Višje sodišče v Ljubljani; 2022-09-09; IV Cp 1387/2022
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2022:IV.CP.1387.2022
Date: 2022-09-09
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82022SI0909(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’), concerned temporary measures relating to the care and maintenance of two minor children pending the final determination of parental responsibility.
The mother (hereinafter ‘the plaintiff’) applied to the Court of First Instance for a provisional measure entrusting both children to her care and custody until a final decision was reached, and for an order requiring the father (hereinafter ‘the defendant’) to pay child maintenance of EUR 200 per month for each child. The Court of First Instance stayed the proceedings concerning the main issue, as similar proceedings had already been instituted in Germany, and dismissed the application for preliminary measures.
The plaintiff appealed, alleging procedural irregularities and misapplication of Articles 19 and 20 of the new Brussels II Regulation (1). She argued that the Slovenian court should have taken a more active role in clarifying jurisdiction, that the German proceedings had been pending for an excessive period, and that the stay of proceedings violated her right to a timely decision. She also maintained that the circumstances justified issuing provisional measures to protect the children’s welfare and to prevent further hardship.
The Court of Appeal held that the Court of First Instance had correctly applied Article 19 of the new Brussels II Regulation, according to which, ‘where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established’. It was established that the respondent had already initiated comparable proceedings in Germany and that the German court had not yet reached a final decision on jurisdiction. The stay of proceedings in Slovenia was therefore justified.
The Court of Appeal agreed that rejecting the request for temporary custody was correct, as the children were already living with the plaintiff in Slovenia while the defendant resided in Germany and maintained only telephone contact. The plaintiff had not shown any imminent danger to the children that would justify such a measure, and temporary custody orders are not intended to prevent contact or address parental conflicts.
However, the Court of Appeal found that the lower court erred in refusing a temporary maintenance order. When proceedings are expected to last and one parent fails to contribute despite being able to work, the court must ensure adequate maintenance through interim measures. The Court of First Instance had wrongly included reimbursements for work-related expenses as income and overlooked the full cost of the plaintiff’s accommodation in a safe house. The evidence demonstrated that her disposable income was below the subsistence minimum and that the respondent contributed nothing to the children’s support.
Accordingly, the Court of Appeal partially upheld the appeal, amended the contested decision and ordered the defendant to pay maintenance of EUR 90 per month for each child until a final decision is reached. In all other aspects, the appeal was dismissed, and the remainder of the decision of the Court of First Instance was upheld.
(1) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.