SYLVESTER HAGUE CASE: ACTION REQUEST COMPLETED

UNCLAS VIENNA 000301

SIPDIS

CA/OCS/CI FOR ECONWAY AND GDEBOER; EUR/AGS FOR VVIKMANIS-
KELLER

E.O. 12958: N/A
TAGS: KOCI CASC AU
SUBJECT: SYLVESTER HAGUE CASE: ACTION REQUEST COMPLETED

REF: A) VIENNA 92 B) STATE 2469


1. SUMMARY: REF B was an action request instructing post
to meet with the Austrian Central Authority (ACA),
contact the Austrian attorney representing Tom Sylvester,
and attend the March 15, 2006 hearing on his Article 21
Hague Access Case. REF A reported on our meeting with
the ACA on January 11, 2006. This telegram provides the
gist of our discussions with the Austrian attorney,
including a telephone call and a personal visit in
conjunction with a prison visit to the same area. END
SUMMARY.


2. Conoff and Legal Assistant met with Austrian attorney
Martina Weirer at her office in Graz on January 24 for
almost two hours and referred to the talking points
provided in Ref B. The tone was cordial and Weirer
seemed eager to talk. Weirer confirmed what the ACA had
earlier told us (ref A),that the court did not/not
oppose informal access by Tom Sylvester to his child;
that in order to avoid having to rule against Tom
Sylvester because of his daughter's obstinate reluctance
for contact the court had instituted a "breathing space"
of some nine months in order to make his daughter feel
under less pressure over visitation in the hope her
attitude would soften; and that the court felt strongly
that Tom Sylvester indeed ought to have visitation/access
with his daughter. (Embassy comment: Thus, Ref B is
somewhat in error is stating that during the last hearing
in November, the judge ordered no access. This would be
neither the understanding of the ACA nor of the attorney
in the case).


3. Weirer had not been aware that Tom Sylvester had not
been able to telephone his daughter since July 2005, nor
that Monika Sylvester had failed to provide him with the
daughter's email address, as had been agreed in court.
She said she would immediately request the email address
from opposing council.


4. According to Weirer, the most difficult issue for the
court is the child's refusal to see her father. As we
have heard before, in the absence of hard proof of
alienation or coercion there is no legal basis under
Austrian law to force access against the will of a child
of this age. Weirer added that the court psychologist
would talk to the child again sometime before the court
date but cautioned that Austrian judges are generally
reluctant to order visitation that may be difficult to
enforce because of the resistance of the child.


5. If on March 15 the court were to rule against Tom
Sylvester's application, Weirer plans to appeal to a
higher court on the grounds that the daughter is indeed
an 'alienated child.' She said she would also refer to
the ECHR ruling in requesting that Austria meet its
obligation to end the violation of their right to a
family life.


6. Regarding consular attendance at the March hearing,
Weirer said she would raise the possibility with the
judge once she has her client's authorization. Weirer
thought our presence at the hearing could "not hurt" but
explained that Monika Sylvester's attorney had the option
to oppose our attendance and she, Weirer, did not think
the issue was worth fighting over.


7. Finally, she would not favor a motion to remove the
judge because it would slow down the appeals process.
The judge could not in any event be removed until she had
rendered a final decision on the application, and some
hard proof of bias would be required. Weirer also said
that it was not unusual for a judge to follow the
recommendations of the child psychologist. She did not
see the judge's behavior as biased or especially
difficult, and said that among the other judges this
judge was particularly well-regarded.


8. Post will follow up with a telegram on the March 15
hearing, per ref B, regardless of whether we are able to
be present or not. We will continue to work with the
attorney to press for attendance.

MCCAW