What happened?
Both parents share joint custody of their 10-year-old child, with the primary care provided in the mother’s household. The relationship between the parents has been highly contentious for several years, particularly regarding the scope and arrangements of visitation rights. Most recently, visitation rights allowed the father contact every other weekend from Friday to Sunday. The father then applied for an extension of these rights, while the mother applied for a suspension of visitation arrangements.
During the first-instance proceedings, the father agreed to the suspension, stating he had no other choice. The first-instance court consequently suspended the father’s personal visitation rights by order and obligated him to attend parental counseling. The father was also required to provide the court with proof of starting the counseling and submit progress reports every two months. The court justified its decision by stating that the suspension was in the child’s best interests and that professional support would emphasize the need to address the situation.
After the decision became final, the father informed the first-instance court, in response to its request for confirmation of counseling attendance, that he would not participate in the counseling as he no longer intended to maintain direct or indirect contact with his son. As a result, the court imposed a fine of EUR 250 for failing to comply with the court’s order.
The father appealed, withdrawing all his applications for visitation rights and contesting the fine’s amount. However, the appellate court rejected his appeal, reasoning that, considering the circumstances, personal contact that serves the child’s best interests can be enforced against the parent’s will, if necessary. The father’s decision to abstain from contact was not a valid reason for non-compliance with the court’s order.
The father subsequently filed an extraordinary appeal to the Austrian Supreme Court (OGH).
How did the Supreme Court decide?
The OGH allowed the father’s appeal and explained that while a child’s right to contact with a parent can generally be established and enforced against the parent’s will, enforcement is only permissible in exceptional cases. Measures such as mandatory parental counseling can only be ordered in connection with custody or visitation proceedings. If the parent in question explicitly declares that they do not wish to have further contact with their child, and there is no application for the child’s visitation rights to be enforced, the court order loses its purpose and can no longer be enforced through coercive measures.
Consequently, the challenged decision was overturned, and the fine was rescinded.
(OGH Decision 5 Ob 100/23a, dated July 4, 2023)
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