Communicated on 30 June 2014
FIRST SECTION
Application no. 11332/12
Friedrich VORBECK
against Austria
lodged on 17 February 2012
STATEMENT OF FACTS
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.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant and his former wife, I.M., are the parents of B.M., born 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 over B.M. On 22 October 2004 the Purkersdorf District Court with the consent of both parents awarded I.M. sole custody over B.M.
On 27 September 2005 the applicant and I.M. divorced.
On 7 October 2010 the applicant applied for joint custody over B.M. and requested I.M. to agree on this application. However, I.M. disapproved of the applicant’s request for joint custody as there were ongoing disputes between the parents. The applicant, on the other hand, claimed that he wished to be involved in B.M.’s life and to be included in decisions concerning her education, medical issues and other events.
After having held an oral hearing, during which the applicant, I.M. and B.M. were questioned, the District Court dismissed the applicant’s application for joint custody on 16 February 2011 and based this decision on Section 177a of the Civil Code according to which joint custody is only possible in the case of consent of the parents.
The applicant appealed and argued that this provision was unconstitutional and in violation of the applicant’s Convention rights. Moreover, he requested the Court of Appeal to introduce a procedure for the judicial review of the provision by the Constitutional Court.
On 27 April 2011 the St. Pölten Regional Court rejected the applicant’s request for judicial review by the Constitutional Court of the Sections 177 and 177a of the Civil Code as the court had no concerns, bearing in mind the case-law of the Constitutional Court and the European Court of Human Rights. Moreover it dismissed the applicant’s appeal and upheld the reasoning of the Purkersdorf District Court.
On 30 August 2011, served on the applicant’s counsel on 29 September 2011, the Supreme Court rejected the applicant’s appeal and found that the applicant had not even argued that the situation had changed since sole custody had been awarded to the mother or that the child’s best interest would improve in case of joint custody. Moreover the Supreme Court referred to the fact that joint custody was only possible in case of mutual consent by the parents.
B. Relevant domestic law
The relevant provisions of the Civil Code in the version 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.
COMPLAINT
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.
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?
2. If so, was that interference in accordance with the law and necessary pursuant to Article 8 § 2, in the light of the legal situation in force at the time which stipulated that a parent of a child born in wedlock, who lost or gave up joint custody, only could regain it if the other parent consented, even if joint custody were in the best interest of the child?
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