THOR v. AUSTRIA
Inadmissible
André Potocki;Angelika Nußberger;Erik Møse;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer
1. The applicant, Mr Richard Thor, is a Swedish national who was born in 1971 and lived in Tulln. He is represented before the Court by Mr W. Kunert, a lawyer practising in Stockerau. 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. The Swedish Government did not make use of their right to intervene under Article 36 § 1 of the Convention. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant and G.T. are the parents of E.T., born on 13 October 2005 out of wedlock. The parents were married on 12 May 2006 and E.T. thereby acquired the status of having been born in wedlock with both parents having joint custody of him. On 9 December 2010 G.T. applied to the Tulln District Court for sole custody of E.T. and announced that she was planning a divorce. She stated that the child’s best interests would not be guaranteed if she stayed with the applicant. G.T. then moved out of the flat, together with E.T. The parents were divorced on 17 February 2011. After the divorce the parents maintained joint custody of their child, even though E.T. was living with his mother. 5. On 25 February 2011 the applicant lodged an application seeking that he be awarded sole custody of E.T. He argued that G.T. tried to alienate the child from him and that she actually failed to fulfil her parental duties. On 28 February 2011 the District Court appointed an expert in respect of the question of custody. 6. On 18 May 2011 the expert submitted her report. She concluded that, provided that adequate contact between E.T. and the applicant was ensured, it was in the interests of the well-being of E.T. that custody of him be awarded to G.T. In the event that the court were to grant joint custody, the principal residence of E.T. should be with his mother. 7. On 10 June 2011 the applicant and G.T. reached an agreement on the applicant’s contact rights in respect of E.T. before the District Court. That agreement was modified on 1 September 2011. 8. On 8 September 2011 G.T. reiterated her application for sole custody, stating that the applicant avoided any communication with her and that she could not see how – given this fact – joint custody was practicable or feasible. 9. On 29 December 2011 the District Court awarded G.T. sole custody and based this decision on the recommendation of a psychological expert. Moreover, the court referred to the fact that E.T., who was living with his mother, had stated that he wished to continue to do so and had shown a strong emotional link to her. The District Court furthermore noted that the applicant had not respected the agreement on contact rights and had on various occasions visited E.T. at his kindergarten – conduct which could increase the psychological strain on E.T. and could entail a risk to the wellbeing of the child if joint custody were to be maintained. Since it was not possible under Article 177a of the Civil Code to maintain joint custody after a divorce if the parents did not agree on it the court had to award sole custody, which, for the reasons set out above, had to be granted to G.T. 10. On 11 January 2012 the applicant appealed. He argued that the proceedings had been defective because an additional expert report should have been ordered. He furthermore argued that Article 177a of the Civil Code was unconstitutional and in violation of his Convention rights and asked the Regional Court to apply to the Constitutional Court for judicial review of the constitutionality of this provision. 11. On 15 February 2012 the St. Pölten Regional Court dismissed the applicant’s appeal and upheld the reasoning of the District Court. It held in particular that there was no indication of a risk to the child’s best interests if G.T. were to hold sole custody of E.T. The applicant had not submitted sufficient reasons for custody not to be granted to G.T., as the mere fact that she was assisted in caring for E.T. by her mother and the fact that E.T. was having difficulties in adapting to his new kindergarten did not cast any doubt on the capacity of G.T. to care for E.T. In so far as the applicant made further allegations of misconduct on the part of the mother without offering any evidence, such allegations were not sufficient to necessitate the supplementing of the expert report in the file. The court furthermore held that there were no concerns in terms of constitutional law regarding the fact that it was not possible to maintain joint custody after a divorce if the parents did not agree on it; thus, it held that the transfer of custody rights was only possible in the event that the child’s best interests were at risk. The court noted, moreover, that the present case was not comparable with the case of Sporer v Austria (no. 35637/03, 3 February 2011), since E.T. had been born in wedlock and the parents had held joint custody in the past. In such a case neither of the parents held a privileged position as regards the award of custody, and Article 177 of the Civil Code was therefore not discriminatory. In any event there was no room for dismissing the application for sole custody lodged by G.T., as the applicant himself had also lodged an application for sole custody and the court therefore had to decide. 12. On 25 April 2012 the Supreme Court rejected the applicant’s extraordinary appeal since it did not raise any important questions of law. Moreover, the Supreme Court found that the Court’s judgment in the case of Sporer v Austria had to be distinguished from the present case because the underlying facts were fundamentally different. Sporer had concerned custody of a child born out of wedlock (in which case Article 176 of the Civil Code did not provide for joint custody but granted sole custody of the child to the mother); in the present case, E.T. had been born in wedlock, so the parents had initially had joint custody, but that arrangement had failed and as a consequence the courts had had to grant sole custody to one of the parents. That decision was served on the applicant on 18 May 2012. 13. Following the 2013 amendment to the Civil Code, which entered into force on 1 February 2013, the applicant did not lodge an application for joint custody of E.T. According to a statement by the local youth office (Jugendamt) of 17 July 2013, the applicant no longer availed himself of his right to visit E.T. as he had moved to Russia on an unspecified date. 14. Article 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 in accordance with 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 it 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.” 15. The relevant provisions of the Austrian Civil Code were amended significantly on 1 February 2013. 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.”