cards reissued in her new name and successfully applied for a passport in her new name and gender. She married a woman, and subsequently underwent gender affirmation surgery.

Because Australia does not permit same-sex marriage, it will not change the gender on the birth certificate of someone who is married. The same restriction does not apply to other identity documents, such as passports.

Ms G’s birth certificate states that she was born male, but presents and identifies female. It thereby reveals private information about the fact that she is transgender and is a violation of her right to privacy (art 17).

Requiring Ms G to divorce in order to obtain a birth certificate that correctly identifies her gender is arbitrary interference with her right to family (art 17).

Further, “by denying transgender persons who are married a birth certificate that correctly identifies their sex, in contrast to unmarried transgender and non-transgender persons, the government is failing to afford the author and similarly situated individuals equal protection under the law”. The HRC found Ms G experienced discrimination on the basis of her marital status and her transgender identity (art 26).

Australia must make “full reparation” to Ms G, including providing her with a birth certificate consistent with her sex. Australia must also prevent similar violations in the future by revising its legislation to comply with the Covenant.

Read more on G v Australia.

Zoltowski v Australia (HRC, 2015)

Remedy's assessment: Unremedied

Mr Zoltowski is a Polish-Australian who moved to Australia with his wife and their 2-year-old son. After nearly 3 years, the family returned to Poland, with the intention of permanent relocation. However, Mrs Zoltowski soon changed her mind, and took the boy to Australia without his father’s consent. The couple divorced, with Polish courts granting sole custody of the child to his father, and the Family Court of Western Australia granting sole custody to his mother.

Mr Zoltowski applied under the Hague Convention on Civil Aspects of International Child Abduction for the return of his son to Poland. Eighteen months later, when his first application was unsuccessful, he applied under the Hague Convention for access and custody. The WA Family Court 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 and violation of the right of families and children to protection. Also, Australia’s failure to deal expeditiously with Mr Zoltowski’s custody and access applications amount to a violation of his rights concerning fair hearings. An effective remedy would include ensuring regular contact between father and son and compensation for the violations of their rights. Australia must also act to prevent similar violations recurring.

Read more on Zoltowski v Australia.