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The new family law - blessing or curse?

By family law expert Matthias Loinig

On Monday Jan 21, 2013 the Viennese "Juristenverband" (the Viennese jurist’s union) called to a round-table discussion in regard to the new family law under the direction of Mag.  Täubel- Weinreich, Dr. Brigitte Birnbaum and Dr. Rotraud Erhard.

Even in her introduction at the very beginning, Dr. Brigitte Birnbaum, a lawyer specialized in family law, made a clear statement in regard to the new family law.

According to her it would be an enormous project which has been put into effect extremely quickly. She described it as being like the "pregnancy of en elephant with a fall-birth".

The chairlady of the joint working group for family law, the family judge, Mag. Doris Täubel- Weinreich, approved of the major overhaul of the entire family law and of the focus on the child’s well-being.

Moreover she pointed out that 20 new judges will take up employment and that the new version of family court assistance, which runs until 2014, can be very successful.

The fact that the parties can agree on joint custody directly at the civil registry office with a revocation period being granted can be a great relief for the courts.

The "visitation right" is from now on called "contact right". Official authorizations of the competent family judge are no longer needed.

On the whole the chairwoman of the joint working group for family law appears to be confident and optimistic.

Dr. Rotraud Erhard of the department of forensic psychology of the Federal Association of Austrian psychologists, however, holds the view that the new draft law contains an enormous potential for conflicts at the children’s cost.

It may be a problem that a new authority, the so called family court assistance, is introduced in addition to the youth welfare office. In this authority there are no clinical psychologists, but mere psychologists. This, however, is a major shortcoming with the effect that the judge, again, has to call in a child psychologist in case of a custody battle, which extends the process.

Dr. Erhard also criticizes that although an obligation to confidentiality is imposed on doctors and psychologists, they have a duty to disclosure in regard to the family court assistance. This duty to disclosure can even be enforced by the court.

"This means that when I go to the doctor or to the psychologist, I have to take into account that the information I give to my doctor because of his obligation to confidentiality may end up at the family court assistance," says Dr. Erhard.

When the honorable audience started to ask questions in regard to the proposed joint custody, everybody listened carefully:

How can it be that in case of joint custody the parent with whom the child is living can go to a foreign country? How can this be in conformity with the Convention on the civil aspects of international child abduction?

Dr. Robert Fucik, head of the department of international family law in the Federal Ministry of Justice, is at the moment working on these problems and will publish a book on this topic. Apart from that, we will have to wait what the Austrian Supreme Court’s position will be.

What criteria will the judges use to find a quick solution for the "cooling down" period of 6 months?

Since everything is still open, it has to be first exactly determined when those 6 months start and when they end. Referring to this, we also will have to wait until the Supreme Court makes his first decisions.

If joint custody is not possible in a highly conflictual family situation, isn't the final result the same to what the law says until now, namely that joint custody can only work if the parents agree on it?

This will decide the judge. And: Of course, the Supreme Court

And the most important question: What are the fundamental changes compared to the actually family law?

This question could not really be answered by the experts:

Just one thing seems to be very clear:

The Supreme Court will have a lot of work from February 2013 and the 20 new judges will be needed much more there.

Austrian Times


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