Case No. ZC20D00020

78.I now turn to my conclusions on habitual residence. I have absolutely no doubt that the Wife was habitually resident in England and Wales by the date on which she filed her third petition, namely 14 September 2020. There are numerous indicators, such as that she had spent 321 out of 366 days here prior to 14 September 2020; that the Husband accepted in evidence that she was living here in February 2020 when he was served; that X had moved here in February 2020; and that the cats had come here on 14 February 2020.79.That fact is not, however, sufficient on its own to found jurisdiction for the petition. I have to be satisfied that she was habitually resident (or possibly resident) here on 14 September 2019 and throughout the twelve months thereafter. I accept that she intended to move here “when it was practical to do so”. Had she done so by 14 September 2019?80.I reject as entirely unsustainable her case that she moved here on 19 July 2019. She came here with the Husband and X for a holiday. They had return tickets to Austria on 30 July 2019 and they used those tickets. She was not frank with the court about travelling here on a private plane with significant luggage. In fact, she travelled here with light luggage. There was absolutely nothing to differentiate this trip from any other. I am unable to accept her evidence that she intended to move here, given the way that she was not frank with the court about the plane and the luggage. 81.I have decided that I must look for concrete evidence that she had, indeed, moved to reside here by 14 September 2019. I regret to say that there is no such evidence whatsoever. The first possible objective evidence of a change in her residence from Austria to England is the first petition that was issued on 26 September 2019. 82.After the July 2019 holiday, the family returned to Austria until 9 August 2019 when they went on their world tour. When the Wife left Australia, she returned to Austria, not England. Although she was here again from 21 August, she flew back to Austria on 24 August, so was here for three days. She came back here on 26 August but was again here for only three days before she went to Oslo for a week with Mrs Heyland. She then spent six nights here, before again returning to Austria for two nights. This may well have been to see X but the fact he was still in Austria and she was his main carer is important of itself. She was then back here for only two more days. I have found it very telling that the day after she must establish she was resident here, namely 14 September 2019, she flew back to Austria again for another eight nights. At that point, the maximum time she had spent here consecutively had been the eleven nights in July during the holiday. Overall, she had only spent 22 out of 57 nights here before 14 September 2019. She says she was “moving belongings” on her visits to Austria on 12 September 2019 but she says exactly the same thing on 22 September 2019 and 29 September 2019 and, indeed, thereafter. This suggests she was still in the process of moving here after 14 September 2019.83.As I have already said, I have not been able to find one piece of concrete evidence that she had actually moved here by 14 September 2019. I do not find the fact of the housewarming party helpful to her in this regard. The Husband and X were there as well and it is not said they had moved to this country. There was no difference between her occupation of Wallsgrove House during this period, as against theirs. She did not tell the guests she had moved. It was not the neighbours who were invited. I was not told that Mrs Heyland and her family were invited. I accept it was a housewarming party but there is no evidence that it was a moving in party.84.On the other hand, there are a number of concrete pieces of evidence that the Wife was still resident in Austria. In no particular order:-(a)Her son, X, for whom she was the prime carer, remained living in Austria and attending school there. She had clearly not told him that she had moved to England.(b)On 10 October 2019, the Husband felt he had to move out of the Vienna home. I accept that he would not have done so if he had thought the Wife was not living there. Her reaction was to lock the property. This is consistent with her living there not living in England.(c)She had not told anybody that she had moved to England. I understand why she did not tell the Husband as she wanted to try to prevent him from petitioning in Austria for as long as possible but she did not tell Mrs Heyland she had now moved. For example, Mrs Heyland did not say that she was told during the Oslo trip that the Wife had now moved to London.(d)The precious cats remained in Vienna. Whether they belong to the Wife or X is not really relevant to this. They had not moved to London. The Wife could quite easily have moved them on the basis that she had to look after them whilst X was at boarding school. She did not.85.I accept that Mr Todd can point to a plethora of evidence of the move after 14 September 2019. I have evidence of doctors; dentists; bank accounts; applications for pre-settled status; and the like but they all post-date 14 September 2019. Indeed, there was only one document dated before the end of 2019. I accept that these may be the only documents the Wife can find but I find, on the balance of probabilities, that all of these steps to establish herself in Loughton came after 14 September 2019. I do not take the view that the fact that it took until February 2020 for the Wife to de-register for tax purposes in Austria or, on the balance of probabilities, until January 2020 to apply for pre-settled status here shows that January/February 2020 is when she became habitually resident here. The point, however, is that these steps were not take until after 14 September 2019. If any one of these things had happened before 14 September 2019, it would have been excellent evidence that she had moved here by then but there is absolutely no such evidence at all.86.I am unable to say exactly when the Wife did complete her move from Austria to England. She had clearly definitely done so by early 2020. It may be that she would have been able to satisfy me that she had done so at some point during the latter part of the autumn of 2019, simply by being here for an extended period. I do not consider the fact that X was still in Austria to be a complete bar on her being able to establish residence here at the same time. The sheer weight of days eventually adds up to habitual residence. Fortunately for me, I do not have to determine an exact date. I am however, entirely clear that it had not happened by 14 September 2019, whether I apply the habitual residence test or the simple residence test. The toing and froing throughout September and October 2019 show that there was not, by the relevant date, a planned, purposeful and permanent relocation, sufficient to establish jurisdiction. For this reason, jurisdiction is not established and the third petition must stand dismissed. This means that the second petition must be dismissed as well.