Gardon & Zhang

[2021] FamCA 484

FAMILY COURT OF AUSTRALIA

Gardon & Zhang [2021] FamCA 484

File number(s):

SYC 4528 of 2021

Judgment of:

HARPER J

Date of judgment:

24 June 2021

Catchwords:

FAMILY LAW – PROPERTY – Injunction – Ex Parte orders for preservation of assets – where parties were in long term de facto relationship – where the New South Wales Trustee and Guardian has been appointed to the estate of the Applicant – Where respondent held applicant’s power of attorney – Where respondent removed as attorney by the New South Wales Civil and Administrative Tribunal – Where New South Wales Trustee and Guardian appointed as Case Guardian for the applicant.

Legislation:

Family Law Act 1975 (Cth)

Family Court Rules 2004 (Cth)

Number of paragraphs:

16

Date of hearing:

24 June 2021

Place:

Sydney

Solicitor for the Applicant:

Katsikaris Family Lawyers

Solicitor for the Respondent:

No Appearance

ORDERS

SYC 4528 of 2021

BETWEEN:

TRUSTEE AND GUARDIAN FOR MR GARDON

Applicant

AND:

MS ZHANG

Respondent

ORDER MADE BY:	HARPER J
DATE OF ORDER:	24 JUNE 2021

AMENDED on 7 July 2021 pursuant to r.17.02 of the Family Law Rules 2004 (Cth)

THE COURT ORDERS THAT:

1.By no later than close of registry filing on 24 June 2021, the Applicant file and serve an Affidavit of Service demonstrating service upon the Respondent of the Application and Affidavits upon which he relies.

THE COURT NOTES THAT:

A.For the purpose of these orders the phrase "Remaining Suburb B sale proceeds" means the net proceeds of sale of the property known as and located at C Street Suburb B, being the whole of the land contained in the folio identifier ..., less the sum of $429,000 paid by the Respondent towards the Applicant's present accommodation.

B.For the purpose of these orders the phrase “Applicant’s property” means all property which the applicant owns or controls including real estate, personalty, choses in action, shares, options, rights in companies, business assets, funds, monetary benefits, pension or superannuation rights, insurance policies, mutual funds and any other right whether by law or an agreement, whether tangible or intangible, (including intellectual property and intellectual property rights), whether contingent or held and/or any other existing or future rights of any kind of type.

C.For the purpose of these orders the phrase “Respondents property” means all property which the respondent owns or controls including real estate, personalty, choses in action, shares, options, rights in companies, business assets, funds, monetary benefits, pension or superannuation rights, insurance polices, mutual funds and any other right whether by law or an agreement, whether tangible or intangible, (including intellectual property and intellectual property rights), whether contingent or held and/or any other existing or future rights of any kind or type.

THE COURT FURTHER ORDERS THAT:

2.Pending further order, the Respondent be restrained by injunction from:

(a)Removing from the state of New South Wales or the Commonwealth of Australia, or in any way causing or permitting the encumbrance or disposition in any manner of the remaining Suburb B sale proceeds.

(b)Removing from the state of New South Wales or the Commonwealth of Australia or transferring, assigning or alienating any of the Respondent's property.

(c)Removing from the state of New South Wales or the Commonwealth of Australia or transferring, assigning or alienating any of the Applicant's property.

3.In relation to Order 2(b) the Respondent may utilise her property for the purposes of ordinary living expenses or in the payment of reasonably incurred legal fees.

4.The proceedings be stood over to the first available date before a Senior Registrar for further management of the matter.

5.The NSW Trustee and Guardian be appointed as the Case Guardian for the Applicant pursuant to the Family Court Rules (Cth) 2004.

6.Leave be granted to the Applicant to issue up to 7 subpoenas.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gardon & Zhang has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

HARPER J

1. In proceedings SYC4528 of 2021, there came before me on 21 June 2021 in a judicial duty list an application in which the New South Wales Trustee and Guardian, appointed to the estate of the applicant Mr Gardon, sought ex parte orders for preservation of the Applicant's assets and appointment of a Case Guardian.

2. On that occasion, I made orders for the service of the Applicant's material by no later than 12 noon on 22 June 2021 and listed the proceedings for mention on 24 June 2021 at 10 am.  A specific notation was made that the Court would consider making ex parte orders on the return date in the event that service was proved and there was no appearance by the Respondent.

3. On 24 June 2021, by reason of a fresh outbreak of the COVID-19 virus in the Greater Sydney area, the hearing was conducted by Microsoft Teams.  For more abundant caution, I had the matter called outside the courtroom in the precincts of the Court at 10.15 am, and there was no appearance by the Respondent.  There was no appearance by the Respondent electronically through Microsoft Teams.

4. Mr Katsikaris, who appeared instructed by the New South Wales Trustee and Guardian, informed me that service upon the Respondent had initially been sought to be effected by serving her solicitor; however, that solicitor informed the Applicant's solicitors that they no longer acted for the Respondent.  Personal service was then effected upon the Respondent, and, as at 10.15 am on 24 June 2021, an affidavit was under preparation by the process server deposing to that service taking place.

5. In light of the urgent circumstances to which I will refer in more detail shortly, I am satisfied, from what I have been told, that service has been effected, and I will direct the filing of an affidavit of service by the process server by no later than 4 pm today.

6. The Applicant relies upon an affidavit of Ms D, an affidavit of Mr Jason Katsikaris and an affidavit of Ms F.  That evidence, in combination, satisfies me that there is a strong prima facie case for the following reasons.

7. The Respondent, for a period between 2012 and August 2020, enjoyed the position of the Applicant's attorney pursuant to a power of attorney.

8. On 11 August 2020, the New South Wales Civil and Administrative Tribunal determined that the Respondent be removed as the Applicant's attorney on the basis of findings that she had likely misappropriated the Applicant's financial resources, had failed to act in the Applicant's best interests and did not understand her responsibilities as an attorney.  It was also found, according to the evidence, that the Respondent did not diligently keep appropriate accounting records, did not have the skills, experience and capacity to act as an attorney and that her duty to the Applicant conflicted with her own financial interests.

9. The evidence demonstrates that whilst the Applicant once enjoyed fairly substantial financial resources, as at 24 June 2021, those resources have been significantly depleted. 

10. The Applicant himself is now severely disabled and currently resides at G Centre at Suburb H, where he is under full-time care.

11. The evidence discloses that the only funds currently available to the Applicant are the balance of his Westpac joint account, being $145; the balance of an OPC Trust Account, being $6074; and the balance of the Applicant's entitlements in a J Group allocated pension fund, being $92,549.  According to the evidence, $650 is drawn down each week from the Applicant's entitlements in the J Group allocated pension fund to meet his weekly expenses, which total approximately $539, including a daily accommodation payment in the sum of $369.  The New South Wales Trustee and Guardian applies the excess of funds drawn from the Applicant's J Group allocated pension fund into the OPC trust account. 

12. The Applicant also has a Refundable Accommodation Deposit in his full name for his full-time care in the sum of $710,000.  This deposit would be refunded to the Applicant, less any amounts deducted for management fees and such like, in the unlikely event that he leaves the Anglicare facility and would be paid in the Applicant's estate upon his death. 

13. The evidence satisfies me that in 2020, on several occasions, the family members of the Applicant have sought information from the Respondent about his financial affairs which has not been satisfactorily provided by the Respondent.  In the circumstances, I consider it appropriate to make orders in the absence of the respondent on an ex parte basis to preserve what little remains of the Applicant's financial resources.

14. Whether or not the New South Wales Trustee and Guardian will be able to recoup moneys, if it is demonstrated that should happen, from the Respondent is a question which will have to await determination at a later point in time.  I note, however, that the New South Wales Trustee and Guardian, on behalf of the Applicant, has commenced proceedings in this Court on the basis of a de facto relationship between the Applicant and the Respondent.  The circumstances giving rise to the de facto relationship, on the evidence so far provided, do not seem to be seriously in dispute.

15. The Application which has been filed on the Applicant's behalf seeks a range of orders that include orders in the nature of a property adjustment between the Applicant and the Respondent pursuant to the provisions of the Family Law Act 1975 (Cth).

16. Accordingly I make the orders set out at the commencement of these reasons.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper.

Associate:

Dated:       6 July 2021