HECKL v. AUSTRIA
Inadmissible
Nicolas Bratza
The applicant is an Austrian national, born in 1956 and living in Traun. He is represented before the Court by Mr. Günter Tews, a lawyer practising in Linz. A. The applicant is the father of two daughters, born in wedlock in 1984 and 1991, respectively. On 14 February 1995 the Linz-Land District Court (Bezirksgericht) granted the petition of the applicant and his wife for divorce by consent. In the settlement regulating the legal consequences of the divorce, the applicant and his wife agreed that the latter would exercise sole custody over their daughters. They further agreed to settle the applicant's right of access out of court. The settlement was subject to approval in separate custody proceedings. In these subsequent custody proceedings the applicant requested that sole custody for both children be awarded to him. On 3 May 1996 the Linz-Land District Court refused to approve the above settlement as regards the question of custody. It awarded sole custody over the elder daughter, Melanie, to the applicant, while sole custody over the younger daughter, Tanja, was awarded to his divorced wife. The Court noted that twelve-year-old Melanie already lived with the applicant, while five-year old Tanja continued to live with her mother. As there had not been compliance with the above settlement, the court was called upon to decide under section 177 § 2 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) for each child which parent should have sole custody. In accordance with section 177 § 1 the solution depended exclusively on the well-being of the child. Referring to the written and oral submissions of the parties and to the expert opinion of a child psychiatrist, the court found that Melanie was well cared for by her father. There were no reasons not to respect her choice, all the more so as her mother had accepted the situation. However, there were no weighty reasons to transfer custody of five-year-old Tanja to the applicant. Finally, the expert had found that the separation of the children which followed from the above solution was not detrimental. Given their difference in age, the court did not see any objections either. The applicant did not appeal against this decision. B. Relevant domestic law and practice Award of custody over children upon divorce or separation Section 177 of the Civil Code provides as follows: “(1) In the event that the marriage of the parents of a minor born in wedlock is dissolved or declared null and void, or that the parents have lived separately for more than a limited period, they may submit an agreement to the court stating which one of them will exercise sole custody over the child in the future. The court has to approve the agreement if it corresponds to the interests of the child's well-being. (2) If no agreement is reached within a reasonable time or if the agreement does not correspond to the interests of the child's well-being, the court has to decide which parent should have the right to sole custody in the future. In case the parents have lived separately for more than a limited period the court only decides upon the request of one of them. (3) Section 167 applies accordingly.” Section 167 of the Civil Code provides, for children born out of wedlock, that the court may award joint custody to the parents upon their common request if they permanently live in a common household with the child and if such a ruling is not disadvantageous to the child's well-being. In a judgment of 10 October 1995, the Constitutional Court ruled on the constitutionality of section 177 of the Civil Code. It noted the Supreme Court's constant case-law according to which section 177 excluded an award of joint custody to both parents in case of divorce, except in the rare case when they continued to live together with the child in a common household. As to Article 8 of the Convention, it found that the award of sole custody after divorce to one parent was an interference with the other parent's right to respect for his or her family life, which was justified under the second paragraph of this Article. Given the legislator's margin of appreciation it was to be considered necessary for the protection of the rights of others. In particular, it was proportionate, as the parent not having custody retained a number of rights, such as the right of access and the right to be informed and heard as regards certain important matters. Moreover, the law did not prevent parents, who wished to share their parental rights after divorce, from doing so in practice. As to Article 5 of Protocol No. 7, the Constitutional Court found that this provision did not prevent the legislator from creating different legal positions for spouses after divorce as long as such differences were not based on gender only. It did not generally demand that joint custody be awarded to parents after divorce. Rights of the parent not having custody According to section 148 of the Civil Code the parent not having custody has a right of access. Moreover, according to section 178 of the Civil Code, the parent not having custody has the right to be informed by the other parent about certain measures listed in section 154 §§ 2 and 3 (which in cases of joint custody require the agreement of both parents) and has the right to be heard within a reasonable time. The submissions of the non-custodial parent are to be taken into account if the wishes expressed therein better serve the interests of the child's well-being. The measures at issue include the change of the child's first or family name, the entry into or secession from a church or other religious group, the child's placement into care, the acquisition or renunciation of a particular nationality, the early termination of an apprenticeship or employment contract, the recognition of paternity of a child born out of wedlock, as well as certain important provisions concerning the child's property.