Oberster Gerichtshof, Urteil vom 03/08/2006 8 Ob 73/06b
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2006:0080OB00073.06B.0803.000
Date: 2006-08-03
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82006AT0803(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The parties are divorced spouses. They are in dispute about the father's visitation rights regarding the minor daughter who lives with her mother. The divorce proceedings were brought before the Familiengericht of Miesbach (DE). The parties have joint custody of the daughter. In the divorce proceedings, the court regulated the father's visitation rights by means of a visitation agreement which was put on judicial record. Some years later, the mother moved to Austria together with her daughter. She did not inform the father about the relocation. Thereupon, the father obtained a declaration of enforceability of the visitation agreement from the Bezirksgericht of Leibnitz (AT). As the mother failed to deliver the daughter to the father at the first visitation appointment, the court ordered a sanction in a limited amount. However, the Bezirksgericht dismissed the following applications by the father, who still could not visit his daughter at the subsequent appointments. The dismissal was affirmed by the Landesgericht of Graz (AT) as appellate court. The father appealed to the OGH (AT).
The OGH (AT) allows the appeal. It holds that its decision depends on the declaration of enforceability of the visitation agreement in Austria. For this purpose it is irrelevant that the father presented a document according to Article 41 Regulation 2201/2003 "Brussels IIbis", which the German family court subsequently revoked on the ground that Regulation 1347/2000 "Brussels II" had to be applied. According to Articles 14(1) and 21(1) Brussels II Regulation, the German judicial agreement has to be recognised in Austria without any special procedure being required. It makes no difference that the court based its decision on the Brussels IIbis Regulation. However, the judgment by the appellate court was solely based on a private expert opinion presented by the mother and thus, had to be overruled, as it was incorrect in its substance.