Deputy Commissioner of Taxation v Shi

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. Mr Paquet and Ms Sykora were married in Country D in 2012.
2. On 1 March 2024, Mr Paquet filed an application for divorce. Ms Sykora opposes the granting of the application.
3. Ms Sykora represented herself at the hearing of the application and was assisted by an interpreter. Her submissions, evidence, and cross-examination of Mr Paquet were difficult to follow.
4. Doing the best I can, it seems Ms Sykora contends that Australia is a clearly inappropriate forum for the granting of a divorce. She also appears to suggest that the parties were not living separately and apart for a period of not less than 12 months immediately preceding the date of filing of the application.
5. For reasons that follow, I reject both contentions.
6. Mr Paquet relied on Affidavits filed by him on 27 June 2024, 22 July 2024 and 4 November 2024 along with the attachments thereto. Ms Sykora relied on her Response filed 3 April 2024, affidavits filed by her on 5 April 2024, 10 April 2024 and 21 October 2024 together with attachments thereto.

1. Mr Paquet is an Australian citizen. He may accordingly apply for a divorce.[1]
2. Despite the Court's jurisdiction being properly invoked, I have a discretion to stay the proceedings if I am satisfied that Australia is a clearly inappropriate forum for the determination of the application. The test is satisfied if a continuation of the local proceedings would be oppressive in the sense of "seriously and unfairly burdensome, prejudicial or damaging", or vexatious in the sense of "productive of serious and unjustified trouble and harassment".[2]
3. Curiously, Ms Sykora suggests the local forum is clearly inappropriate despite there being no application for divorce pending in any foreign court. She advised that a draft divorce application has been prepared on her behalf in Country D, but she has no intention of signing it or making the application.
4. There is accordingly an absence of any competing matrimonial proceedings in Country D.[3] Ms Sykora advises that there is currently a contempt case in Country D which may be revived by her. She has identified no other pending proceedings in Country D.
5. Ms Sykora suggests that it would be for Mr Paquet to file an application for divorce in Country D. She has not adduced evidence to satisfy me that he is entitled to do so, noting that she bears the onus of proving the foreign law,[4] which is to be through expert evidence.[5] Ms Sykora has not established that relevant relief is available to Mr Paquet in Country D, which availability is always a relevant factor.[6] There has been no invocation of the Country D Court's jurisdiction to grant a divorce, nor is one proposed, so I cannot adjourn the local proceedings to enable the foreign court to determine whether it has jurisdiction.[7]
6. Ms Sykora claims that her legal rights in Country D will be prejudiced by the granting of a divorce in Australia. No attempt is made by her to reconcile that claim with her evidence that a divorce by an Australian court "will not be recognised by [Country D] court or law".[8] In any event, Ms Sykora is not qualified to give evidence with respect to foreign law and I decline to accept her opinion or contention that prejudice will be occasioned to her in Country D by the granting of an Australian divorce.
7. Ms Sykora's assertion that Australia is a clearly inappropriate forum for the granting of a divorce is also difficult to reconcile with the fact that she herself has invoked the Court's jurisdiction for financial relief. Her application to that effect was first made in January 2023 and was most recently amended in February 2025 such that she now seeks both property settlement and spousal maintenance orders. Those disputes are ordinarily "but aspects of an underlying controversy with respect to the marital relationship".[9]
8. Ms Sykora has not established that Australia is a clearly inappropriate forum for the granting of the divorce.

1. Mr Paquet deposes that the parties separated on 1 October 2022. He also deposes that they lived under the one roof, but not as a married couple, from 5 February 2023 to 23 February 2023.
2. Ms Sykora's Response states the following:

I strongly oppose the Divorce Application on the following grounds: Separation period is in Dispute. We were a couple till May 2023 by the way of living together ,sharing meals as I was informed by the Petitioner that he works in Sydney and we were communicating through phone .I still consider him as my husband.[10] (as per original)

1. Below that printed text in handwriting is "till August 2023".
2. Ms Sykora deposed in April 2024 that:

My Husband [Mr Paquet] came in February 2023 and stayed with me at [Suburb C] Property ,he tried to patch up with me as he wanted to avoid the voluntarily abondenment clause Money the Trial judge was about to announced. He said he will take care of me in same house .He reconciled with me in that period and returned to Sydney for work .And called me inbetween to discuss the sale proceeds and came to [Suburb C] property Lived with me as a husband in same room . He disconnected with me on 17th August 2023 .We shared meals and discussed about our future plans My mother [Ms H] is a witness to our stay whenever he came and reconciled .we spoke on phone till 17th August 2023.I consider it as reconciliation period.[11] (as per original)

That on or about 1 October 2022 he disappeared however told my previous solicitor on 22 December 2022 that he had returned to Australia and was living In Sydney.

That in October 2022 the Respondent had me removed from the home by police. I obtained support from [J Service] who assisted me to apply for an Intervention Order and the Respondent was ultimately removed from the home and he took a number of items with him including TV and wifi.

That in February 2023 the Respondent returned to the [Suburb C] home and we resided separately under the one roof.[12]

1. In April 2024, she sought to explain the differences in the evidence quoted in the previous paragraphs by deposing that her former solicitor "has written about separation clause by error and in the same Page I mentioned about his stay and reconciliation."[13] None of Ms Sykora's written evidence is consistent with her response that the parties did not separate until May or August 2023.
2. Mr Paquet challenged Ms Sykora on her evidence in cross-examination. Her evidence was difficult to follow. She gave oral evidence that the parties were living together for 28 days in February 2023 and the parties had a relationship after he moved to Sydney. Contrary to any suggestion that they had separated prior to that, she gave oral evidence that Mr Paquet came home in February 2023 to patch the relationship up.
3. Mr Paquet deposes that he was in Sydney from February 2023 until May 2023. He also gives evidence that he was overseas from May 2023 until September 2023. He supports that evidence by reference to bank records. He was not challenged on that evidence. I am not satisfied Mr Paquet's initial failure to recall a Statutory Declaration signed by him in 2019 renders his unchallenged evidence in relation to the separation date unreliable.
4. Given the inconsistencies in Ms Sykora's evidence, and Mr Paquet's unchallenged evidence supported by corroborating documents, I am not satisfied that the parties continued or resumed their martial relationship after October 2022. I do not feel an actual persuasion of the existence of that fact.[14]
5. I accordingly find that the parties separated in October 2022 and thereafter lived separately and apart. The ground for divorce is accordingly established, and the application granted.[15]
6. Ms Sykora sought that I delay the delivery of this judgment by three months until the conclusion of the property proceedings between the parties. I find no reason to do so.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass.

[1] Family Law Act 1975 (Cth), ss 39(3).

[2] Henry & Henry [1996] HCA 51; (1996) 185 CLR 571 ("Henry") at 587 citing Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 at 564-5 and quoting Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 at 247.

[3] Diamond & Diamond (2024) FLC 94-223 at [23].

[4] Talwar & Sarai [2018] FamCAFC 152; (2018) FLC 93-855 at [36]; Pathak & Hardikar [2022] FedCFamC1A 163; (2022) FLC 94-111 at [17-18].

[5] Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 233 CLR 331 at [115]; Deputy Commissioner of Taxation v Shi [2021] HCA 22; (2021) 273 CLR 235 at [31].

[6] Henry & Henry [1996] HCA 51; (1996) 185 CLR 571 at 578 and quoting Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 at 558.

[8] Affidavit of Ms Sykora filed 21 October 2024, paragraph 13.

[10] Response to Application for Divorce filed 2 April 2024, page 2.

[11] Affidavit of Ms Sykora filed 10 April 2024, page 1.

[12] Affidavit of Mr Paquet filed 27 June 2024, page 24.

[13] Affidavit of Ms Sykora filed 10 April 2024, page 1.

[14] Keane & Keane & Anor [2021] FamCAFC 1; (2021) 62 Fam LR 190 at [73] and the cases here cited.

[15] Family Law Act 1975 (Cth), s 48 and s 49.