Family court assistance

The Family Court Assistance (FGH) is an instrument of the administration of justice in Austria and supports the competent courts in the proceedings on custody and the right of contact (formerly: right of visit).

Family judicial assistance is only active on behalf of the court and is strictly bound by the judicial mandate. The family court assistance is added to the existing options of the courts through the involvement of youth welfare or the commissioning of legally sworn and certified experts . The family court assistance is not a privately accessible advice center.

history

The family court assistance was started as a model experiment at four Austrian court locations on January 1, 2012. After a successful test phase, family court assistance was introduced across Austria in July 2014. Since the beginning of 2015, the judicial support agency has also made youth court assistants available to the judiciary.

In 2018, 4919 cases involving family court assistance were closed across Austria.

Legal basis

The legal basis for family court assistance is found in Section 106a of the Extraordinary Disputes Act (AusstrG).

Aims of family court assistance

The goals with regard to the introduction of the family court assistance are with a neutral "buffer facility"

shorten the duration of proceedings in custody and contact disputes (cost optimization),
to defuse the role conflicts with regard to the judges and the youth welfare agency (role optimization) and
to improve the quality and sustainability of family court proceedings (quality optimization).

Task of family judicial assistance

According to § 106a Abs. 1 AusstrG, the family court assistance with suitable specialists (e.g. social workers, psychologists or educators) has the task, if necessary, of the court on its behalf:

when collecting the basis for decision-making,
the initiation of an amicable agreement (in 2018 there were 1207 amicable agreements) and
informing the parties

to support in proceedings about custody or personal contacts. This can also be done by submitting oral or written expert opinions (similar to an expert opinion ). Parties to the proceedings have the right to comment on this technical opinion of the family court assistance before the court decision and to request a "correct" expert opinion in order to refute the professional opinion of the family court assistance.

In contact law proceedings, the court can also commission the family court assistance as a visit mediator and it can commission the family court assistance with questioning the underage child (Section 105 External Act).

In order to fulfill its tasks, the family court assistance is entitled “ to summon and question persons who could provide information about the living conditions of a minor child, and to establish direct contact with the child. Persons in whose care the child is obliged to tolerate such contact ”. The participation of persons can be enforced by the court with coercive means up to the point of custody .

“ The security authorities , public prosecutor's offices , courts and institutions for the information, care and treatment of minors must provide the persons working in family court assistance with the necessary information and allow access to the files and records; the youth welfare agency is only obliged to provide information ”.

The person working for family court assistance can be refused in proceedings like experts .

Confidentiality

" Except when they have to make an official notification, the people working for family court assistance are obliged to maintain secrecy towards everyone about the perceptions made in the exercise of their activity, which are to be kept secret in the interests of one of the parties ". In accordance with Section 321 (1) of the German Code of Civil Procedure (ZPO), the employees of the family court assistance have the right to refuse to give evidence in the matter for which they have been appointed.

Locations

Family court assistance is represented in Austria by the judicial support agency at 19 locations: Amstetten , Bruck an der Mur , Eisenstadt , Feldkirch , Fürstenfeld , Graz , Innsbruck , Klagenfurt , Krems an der Donau , Linz , Ried im Innkreis , Salzburg , St. Pölten , Steyr , Villach , Wels , Vienna , Wiener Neustadt and Wörgl .

The family court assistance at one location also looks after other district court locations that have not installed their own family court assistance.

Legal status of family court clerks

Family judicial assistance staff are trained psychologists , social workers or educators . The basic and advanced training is standardized.

According to § 106c Abs. 3 AusstrG, when performing their duties, “ persons working in family court assistance are the same as civil servants within the meaning of § 74 Abs. 1 Z 4 StGB ” and must be provided with a federal official ID.

This means that the strict criminal law provisions of the Criminal Code for protection but also with regard to the obligations of civil servants in Austria (e.g. confidentiality of information) are to be applied to the employees of the family court assistance.

literature

Peter Barth u. a., Handbook of the new child and naming law , series of publications of the interdisciplinary journal for family law vol. 6, Vienna 2013, Linde Verlag, ISBN 978-3-7073-2108-1 .
Dexler-Hübner, Fucik, Huber, Das neue Kindschaftsrecht , ZAK special, Vienna 2013, Lexisnexis Verlag ARD ORAC, ISBN 978-3-7007-5454-1 .

Web links

Family and partnership. HELP.gv.at , January 13, 2014, accessed on March 7, 2018 .

Individual evidence

↑ Custody for the well-being of the child up to the age of majority is one of the central duties of parents in child law in Austria .
↑ The Austrian legislator assumes that the right of contact between parent and child exists in principle. Therefore, the right of contact also exists regardless of whether the parent who is not entitled to custody fulfills his / her maintenance payments or not. The right of contact should in principle be regulated by mutual agreement between both parents and the child. Only if this is not possible, the courts should come to a regulation.
↑ See: Childhood and Name Rights Amendment Act 2013 (KindNamRÄG 2013).
↑ KindNamRÄG 2013, Federal Law Gazette I 2013/15.
↑ Family and juvenile court assistance , website of the Justizbetreuungsagentur, last accessed on May 26, 2019.
↑ ^a ^b Stefanie Zach: Procedural institutions for the protection of children in civil proceedings - an overview , Zak - civil law up-to-date , p. 149.
↑ ErlRV 2004 BlgNR 24, GP 6 ff.
↑ See also: Project presentation of a model experiment in family court assistance - Model experiment in family court assistance , p. 1.
↑ The court as an impartial, independent, instruction-free and impartial institution, the youth welfare agency as a partisan, independent, instruction- bound institution only committed to the best interests of the child. In contrast, family court assistance in Germany is a field of activity of the responsible youth welfare office. According to § 50 KJHG, the youth welfare office supports the family court in all measures that concern the care of children and young people.
↑ The order of the court is a procedural decision and cannot be challenged separately according to § 45 AusStrG (7 Ob 129 / 15v). The court decides relatively freely whether to use family judicial assistance.
↑ Within the meaning of Section 106a, Paragraph 2, last sentence, AussStrG in conjunction with Section 20, Paragraph 1, Sentence 1, ForeignStrG, it is assumed that the parties and their representatives (e.g. lawyers ) in the surveys of family court assistance (e.g. social workers , in kindergarten, school etc.) are not allowed to be present.
↑ However, the family court assistance may not take on any judicial activities. The evaluation of the evidence always remains with the court
↑ See §§ 351 ff ZPO, this statement is not an expert opinion / expert evidence.
↑ 10 Whether 21 / 17m.
↑ § 106b AusStrG.
↑ If such a questioning was carried out by the family court assistance, the child does not have to appear in person before the court (ErlRV 2004 BlgNR 24. GP 35).
↑ Section 79 (2) in conjunction with Section 106a (2) AusStrG.
↑ Section 106, Paragraph 4, Clause 2 of the Foreign Tax Act.
↑ Alphabetical list. For a geographical list, see: Ordinance of the Federal Minister of Justice, which orders the district courts for which family court assistance is set up (FamGHV-BMJ 2014), Federal Law Gazette II No. 122/2014.
↑ Section 106c (1) AusStrG.
↑ Consolidated decree on family court assistance from May 11, 2018, BMVRDJ-Pr319.00 / 0026-III 4/2018, 42.

[1] Custody for the well-being of the child up to the age of majority is one of the central duties of parents in child law in Austria .

[2] The Austrian legislator assumes that the right of contact between parent and child exists in principle. Therefore, the right of contact also exists regardless of whether the parent who is not entitled to custody fulfills his / her maintenance payments or not. The right of contact should in principle be regulated by mutual agreement between both parents and the child. Only if this is not possible, the courts should come to a regulation.

[3] See: Childhood and Name Rights Amendment Act 2013 (KindNamRÄG 2013).

[4] KindNamRÄG 2013, Federal Law Gazette I 2013/15.

[5] Family and juvenile court assistance , website of the Justizbetreuungsagentur, last accessed on May 26, 2019.

[Zach-6] Stefanie Zach: Procedural institutions for the protection of children in civil proceedings - an overview , Zak - civil law up-to-date , p. 149.

[7] ErlRV 2004 BlgNR 24, GP 6 ff.

[8] See also: Project presentation of a model experiment in family court assistance - Model experiment in family court assistance , p. 1.

[9] The court as an impartial, independent, instruction-free and impartial institution, the youth welfare agency as a partisan, independent, instruction- bound institution only committed to the best interests of the child. In contrast, family court assistance in Germany is a field of activity of the responsible youth welfare office. According to § 50 KJHG, the youth welfare office supports the family court in all measures that concern the care of children and young people.

[10] The order of the court is a procedural decision and cannot be challenged separately according to § 45 AusStrG (7 Ob 129 / 15v). The court decides relatively freely whether to use family judicial assistance.

[11] Within the meaning of Section 106a, Paragraph 2, last sentence, AussStrG in conjunction with Section 20, Paragraph 1, Sentence 1, ForeignStrG, it is assumed that the parties and their representatives (e.g. lawyers ) in the surveys of family court assistance (e.g. social workers , in kindergarten, school etc.) are not allowed to be present.

[12] However, the family court assistance may not take on any judicial activities. The evaluation of the evidence always remains with the court

[13] See §§ 351 ff ZPO, this statement is not an expert opinion / expert evidence.

[14] 10 Whether 21 / 17m.

[15] § 106b AusStrG.

[16] If such a questioning was carried out by the family court assistance, the child does not have to appear in person before the court (ErlRV 2004 BlgNR 24. GP 35).

[17] Section 79 (2) in conjunction with Section 106a (2) AusStrG.

[18] Section 106, Paragraph 4, Clause 2 of the Foreign Tax Act.

[19] Alphabetical list. For a geographical list, see: Ordinance of the Federal Minister of Justice, which orders the district courts for which family court assistance is set up (FamGHV-BMJ 2014), Federal Law Gazette II No. 122/2014.

[20] Section 106c (1) AusStrG.

[21] Consolidated decree on family court assistance from May 11, 2018, BMVRDJ-Pr319.00 / 0026-III 4/2018, 42.