AUSTRIA – HABSBURG -1996

AUSTRIA – HABSBURG -1996 (1997) (Return denied on appeal) HABSBURG v DONATH. Mother took the child to Austria. The lower court denied the return. The father appealed, the appeal was denied.

Habsburg v Donath (Austria 1996)27 OB 35/97s
8 International Abduction [AUSTRIA 1997]
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REPUBLIC OF AUSTRIA

Habsburg vs Donath
12 Feb 1997

001 The Supreme Court of Appeal. through the President of
the Bench of the Supreme Court of Appeal Dr. Warta,
Chairman, and Supreme Court of Appeal Judges Drs.
Nlederreiter, Schaich, Tittell and I., as judges in the case
of the curatorship involving the minor Julian Lorenz
Habsburg-Lothringen, born on May 29; 1994 in regard to the
appeal by the father Carlos Felipe Hapsburg-Lothringen, of
692 Richmond, Montreal, P.Q. HSJ 2R9, Canada, represented by
Dr. H. Peter Drexier and other attorneys in Vienna, of the
decision of the Provincial Civil Court in Vienna, sitting as
a Court of Appeal and dated November 28, 1996, GZ 43 R
1O15/96z-29 in which the decision of the District Court of
Vienna of September 30, 1996, GZ 3 P 1 72/96h-24, was
confirmed, has reached the following decision: The appeal
is not allowed.

Reasons

002 The child’s mother 18 an Austrian citizen, while the
father is a citizen of Mexico and Austria. They were married
an June 20, 1994 in Montreal, where they both resided
thereafter. According to the information provided by the
father In his petition for divorce, the spouses have been
living apart since June 1995. The divorce proceedings
introduced by the father on December 7, 1995 in Montreal are
still pending. On December 15, 1995 the mother obtained the
interim order cited in part below from the Superior Court in
Quebec to be in effect until that case was decided: “Custody
of Julian is given to the mother, Martina Donath. The
father is allowed visitation rights every weekend, from
Friday at 6 p.m. to Sunday at 6 p.m., on condition that the
father’s passport remains in his attorney’s possession and
this circumstance is confirmed to the mother’s attorney, and
a copy of the application of the father’s application for a
new Austrian passport together with his sworn statement that
he had lost his current Austrian passport, will be given to
the mother’s attorney within 4 days of this order being
issued. The father has the child starting today, at 6
o’clock. Both parties are ordered not to leave the province
of Quebec with the child.”

003 The mother left Canada with the child in early July
1998 and applied on July 18, 1996 to the court of the first
instance for sole custody of the child. She has lived in
Austria since that time. Based on the decision of the
Superior Court in Quebec issued on July 18, 1996, which gave
him sole custody of the minor child and ordered the mother
to return the child to him, on August 1, 1998, the father
applied for the return of a wrongfully removed child under
the Hague Convention on the Civil Aspects of International
Child Abduction, BGBL 1988/5112, (hereinafter called HCA).
Although he had been allowed weekend visitation rights and
the mother had been ordered not to leave Quebec with the
child, she had endangered the child’s well-being by moving
to Austria On July 25, 1996, a warrant for her arrest was
issued by the relevant court in Quebec.

004 The mother contested the father’s claim for the return
of the child based on the Child Abduction Convention: Since
at the time she took up residence In Austria, she had
(temporary) sole custody by decision Of the Canadian court,
the conditions for wrongful retention under Article 3 of the
HCA were not present. She was forced to return to her
homeland because the father had locked her out of their
apartment, had not paid adequate support for her and the
child and no longer paid for their health insurance and her
visa had expired. At the time of her return to Austria, the
father had only been given visitation rights. In his
petition for divorce, he had indicated that he had lived
apart from the mother since June 1995. Since that time, the
father had… (photocopy illegible)… forced to take up
separate residence with the child. Return of the child to
Canada would be associated with serious physical or
psychological harm to the child. The father is
psychologically disturbed and has not agreed to treatment in
unhappy moods, he indulges in alcohol. The expert opinion
used as the basis of the Canadian custody decision in favor
of the father is absolutely inconclusive. Instead of a
psychological examination, there should have been a
psychiatric one. It is suspected that the father has
sexually abused the child. The father has also physically
attacked the mother. Although the mother had no opportunity
to work in Canada, the father asked her for money to pay his
attorney’s fees.

005 The court of the first instance rejected the father’s
request for the return of the minor child Julian. It
considered the mother’s claims to be credible. It was true
that the mother had illegally taken the child from Canada to
Austria and in so doing, made it impossIble for the father
to exercise his visitation rights. However, return of the
child as claimed by the father would be associated with the
risk of serious mental and physical harm to the child
because it would separate him from his mother, who was the
main person to whom he related at that time.

006 The Appeals Court confirmed this ruling in the decision
under appeal. It stated rejection of the appeal was correct.
There was a “wrongful removal or retention” in the meaning
of Article 3 of the HCA only if there had first been a
violation of custody rights, with the non-abducting parent
“robbed” of the actual execution of their custody rights by
the removal. The combining of the prerequisites in the text
of the Convention makes it clear that both conditions must
be present cumulatively. Who is entitled to custody of the
minor Juilan is decided accordIng to the law of the previous
residence, thus according to the law of the province of
Quebec. Under this law, at the time of her departure for
Austria, the mother had sole custody of the minor child
Juilan on the basis of December 15, 1995 decision by the
Canadian court with jurisdiction. This decision does not
give the father any right to determine where the child
resides. The right legally protected by the HCA in the
interest of the child in this context is not the abstract
right to reside in the “state of origin~ from which the
child had been removed but solely the custody right of the
parent violated by the removal. The HCA Is intended only to
protect certain specific legal situations characterized by
interference with custody rights. Accordingly, granting of
visitation rights does not give the parent in question the
right to file an application under the Convention. The
prohibition that the Canadian Court imposed on the mother
against leaving Quebec gives the father no legal status that
is protected by the Convention. The violation committed by
the mother did not interfere with parental custody and
therefore no violation of the Convention could be claimed.
What is decisive is the situation at the “time of the
abduction”. Since custody of the child was granted to the
father only after the mother and child had moved, it is not
a change in the legal situation that is significant for
application of the HCA. Retention of the child in violation
of the Convention does not occur if it is a later court
decision that is violated. For this reason, there Is no need
to consider in the meaning of Art. 13(b) of the HCA whether
the child faced a serious risk of physical or psychological
harm by being returned to the father.

007 The appeal of this decision by the father is not
justified.

008 Article 3 of the Hague Convention of October 25, 1980
on the Civil Aspects of International Child Abduction, BGB
512/1988, reads:

“The removal or the retention of a child is to be considered
wrongful where –

a. it Is in breach of rights of custody attributed to a
person, an institution or any other body, either jointly or
alone, under the law of the State in which the child was
habitually resident immediately before the removal or
retention;

and

b. at the time of removal or retention those rights were
actually exercised, either jointly or alone, or would have
been so exercised but for the removal or retention.”

009 The Appeals Court was correct In concluding that the
linking together of these prerequisites by the word “and”
allows only the interpretation that both prerequisites must
be present (cf. Palandt BGH, Appendix to EGBGH Art 24 Rz. 65
mwN). In interpreting the Convention and thus the concept of
“custody”, there should be a uniform understanding by all
countries, based on the goal expressed in Article 1 of the
HCA (cf. Palandt op.cit. Rz 61) The Convention seeks to
ensure respect for custody or access rights in a contracting
state. A change in where the child resides should not
worsen the legal position of the person granted custody or
access. While custody is covered by Article 3 of the HCA,
the right to personal access is treated in Article 21 of the
HCA. The provision is not to be understood as including
repatriation measures as in Article 3. The condition for
applying Article 3 of the Convention is therefore a
violation of an actually exercised custody or joint custody
right. When the parents separate, this condition is
generally met only by the parent with whom the child lives.
The exercise of the mere access right is not sufficient (cf.
Palandt, Op. cit. Rz.65). A joint custody right must at
least include the authority to determine where the child
lives. In interpreting the sentence in the interim order of
the Canadian court of December 15, 1995, stating that “both
parties are ordered not to leave the province of Quebec with
the ChIld”, the appeals court is correct in saying that the
term in Article 3 of the HCA requires definition, because it
would otherwise result in an undesirable limitless
application of this convention to interests that could not
be more concretely defined.

010 In the February 5, 1992 case (2 Ob. 596/91) on which
the decision of the Supreme Court to Appeal is based, a
mother had been forbidden by an English Court to travel
abroad with the chIldren without the written consent of
their father. The Supreme Court of Appeal expressed the
view that through this right to give consent, the father had
been given some voice in decisions about the children’s
whereabouts and as a result enjoyed a kind of joint custody.
Such a conclusion cannot be drawn from the formulation used
by the Canadian court in its interim order, however.
Although the prohibition by the Canadian Court was obviously
intended to prevent a change in the legal position of the
child by having him moved to another country before the
custody proceedings were completed, in its wording it does
not restrict the custody rights of the mother (through the
limited right granted to the father) in the sense of ArticLe
3 of the HCA. The mother’s action was forbidden in the
meaning of the Canadian court order but not wrongful in the
sense of Article 3 of HCA.

011 The Appeals Court correctly explained that after a
non-wrongful removal of the child to another country, any
change in the custody decision made in the earlier place of
residence is inconsequential because the custody or joint
custody right must have already existed at the time of
“abduction” (cf. Pinung op.cit. Rz643)

012 It was therefore proper to turn down the appeal.

Supreme Court of Appeal
Vienna, February 12, 1997
Dr. Warta
for the accuracy of this version,
Director of the Department: (signed)

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WMH Notes.
Date: 27 Nov 1997

While this decision is technically correct, in that no
specific right of custody was reserved to the father, it is
taking a rather narrow view of The Convention which is
contra to the general broad interpretaion that is given in
like circumstances.

Other courts have held that the mere existence of a court
action is sufficient to vest the court with a “right of
custody” during the pendency of the proceedings and hence
any removal from the jurisdiction of the court of first
instance would be a “wrongful removal”.

That this interpretation is the better reasoned is seen by
the language of The Convention and indeed of this case: The
purpose of The Convention is to prevent the removal of a
child so as to frustrate issue of custody and/or access.

This court should have followed the general trend and
complied with the generally prevailing rule of international
law.