FIDLER v. AUSTRIA
Inadmissible
Nicolas Bratza
The applicant, born in 1956, is an Austrian national residing in Vienna. In the proceedings before the Court he is represented by Mr. Bruckschwaiger, a lawyer practising in Vienna. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the father of two children, who were born out of wedlock in 1986 and 1988, respectively. On 27 January 1992 the Office for Youth and Family (Amt für Jugend und Familie), acting on behalf of the applicant’s children, filed a request with the Favoriten District Court (Bezirksgericht) that the monthly amount of maintenance to be paid by the applicant be raised from Austrian schillings (ATS) 2,500 to ATS 3,300 per child as of 1 January 1992. The applicant made a number of submissions opposing this request. On 19 October 1992 the applicant requested that the monthly amount of maintenance be reduced to ATS 1,000 per child as of 1 November 1992. He also requested legal aid. Subsequently, he requested that the amount be reduced to ATS 700 per child. On 8 March 1993 the applicant requested that he be released from his maintenance obligations for January to March 1993. According to the Government the applicant was heard in an informal manner on 5 February 1993. According to the applicant no such informal questioning took place. He submits that on that date he only handed in documents relating to his legal aid request. On 26 April 1993 the Favoriten District Court decided that the applicant had to pay ATS 3,300 in monthly maintenance per child for 1992. It reserved its decision as regards 1993, noting that further examination was necessary. On 11 May 1993 the applicant filed an appeal. He submitted that the District Court had disregarded his submissions and had failed to hear him. In particular, it had failed to take into account that, following his separation from the mother of his children, he had moved to an apartment which he had to renovate. The costs for this renovation had to be deducted from his income when calculating his maintenance obligations. Further, transport costs for reaching his work place, a newspaper publisher, which could during night shifts only be reached by taxi, also had to be deducted. On 29 June 1993 the Vienna Regional Civil Court (Landesgericht für Zivil-rechtssachen) quashed the District Court’s decision and referred the case back to it. The Regional Court noted that, according to constant case-law, necessary costs for acquiring and furnishing an apartment had to be taken into account in calculating maintenance obligations, if one parent, upon separation, had left the common apartment and its furniture to the other parent and the children. It appeared from the file that the applicant and the mother of his children had lived together until February 1991. The applicant’s submissions that, subsequently, he had moved to another apartment which he had to renovate, thus, needed to be examined. In this respect the Regional Court ordered the District Court to hear the applicant in person and to request him to submit documentary evidence in support of his submissions. Further, it ordered the District Court to establish whether the applicant was unable to reach his workplace by public transport and, if so, what extra costs he incurred. On 30 August 1993 the District Court ordered the applicant to submit the said evidence. On 1 October 1993 the applicant handed in documents including, inter alia, the tenancy agreement relating to the apartment at issue. According to the Government he was informally questioned by a court clerk (Rechtspfleger) on that occasion. The applicant submits that no such questioning took place. On 18 November 1993 the District Court heard the mother of the children and the applicant’s father as witnesses. According to the Government the latter was heard at the applicant’s request. The applicant submits that his father was heard at the request of the children’s mother. On 19 November 1993 the District Court appointed Mr. H. as expert and ordered him to file an opinion as regards the monthly income the applicant could have achieved as of 1 January 1993. On 28 January 1994 the expert submitted his opinion, whereupon the District Court on 1 February 1994 requested to applicant to make comments, which he submitted on 10 March 1994. On 8 March and again on 29 March 1994 the Vienna Regional Civil Court dismissed the applicant’s applications for a time-limit to be set for the District Court’s decision (Fristsetzungsanträge). It noted that, according to the file, the District Court had not yet heard the applicant on the question whether he had to acquire and to furnish an apartment following his separation from the mother of the children concerned and as to the costs incurred. The Regional Court also noted the applicant’s submissions that he had on 1 October 1993 handed in the required documents and had been heard by a court clerk. However, there were no minutes in the file. In any case, such an informal hearing could not serve as a basis for establishing the relevant facts and could, therefore, not substitute a formal hearing. The applicant should in fact have applied for a time-limit to be set for his being summoned to a hearing. As this hearing was necessary for the examination of the case, the matter was not yet ready for decision. Thus, his requests for a time-limit to be set for the taking of a decision could not be granted. In any case, the Regional Court noted that, in view of the duration of the proceedings, the District Court was called upon to summon the applicant speedily to a hearing and to give a decision without further delay. On 13 October 1994 the District Court issued a new decision. It upheld its decision of 26 April 1993 as regards the applicant’s maintenance obligations for 1992 and further ordered him to pay varying amounts of maintenance for 1993 and the first trimester of 1994 as well as from 1 April 1994 onwards. All these amounts exceeded the monthly amount of ATS 2,500 per child which the applicant had had to pay previously. The District Court noted that it based its findings relating to the applicant’s actual or potential income on the file, the submissions of the parties and the expert opinion. The children’s maintenance claims had to be calculated as a certain percentage of the applicant’s income. It dismissed the applicant’s submissions that the costs for renovating his apartment had to be deducted from his income. In this respect the Court relied on the statements of the witnesses heard, namely the children’s mother and the applicant’s father, whom it considered to be credible. It noted that, according to them, the apartment in which the applicant was now living, had been transferred to the applicant’s mother upon her divorce from his father. It had been fully equipped and had not necessitated renovation. Moreover, the applicant had already used this apartment since 1988. As regards his income for 1992, when he had worked at a newspaper publisher, the District Court accepted that an amount of ATS 1,000 per month had to be deducted as extraordinary transport costs for reaching his workplace.  Finally, the District Court, referring to the Regional Court’s decision of 29 June 1993, which had ordered it to hear the applicant and to request further documentary evidence, noted that the applicant had presented himself in court and had, after discussion of the factual and legal issues of the case, handed in the required documents. On 31 October 1994 the applicant filed an appeal. He complained in particular that the District Court had failed to summon or hear him. Further, he contested, in general terms, the credibility of the witnesses heard by the Court. He claimed he had lived with the mother of his children until February 1991. Following their separation he had moved to his present apartment, which had been in an extremely bad state, not even having the necessary sanitary equipment, and he was thus bound to carry out considerable renovation works. On 20 December 1994 the Vienna Regional Civil Court, sitting in camera in the absence of the applicant, partly upheld his appeal. It confirmed the applicant’s maintenance obligations for 1992, but reduced his maintenance obligations for 1993 and the first trimester of 1994 on the ground that he had been either on sick leave or unemployed during this period and had taken up new employment within a reasonable time. His maintenance obligations, thus, could not be based on the potential income established by the expert, but had to be based on the amount of the social security benefits he actually received. Further, the Court confirmed the applicant’s maintenance obligations for April to July 1994, but quashed the decision as regards maintenance from 1 August 1994 onwards and referred the case back to the District Court as the applicant had again become unemployed in July 1994. The Regional Court dismissed the remainder of the applicant’s appeal. It recalled that costs for acquiring and furnishing an apartment had to be taken into account in calculating maintenance obligations, if one parent, upon separation, had left the common apartment and its furniture to the other parent and the children. The Regional Court found in particular that, according to the results of the second set of proceedings, the applicant had not acquired his present apartment following his separation from the mother of his children. His father had rented the apartment in 1964, had transferred it to the applicant’s mother in 1970 in the course of divorce proceedings and the latter had assigned her rights to the applicant who had the apartment at his disposal at least as of 1988. Costs for the renovation of an apartment which became periodically necessary were, according to the case-law, not deductible from income for the purpose of calculating maintenance obligations. In the present case, the costs for the renovation of the apartment had not been caused exclusively by the applicant’s separation from the mother of his children and by his leaving the common household. As the applicant no longer claimed that he had only acquired the apartment subsequently to this separation, it was not necessary to hear him as regards the costs of renovating the apartment at issue. Moreover, he had presented himself at the District Court and had submitted documentary evidence. In connection with the other results of the proceedings, this evidence formed a sufficient basis for the decision. On 7 February 1995 the applicant filed an appeal on points of law. He complained in particular that the District Court had, despite explicit orders of the Regional Court, failed to summon or hear him and that the Regional Court had arbitrarily ignored its earlier decisions when dismissing his appeal. On 27 February 1995 the Supreme Court (Oberster Gerichtshof) rejected the applicant’s appeal on points of law, finding that it did not raise any important legal issue within the meaning of S. 14 § 1 of the Non-Contentious Proceedings Act (Ausserstreitgesetz). In further proceedings, the applicant requested on 2 July 1996 that his maintenance obligations be reduced retroactively as of 1 July 1993 to ATS 700 monthly per child. Later, he requested further reductions. He invoked again the costs of renovating his apartment, as well as a change in his financial situation. In a first decision of 3 March 1997 the Favoriten District Court fixed the applicant’s maintenance obligations as of 1 November 1996. On 3 November 1997 the Favoriten District Court changed its decision and reduced the applicant’s maintenance obligations as fixed by the decisions of 20 December 1994 and 3 March 1997 for July 1993 onwards. The amounts fixed for the different periods varied according to the applicant’s financial situation. Further, without giving any specific reasons, the court found that an amount of ATS 2,200 per month for renovating the applicant’s apartment had to be deducted from his income when calculating his maintenance obligations. It does not appear from the file whether these proceedings are still pending.