VORBECK v. AUSTRIA
Inadmissible
André Potocki;Angelika Nußberger;Erik Møse;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer
1. The applicant, Mr Friedrich Vorbeck, is an Austrian national who was born in 1964 and lives in Vienna. He is represented before the Court by Mr G. Beneder, a lawyer practising in Vienna. 2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant and his former wife, I.M., are the parents of B.M., who was born in 2000 in wedlock. From 10 June 2002 the parents lived in separate households and B.M. lived together with her mother. The parents, however, continued to share custody. On 18 June 2003 I.M. applied for sole custody of B.M. On 22 October 2004 the applicant and I.M. concluded an agreement before the Purkersdorf District Court under which sole custody of B.M. was awarded to I.M. 5. On 27 September 2005 the applicant and I.M. divorced. 6. On 4 December 2007 the applicant and I.M. concluded a court settlement concerning the contact rights of the applicant in respect of B.M. 7. On 7 October 2010 the applicant applied for joint custody over B.M. and requested I.M. to agree to this application. However, I.M. disapproved of the applicant’s application for joint custody as there were ongoing disputes between the parents. The applicant, on the other hand, stated that he wished to be involved in B.M.’s life and to be included in decisions concerning her education, medical issues and other matters. 8. On 21 December 2010 the District Court heard the applicant, I.M. and B.M.; at the end of the hearing the applicant and I.M. confirmed that they would continue to adhere to the settlement of 22 October 2004 concerning the contact rights of the applicant. 9. On 16 February 2011 the District Court, having held a further hearing in the course of which the applicant, I.M. and B.M. were examined again, dismissed the applicant’s application for joint custody. It based this decision on Article 177a of the Civil Code, under which joint custody is only possible in the event of both parents consenting. The applicant requested the court to apply to the Constitutional Court for review of the constitutionality of this provision, but the District Court held that a court of first instance did not have the authority to lodge such an application. 10. The applicant appealed, arguing that Article 177a of the Civil Code was unconstitutional and in violation of his Convention rights; he also asked the Regional Court to request the Constitutional Court for review of the constitutionality of this provision. 11. On 27 April 2011 the St. Pölten Regional Court rejected the applicant’s request for an application to the Constitutional Court for judicial review in respect of Articles 177 and 177a of the Civil Code, as the Regional Court had no concerns regarding the constitutionality of these provisions. Referring explicitly to the Court’s judgment in the case of Sporer v. Austria (no. 35637/03, 3 February 2011), the Regional Court found that the present case must be distinguished from Sporer. Under Articles 177 and 177a of the Civil Code, which applied in the present case, parents had joint custody of their child. If after divorce one parent were to ask for sole custody then the court, taking into account the well-being of the child, had to transfer custody to one of the parents. By contrast, Article 166 of the Civil Code, which was at issue in Sporer, provided that custody of a child born out of wedlock was from the very beginning to be granted only to the mother of that child. Given that in the event of the termination of joint custody after divorce or following an agreement between the parents, the law did not grant either of the parents a privileged position as regards the award of sole custody, there was no indication that this was discriminatory. If one were to follow the reasoning of the applicant that it should be possible to simply request the re-establishment of joint custody at any moment following a final court decision lifting joint custody or an agreement of the parents to that effect, the binding force of decisions whereby joint custody had been lifted would be rendered meaningless, which was in contradiction to the principle of legal certainty (Rechtskraft). 12. The Regional Court observed furthermore that the first-instance court had not made any findings as to the ability of the parents to find compromise (Konsensfähigkeit) indispensable for the meaningful exercise of joint custody. From the content of the case file and in particular the expert reports submitted, it could, however, be deduced that at the time of the termination of joint custody, the parents lacked this ability, and there was no indication in the file that the situation had improved in the meantime. In such a situation it was not in the interest of the well-being of a child that once joint custody had been granted, every single issue on which parents did not agree – such as which school a child should attend – had to be determined by decision of the District Court. 13. On 20 May 2011 the applicant lodged an ordinary appeal (ordentlicher Revisionsrekurs) against the Regional Court’s decision of 27 April 2011 and asked the Supreme Court to apply to the Constitutional Court for review of the constitutionality of Articles 177 and 177a of the Civil Code. 14. On 30 August 2011 the Supreme Court rejected the applicant’s appeal as inadmissible. The ruling was served on the applicant’s counsel on 29 September 2011. The Supreme Court found that if custody of a child had been granted to one parent, either by a court decision or by agreement between the parents, then in the interest of consistency of education (Erziehungskontinuität) a change of the person having custody could only be granted if there existed a risk to the well-being of the child. It was not decisive whether the circumstances of one parent were better than those of the other. The Supreme Court noted that in his application for joint custody the applicant had not even made the argument that circumstances had changed since the decision on custody of the District Court of 22 October 2004 had become final, and he had not given any other reasons (as required by Article 176 of the Civil Code) to justify a different ruling. The mere presupposition that joint custody exercised by both parents might be better for the well-being of the child was not a sufficient justification for interfering with a binding decision. Furthermore, the ability and intention of both parents to share their responsibility is an indispensable precondition for joint custody. It could be clearly seen from the case file that there was no agreement between the parents regarding the issue of joint custody and that no coordinated action when exercising joint custody could therefore be expected from them. 15. Following the 2013 amendment to the Civil Code (see para. 17 below), on 18 February 2013 the applicant lodged an application for joint custody of B.M. However, on 28 January 2014, he withdrew this application. 16. Articles 177 and 177a of the Civil Code, as in force at the material time read as follows: “(1) If the marriage of the parents of a minor legitimate child is dissolved or annulled, the custodial rights of both parents remain intact. However, they may present an agreement to the court – even modifying an existing agreement – regarding custodial responsibility. In this connection it may be agreed that one parent alone or both parents shall have custody. Where both parents have custodial powers, those of one parent may be limited to specific matters. (2) Where both parents have custody, they must submit an agreement to the court regarding the parent with whom the child is to stay primarily. This parent must always be put in charge of all custodial matters. (3) The court must approve the agreement of the parents if it serves the interests of the child.” “(1) If an agreement under Article 177 on the main domicile of the child or on custodial powers is not reached within a reasonable period after a marriage is dissolved or annulled, or if [such an agreement] is incompatible with the interests of the child, the court must decide which parent shall henceforth have sole custody, if all attempts to reach an amicable solution fail. (2) If both parents have custody under Article 177 after their marriage has been dissolved or annulled, and if one parent applies for the withdrawal of that custody, the court must decide which parent shall have sole custody, if all attempts to reach an amicable solution fail.”  17. It is noted, however, that on 1 February 2013 the relevant provisions of the Austrian Civil Code were amended significantly. The relevant sections read as follows: “(1) If the marriage or the common household of the parents is dissolved, joint custody is maintained. They can, however, conclude an agreement before a court under which one parent is entrusted with sole custody, or the custody of one parent is limited to certain matters. (2) In the case that both parents have joint custody after the dissolution of their marriage or the common household, [the parents] have to conclude an agreement before a court regarding in whose household the child will predominantly be cared for.” “(1) Provided that it is in the best interests of the child, the court has to decide on the provisional regulation of parental responsibility (“the phase of provisional parental responsibility”), if 1. after the dissolution of the marriage or the common household the parents cannot concur on an agreement, pursuant to section 179, within a reasonable time limit, or 2. one parent applies for sole custody or his/her participation in custodial rights. ... (2) After [the phase of provisional responsibility, which lasts six months], the court has to take a final decision on custody (on the basis of what transpired during the phase of provisional parental responsibility) – including payment of statutory maintenance – [which is in the best interests of the child.] ... If the court awards joint custody, it also has to decide in whose household the child will predominantly be cared for.”