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