Communicated on 30 June 2014
FIRST SECTION
Application no. 67656/12
Richard THOR
against Austria
lodged on 12 October 2012
STATEMENT OF FACTS
The applicant, Mr Richard Thor, is an Austrian national, who was born in 1971 and lives in Tulln. He is represented before the Court by Mr. W. Kunert, a lawyer practising in Stockerau.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant and G.T. are the parents of E.T., born on 13 October 2005 out of wedlock. The parents got married on 12 May 2006. On 9 December 2010 G.T. applied for sole custody for E.T. and announced that she planned a divorce. She noted that the child’s best interest was not guaranteed if she stayed with the applicant. The mother then moved out of the flat together with E.T. The parents got divorced on 17 February 2011. After the divorce the parents maintained joint custody over their child.
On 25 February 2011 the applicant requested to award him sole custody of the minor. He argued that the mother tried to alienate the child from him and she actually failed to fulfil her parental duties.
On 8 September 2011 G.T. again referred to her application for sole custody and argued that she met factual difficulties when both parents held joint custody.
On 29 December 2011 the Tulln District Court awarded G.T. sole custody and based this decision on the recommendation of a psychological expert opinion. Moreover, the court referred to the fact that E.T. was living with his mother. The court held that it was not possible to maintain joint custody after a divorce if the parents do not agree on it. According to the Austrian law, the courts therefore had to award sole custody to one of the parents once the parents did not agree on joint custody anymore.
On 15 February 2012 the St. Pölten Regional Court dismissed the applicant’s appeal and upheld the reasoning of the Tulln District Court. It held in particular that there was no indication for a risk of the child’s best interest if the mother held sole custody. The court 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 and that the transfer of custody rights was only possible in case the child’s best interest was at risk. The court noted moreover that the present case was not comparable with the case of Sporer v Austria since E.T. had been born in wedlock and the parents had held joint custody in the past.
On 25 April 2012 the Supreme Court rejected the applicant’s extraordinary appeal since it did not raise any important questions of law.
B. Relevant domestic law
The relevant provisions of the Civil Code in force at the material time are set out in the Court’s judgments in the case of Sporer v. Austria (no. 35637/03, §§ 37-38, 3 February 2011).
It is noted, however, that the relevant provisions of the Austrian Civil Code on 1 February 2013 were amended significantly. The relevant sections read as follows:
Section 179 of the Civil Code
Custody after dissolution of the marriage and the common household
(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, according to which one parent is entrusted with sole custody, or the custody of one parent is limited to certain matters.
(2) In the case of joint custody of both parents after the dissolution of the marriage or the common household, they have to conclude an agreement before a court, whose household the child will predominantly be cared for.
Section 180 of the Civil Code
Change of Custody
(1) Provided that it is in the best interest of the child, the court has to decide on a provisional regulation of parental responsibility (phase of provisional parental responsibility), if
1. after the dissolution of the marriage or the common household the parents cannot agree 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 that period [of six months], the court has to take a final decision on custody on the basis of the experiences during the phase of provisional parental responsibility, including the payment of the statutory maintenance and according to the best interest of the child. ... If the court awards joint custody, it also has to decide, whose household the child will predominantly be cared for.
COMPLAINTS
1. The applicant complained under Article 8 of the Convention about the fact that the domestic courts had to award sole custody to one of the parents once they did not agree on joint custody anymore, and that it hence was not possible to maintain joint custody in such a situation, even if it were in the best interest of the child.
2. Under Article 14 of the Convention in conjunction with Article 8 the applicant complained that he had been discriminated on grounds of his gender concerning the possibility to be awarded sole custody over a child after a divorce.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s right to respect for his family life within the meaning of Article 8 § 1 of the Convention?
If so, was that interference in accordance with the law and necessary pursuant to Article 8 § 2, in the light of the legal situation at that time which stipulated that if one parent applied for sole custody after a divorce, joint custody could not be maintained, even if it were in the best interest of the child?
2. Has the applicant suffered discrimination on the ground of his legal position contrary to Article 14 of the Convention read in conjunction with Article 8?
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