Case No. ZC20D00020

67.I heard oral evidence from both parties and from Mrs Heyland. Perhaps not surprisingly, both counsel asserted that their client was demonstrably a honest witness of truth, who tried to assist the court, whereas the other’s was an unreliable historian who manipulated the facts to suit their respective contentions. The truth is, as so often, somewhere in the middle. Both parties are highly intelligent. They were both well aware of the strengths and weaknesses of their own cases and the strengths and weaknesses of the other. As a result, both gave evidence that fitted their respective narratives and, where the facts did not assist them, side-stepped those facts or put a slant on them that was not justified. Mr Todd submitted to me that the witness on whom I could rely without reservation was Mrs Heyland. Indeed, I accept that she was a witness of truth doing her best to assist me but the question is whether she was really able to give evidence that was determinative of anything. This can best be seen by her statement that the Wife told her between March and July 2019 that “she had resolved to make England her home, once it was practical to do so”. I accept that she was told this. The question I have to resolve, however, was when did the Wife make England her permanent home? When was it practical for her to do so? 68.The Wife gave her evidence first. She was asked by Mr Yates about what she said concerning the trip to this country in July 2019 in her first statement. She had said at Paragraphs [51] to [52] of that statement that the family travelled here in a private jet and that she packed as much luggage as she could. She has subsequently accepted that the family travelled on a scheduled airline and, as she was constrained by luggage allowances even in Business Class, she had actually packed “relatively lightly”. She told Mr Yates in cross-examination that she had made a mistake about the private jet as they travelled so much that year. She added that, whenever she came to this country, she always tried to pack as much as she could. She acknowledged that her luggage on that trip could not be said to have been evidence of her moving to England, given that she now accepts that she packed “relatively lightly”. Moreover, the Husband had not noted any unusual packing. I am prepared to accept that she may have made a mistake about the private jet, as it would be so easy for it to be confirmed one way or the other, but I do consider that she was not being frank about her packing in her first statement. Indeed, she later said that they would travel relatively lightly as they already had their toiletries, toothbrushes and a full wardrobe in Wallsgrove. She had gone on to say that, if she had taken more, it would have alerted the Husband to her intentions, which she did not wish to do. 69.She also accepted that return tickets had been purchased. She made the fair point that she had a child to care for who was, at the time, still based in Austria. She said she had not said that she never went back to Austria. She repeated, however, that she had made her mind up that Wallsgrove would be her home. I have to say that, even if that had been the case, I can see absolutely no objective evidence of that at all, until she filed her first petition on 26 September 2019. She accepted that there had not been a specific date for relocation but again said she had made her mind up to live here on 19 July 2019. In fact, her case is that she had made her mind up to live here long before that, when she spoke to Mrs Heyland. The issue is the date on which she carried this intention into effect. She repeated that she could not tell the Husband due to his likely reaction. I accept that the Husband has behaved badly and that he had his “demons” during the marriage, but I am clear that the real reason the Wife never told him of her plans was more related to her wish to establish jurisdiction here before he petitioned elsewhere, rather than her fears as to his reaction. After all, it is accepted that he moved out of the Vienna home in October 2019 but she did not even tell him then that she had, on her case, already moved to London. She was referred to Paragraph [56] of her first statement when she said that it was clear that the family intended to be based far more heavily in England. I accept that they had discussed this and that, at times, even the Husband agreed to move here for a cosy life in the country but that is not the same as actually moving here. 70.She was adamant that, although there was not one particular day when she moved into Wallsgrove House with a removal truck, she absolutely considered herself to be resident here by the date of her first petition. The dates do not, in fact, completely marry up so, even if this was correct, it does not mean there was jurisdiction at the time of the third petition. She could not get away from the fact that she returned to Vienna for several days on 15 September 2019, the day after she needs to prove that she was resident here. She was asked about her comment that she was still not entirely certain that the marriage was over in Paragraph [57] of the same statement. I do not consider that assists Mr Yates as she could have moved here, whilst hoping the Husband would join her. After all, they did spend Christmas together in Wallsgrove. Moreover, she said that she did invite him to join her here, before lockdown, given that X was by then in England. This has the ring of truth and I am inclined to accept it. She said that she issued a petition due to the incredible pressure that she felt under but she added that it was emotionally very hard to say goodbye to the life they had together. 71.Mr Yates then asked her about 10 October 2019. She accepted that the Husband moved out to his new property that day. She was there in Austria at the weekends to look after X. She said the cats belonged to X. The parties had bought them for X as he had asked for pets many times. She added that she was not particularly fond of animals in the house, so Mr Yates took her to her most recent statement, where she had said that she has, in this country, “..most of my sentimental and precious belongings here with me, including…our cats”. She replied that they are part of the family. She denied any intention to return to Austria, saying she would remain here, reminding the court that she had a beautiful house here and both her children are here. On the balance of probabilities, I accept her evidence in that regard. 72.She was then asked about her statement when she said she “signed (the marriage contracts) without proper legal advice”. She said that she did go to a Norwegian lawyer after she signed the Second Marriage Contract. Mr Yates therefore took her to an email dated 19 February 2015 from that lawyer which she had forwarded to the Husband. The email said that she should sign the Second Marriage Contract as it was “a very good deal”. Her response was to accept that it “looked like” she had contacted the lawyer, Nina Reiersen before she signed. She said she was told nothing more than that it was a very good deal. She repeated her case that the lawyer was a colleague of the Husband, but acknowledged she has chosen Ms Reiersen herself. It subsequently transpired that the only connection of Ms Reiersen with the Husband was that they had been students together. Overall, there is no doubt that some of the Wife’s evidence was unreliable. I have found that she was not frank about her luggage in July 2019. I therefore find that she was attempting to put a gloss on her evidence and, at times, that evidence was simply wrong. 73.I then heard from her friend, Mrs Patricia Heyland. I make it clear that I entirely accept that Mrs Heyland was telling me the truth, as she saw it, and that she was doing her best to assist me. I reject the suggestion that she was only supporting the Wife because she had been paid by her. It is right that Mrs Heyland told Mr Yates that she had not been paid by the Wife at any point whereas Mr Yates was able to show that she had received €5,000 per month from May to November 2019. I accept, however, that she had been answering a question as to whether she had ever been paid directly by the Wife for work as a psychotherapist, whereas the money paid was a gift due to Mrs Heyland suffering hard times. It would have been better if she had mentioned the gifts immediately but it does not undermine her basic veracity. Nevertheless, as I have already indicated, Mrs Heyland cannot give me direct evidence as to exactly when the Wife did move here permanently, even though she says the settled here properly in the summer of 2019. All she can say is that the Wife told her she was intending to do so, “when it was practical to do so”. 74.I then heard from the Husband. As the main focus of my decision is the Wife’s habitual residence, his evidence was significantly less important than that of her evidence. He was, however, able to give me some relevant evidence as to residence. He told me that the Wife was certainly living in the Austrian house on 10 October 2019, otherwise he would not have moved out. She was in the house when he moved. She had not moved out any belongings before that, nor, to his knowledge, had she prepared in any way for such a move. She did not tell him that she had moved. All of this evidence I accept. He reminded the court that X remained in Austria as a weekly boarder. They had agreed that they would have him on alternate week-ends. He added that he could not say exactly when she moved out but he accepted she had done so by the time he was served with what we know as her second petition on 26 February 2020. He said that his life was in tatters. It was very shocking. She had “kidnapped” his son when she took X to Y School without the Husband’s knowledge. Mr Todd was able to show him messages in January 2020, which make it clear that he was aware of the application for X to attend Y School. For example, on 22 January 2020, the Wife sent him a WhatsApp message that said “as I leave (sic) here it will make sense that he (X) leaves (sic) here to”. When the Wife wrote “leaves”, she clearly meant “live” as the Husband accepted. The Husband’s response was “Ok, let’s meet with my lawyer and discuss the details and I will support you with this”. I accept, however, that he was not aware of the move to Y School at the time it happened, although he did agree subsequently, which is to his credit. He complained that he asked to talk to the Wife. She agreed and told him to meet her in South Kensington. When he did so, a process server jumped out and served him with the petition. He was clearly upset about this and I can understand why. 75.Mr Todd asked him about a number of earlier texts and emails that I accept clearly show him seriously considering moving to this country with the Wife. Indeed, at times, he went as far as to agree to the move. At one point, he said he was “ready for a quiet English life”. A later WhatsApp message referred to him saying they should do what they agreed, which included “just live a ‘boring’ countryside life”. He was not prepared to accept what these messages clearly showed. Equally, he told me, for the first time, that he tried to get the Wife to agree to move to Wallsgrove House many times but she refused, saying she did not like change. I cannot accept that he asked her to move to Wallsgrove. After all, he then insisted that Wallsgrove was only a “holiday home”. I find his answers in this regard to have been evasive and self-serving but I remind myself that this is not the issue in the case, which is when the Wife moved here. He was asked about an email he sent to the Royal Academy of Music on 19 March 2019, trying to get a place for X. The email was sent under the misapprehension that the Royal Academy had a secondary school attached. The Husband said that the family “will move to our estate outside London, Wallsgrove House” and that he was considering buying a townhouse in Brompton. He accepted that they would have “gone through the roof with joy” if the Royal Academy had accepted X and tried “to accommodate it” and he would have “gone to great lengths to persuade (his Wife) to move there to let (X) go”. He then said that the rest of the email was “not entirely true” about moving to Wallsgrove but he thought he should boost the email as much as possible. I do not accept this evidence. He discussed with the Wife moving and said he would, but he did not go through with it. 76.He was then asked about a number of threatening emails and texts he sent to the Wife, particularly about the financial position. These included “you have started a war against me in the UK courts. What you probably forget was that I used to be one of the best Norwegian lawyers. I have been to court (more) times than you care to know. I will win that war and you will most likely regret that you did not go for the amicable solution I invited you to during fall 2019. Am not sure you will even get your 15% in (Nicolaisen Invest).” He said he was angry on his birthday. Mr Todd said it was because the Norwegian Court had just dismissed his petition. He said he could not remember, but he clearly could. I accept it was this that had caused him to send that message. He was also taken to further messages where he said things such as “My feeling is you don’t cooperate unless I threaten you”; “Give me one reason why I should protect you against low dividends when Beate takes over (Norwex)”; and “I will get court decisions that I am the real owner of all properties stopping you from using them and selling them”. His only response was to say that he was very angry but he had not followed any of these threats up. In relation to the dividends, he said that he had to live on them as well, so they would have to continue to be paid. He did not really respond when Mr Todd suggested he could be paid a salary instead. In any event, these messages would have been deeply distressing and intimidating to the Wife. These were disgraceful emails that do him no credit whatsoever but they do not help me as to what I have to decide. 77.He was then asked about various miscellaneous matters. He accepted that the cats were X’s but then said “or are they the Wife’s cats”. If he said this due to the perceived effect on his case of saying they belonged to X, it again does him no credit. He was asked how he could file a petition in Austria and one in Norway, saying he was resident in both at the same time. He had no satisfactory answer to this, other than saying he satisfied both jurisdictional requirements. I cannot see how that can be correct. Finally, he was asked in which jurisdiction he intended to proceed if he won this case. He said he “hadn’t thought about that. Probably easier to go in Norway. I don’t know….No, maybe it’s easier to go on in Austria. I don’t know. But I haven’t gone into that at all”. In relation to stay, I consider this response very significant.