Sarto & Sarto (No 2) [2025] FedCFamC1A 142 (14 August 2025)

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 the pseudonym Sarto & Sarto has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 16 April 2025 a magistrate of the Magistrates Court of Western Australia summarily dismissed an application brought by the applicant under s 79A(1)(a) of the Family Law Act 1975 (Cth) ("the Act"). The applicant is seeking to appeal that decision.
2. Property settlement orders were made by consent on 25 May 2023 dividing the parties' property between them. On 3 December 2024 the applicant filed his application to set aside those orders.
3. He was required to plead his case, which he did.
4. The Statement of Claim filed 28 February 2025 asserted that:
   • On 9 May 2023 the respondents' father changed his will;
   • The respondent was appointed as an executor and trustee; and
   • The respondent was named in the will as a beneficiary.
5. It was therefore claimed that from 9 May 2023 the respondent "had a vested interest in the estate", a "certain and imminent" inheritance and "a legal obligation to disclose this fact" (applicant's Statement of Claim filed 28 February 2025).
6. It is common ground that the respondent did not disclose the will prior to the consent orders being made.
7. The respondent's father died in early 2024.
8. The failure to disclose the will was said to lead to a miscarriage of justice within the meaning of s 79A(1)(a).
9. At the hearing of the respondent's application for summary dismissal of the proceedings, the will was before the Court. The respondent was one of three trustees and executors. The entire estate was bequeathed to the respondent's mother, provided she lived for 30 days after the testator's death. If she did not, then, relevantly, the respondent would receive one third of the estate.
10. The unchallenged evidence was that the respondent's mother outlived the father by the requisite 30 days.
11. The magistrate referred to r 163 of the Family Court Rules 2021 (WA) ("the Rules") which provides that summary orders may be made if there is no reasonable likelihood of success.
12. Her Honour then said:
    1. I am not satisfied that the [applicant] has articulated any basis upon which the death of the [respondent's] Father could render the final property orders unjust or require them to be set aside. I cannot see that there is any evidence that the [respondent] has obtained any financial benefit from her Father's estate. The evidence is that the estate passed to her Mother. The [applicant's] case is that whilst that might be what the documents say there is something else going on in real terms, but there is no evidence to support this assertion.
    2. I am not satisfied that the alleged non-disclosure of the will is a reason for the proceedings to continue. I am not satisfied that the [respondent] was deficient in complying with her obligations to provide financial disclosure in the earlier proceedings when she did not provide a copy of her Father's Will. I am not satisfied that the [respondent's] Father's health was relevant to the earlier property settlement proceedings.

1. Although a summary dismissal ends the applicant's proceedings, it is still regarded as an interlocutory order requiring leave to appeal (see Ebner & Pappas [2014] FamCAFC 229; (2014) FLC 93-619 ("Ebner & Pappas") at [29]-[33]).
2. Leave to appeal will be refused as no sufficient doubt about the correctness of the decision has been identified (Ebner & Pappas at [39]; Medlow & Medlow (2016) FLC 93-692 at [57]).

1. Before turning to the grounds of appeal it is appropriate to record that many of the applicant's submissions proceeded on the basis that if it was established that a relevant document had not been disclosed, that was sufficient to bring an end to the claim for summary dismissal and that any consideration of whether there was a miscarriage of justice was a matter for the final hearing. That is not so. If there were no reasonable prospects of success in establishing a miscarriage of justice, even if there was non-disclosure, that would be a basis for summary dismissal.

Ground 1: Did the magistrate err in law by referring to the wrong statutory test and denying the applicant procedural fairness?

The learned Magistrate erred in law by:

(a) Applying Family Court Rules 2021 (WA) r.163(d) ("no reasonable likelihood of success") as referenced, at paragraph [4] of the written reasons, rather than the correct statutory test at s.102QAB of the Family Law Act 1975 (Cth) ("no reasonable prospect of success");

(b) Denying the self-represented [applicant] procedural fairness by:

(i) Failing to provide adequate time to respond to written submissions served immediately before the hearing and containing fundamental errors including by reference to a non-existent "Section 45A of the Family Law Act 1975";

(ii) Failing to identify or correct the incorrect statutory references in the Respondent's submissions;

(iii) Failing to apply procedural safeguards appropriate to the needs of the [applicant] as a self-represented litigant in proceedings.

And there is a realistic possibility that the decision made by her Honour could have been different if these errors had not occurred.

1. The ground is confusing as it both asserts an error of law and a denial of procedural fairness, which are entirely distinct grounds of appeal. However, part way through the hearing, counsel for the applicant indicated Ground 1(a) was no longer pressed and I therefore only need to deal with the procedural fairness ground.

Was the applicant denied procedural fairness?

1. Three separate errors are alleged.
2. The first is that the applicant, who was acting for himself, was not allowed adequate time to give regard to the respondent's written submissions, which were received by him immediately prior to the hearing.
3. At the hearing, the applicant acknowledged that he had received the documents an hour and a half earlier. The matter was then stood down briefly.
4. Counsel for the respondent addressed the Court first. When his turn came, the applicant did not seek an adjournment to prepare but launched immediately into his submissions. In the course of those submissions, the applicant addressed matters raised by the respondent. When he had finished, the applicant was asked if there was anything else, to which he said no.
5. I am quite unable to see any procedural unfairness at all, let alone a material one. The applicant made all of the submissions that he wished to make.
6. The second aspect is that the primary judge denied the applicant procedural fairness by failing to correct errors in the respondent's written submissions. The error in the submissions was a reference to s 45A of the Act where it had been recently repealed and replaced by s 102QAB. The provisions are in similar terms. Further, the magistrate relied on r 163 of the Rules, not the section of the Act so no harm was done.
7. I do not see how a failure to correct errors in one party's submissions amounts to an error in law.
8. The Summary of Argument asserted that the magistrate failed to explain the test for summary judgment to the applicant. The relevant principles were set out in the respondent's written submissions and repeated in oral submissions. I am not sure what benefit there would have been in them being repeated further.
9. The applicant's submissions focussed primarily on his assertions that the respondent had actually obtained a vested interest in her father's estate which she had failed to disclose. That was quite proper as it was the point in contention.
10. Again, I see no procedural unfairness, let alone a material one.
11. Finally, Ground 1 asserts a failure to apply "procedural safeguards appropriate to the needs of the [applicant] as a self-represented litigant". Quite frankly, I do not know what that means.
12. Ground 1 fails.

Ground 2: Did the magistrate fail to take the applicant's evidence "at its highest"?

1. It is well established that a court hearing a claim for summary dismissal does not resolve disputed facts but takes the applicant's case at its highest (Munnings v Australian Government Solicitor [1994] HCA 65; (1994) 118 ALR 385 at 388-389; Bigg v Suzi [1998] FamCA 14; (1998) FLC 92-799; Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at [608]).
2. The failure of the magistrate is said to be (applicant's Summary of Argument filed 4 July 2025, paragraph 11):
   • Making no reference to the mental capacity of the respondent's mother as at 9 May 2023;
   • Making no reference to the "coincidental" timing of the will and a Power of Attorney; and
   • Failing to assess whether that timing constituted evidence of "strategic estate planning" requiring disclosure.
3. These are submissions, not facts. It is only assertions of the latter that are to be taken at their highest otherwise proceedings could never be dealt with summarily.
4. I do not understand the relevance of the respondent's mother's mental capacity. She was a beneficiary under a will regardless of that capacity.
5. In addition to the respondent's father executing the will on 9 May 2023, the respondent's mother appointed the respondent as her attorney on the same date. I do not understand at all what is meant by "coincidental timing" or "strategic estate planning, relevant to the Respondent's disclosure obligations" (applicant's Summary of Argument filed 4 July 2025, paragraph 11).
6. Throughout the course of the hearing, counsel for the applicant sought to explain these phrases in various ways:

[HIS HONOUR]:In what way was it relevant to the property dispute?

[COUNSEL FOR THE APPLICANT]: It was relevant to the property dispute, your Honour, because a power of attorney, we say, is an interest in the nature of a chose in action that points to significant estate planning, succession planning going on in the background that materially affected the future interests of the then applicant wife that occurred some weeks before the settlement was reached between the parties.

...

[HIS HONOUR]: ... What value would you put on the power of attorney if you were doing a balance sheet?

[COUNSEL FOR THE APPLICANT]: For the purposes of the summary dismissal position your Honour, the question before the Court on the summary dismissal application was whether or not there was fraud in the form of non-disclosure by the [respondent]. The non-disclosure is as significant as the content of the rights that were not disclosed.

...

[HIS HONOUR]: Well I don't get anything out of the statement of claim or these paragraphs of the affidavit, (a), that refer to asset planning but, (b), I don't understand your constant references to asset planning as if it is something bad, improper, or something that needed to be disclosed. The asset planning is by the father as to his assets. If he gave those assets to the respondent prior to the consent orders and she didn't disclose them we wouldn't be here. But just because there was asset planning doesn't mean the respondent gained an advantage, that's the connection I'm missing.

[COUNSEL FOR THE APPLICANT]: On 9 May 2023, the will was redrafted by the father at the same time as an enduring power of attorney.

[HIS HONOUR]: Yes.

[COUNSEL FOR THE APPLICANT]: Three weeks later the [applicant] and respondent executed the consent orders which specifically exclude choses in action. That evidence was before the learned magistrate not the enduring power of attorney but the will and the exclusion of choses in action. This is demonstrative of asset planning in the context of a large family property settlement.

[HIS HONOUR]: Well they - as I said, the father can plan to do with his assets whatever he likes. So what is the problem with asset planning? Sensible people do it.

[COUNSEL FOR THE APPLICANT]: Yes your Honour. If it's done in the shadow of family law proceedings and it's not disclosed then the question arises as to whether or not there has been some fraud on the party who is unaware of those facts who is signing the consent agreement.

[HIS HONOUR]: And now you've got the documents what difference would it have made?

[COUNSEL FOR THE APPLICANT]: The difference it would have made your Honour is that further disclosure would have been sought.

[HIS HONOUR]: Of what?

[COUNSEL FOR THE APPLICANT]: Of whether or not this was defensive asset planning.

[HIS HONOUR]: Well assume it was - assume it was by the father?

[COUNSEL FOR THE APPLICANT]: Then taking it at its highest your Honour it indicates assets were being shielded in the last weeks, months, years.

[HIS HONOUR]: Assets that the father had and continued to hold at the time?

[COUNSEL FOR THE APPLICANT]: Yes.

1. This ground is not made out. The position remains, quite simply, that the respondent did not acquire rights under either the will or the power of attorney that had a monetary value or were capable of division.

Ground 3: Did the magistrate make an impermissible merits assessment?

1. After the passages which I have already quoted, her Honour said:
   1. I am not satisfied that any ground under section 79A(1)(a) will be established, and I am not satisfied that the [applicant's] application discloses any arguable basis for setting aside the final orders. I do consider it appropriate that the application be summarily dismissed, and that is the order that I will make.
2. As I understand the applicant's case, he sought to set aside the property orders because the respondent had failed to disclose a financial interest she had obtained from her father's will, thus giving rise to a miscarriage of justice under s 79A(1)(a) of the Act.
3. At [7] her Honour found that the respondent acquired no such interest. At [8], for that very reason, her Honour found there was no basis for disclosure of the will. It follows that the applicant could not succeed on his claim, which accordingly should have been dismissed. The logic is impeccable and inexorable.
4. Except in exceptional cases, such as mutual wills, a beneficiary under a will obtains no property interests in the property of the deceased. Even after the testator dies, the beneficiary acquires no interest in property until an interest vests in them. Until that time, the right is simply one as to proper administration.
5. The ground is misconceived in any event. The primary judge was making an assessment of the merits of the applicant's case, not to determine whether it would succeed or not but to determine whether it had reasonable prospects of success. The merits assessment is essential but different in each case.
6. This ground fails.

Ground 4: Did the magistrate err in failing to find that the non-disclosure of the enduring power of attorney meant there was a deficiency in disclosure?

1. The submission is that her Honour failed to consider whether the enduring power of attorney "created rights or interests (specifically, a legal or equitable chose in action, legally subject to supervision, account or, potentially, capable of assignment)" (applicant's Summary of Argument filed 4 July 2025, paragraph 18(a)). The applicant further submitted that the power of attorney granted the respondent a "new, distinct chose in action" apparently akin to a gift (applicant's Summary of Argument filed 4 July 2025, paragraph 17).
2. The applicant sought to adduce the power of attorney into evidence on the appeal (Application in an Appeal filed 11 July 2025).
3. The power was executed by the respondent's mother on 9 May 2023, the same day as her father executed his will. It was an enduring power of attorney in unremarkable form.
4. The applicant asserts that this document, along with the will, should have been disclosed by the respondent. This is because they were both part of "strategic estate planning". As I said earlier, I am not sure what that means or why such planning requires the disclosure of the documents. The respondent's father was entitled to do as he pleased with his property.
5. To make good the submissions noted at [35], the applicant submitted that the power of attorney was a chose in action and therefore should have been disclosed. This was because, at least in part, the attorney was empowered to recover her reasonable expenses from her mother's assets.
6. To support these propositions, the applicant relied on the following from Smith v Smith [2017] NSWSC 408:
   1. An enduring power of attorney needs to be located in the context of the general protective jurisdiction of the Court if its nature and limitations are to be properly understood. An enduring attorney can, by the nature of his, her or its office, comfortably fit within the "general rule" (of which the Countess of Bective Case and Clay v Clay speak) "that guardians of infants, committees of the person of lunatics, and others who are entrusted with funds to be expended in the maintenance and support of persons under their care are not liable to account as trustees".
   2. If they are to do so, however, care needs to be taken to notice the High Court's warning that the terms and purpose of the appointment of a "guardian" (using that expression generically) must be consulted in deciding whether such a person should be called upon to account for dealing with the property of a person under protection.
   3. Locating an enduring power of attorney in this world may require recognition that:
      1. the protective jurisdiction (and, semble, depending the terms of the instrument, an enduring power of attorney engaged after a donor's loss of mental capacity) exists for the benefit of the person in need of protection, the donor, but takes a large and liberal view of what that benefit is: Theobald, The Law relating to Lunacy (1924), page 380; but
      2. parties need to understand that, in a case involving any doubt, the means exist for the protection of all concerned by a timely application (usually, most cost-effectively) to the Guardianship Division of NCAT, or (exceptionally) to the Court, for a review of the case or by engagement with the NSW Trustee.
   4. Although the Court (or, exercising statutory jurisdiction, NCAT or the NSW Trustee) may take a "liberal" view of what is for the benefit of an incapable person on an exercise of protective jurisdiction, that, of itself, provides no licence for a fiduciary to enjoy (in, and for, the due performance of his or her fiduciary obligations towards an incapable person) anything other than a small benefit incidental to the incapable person's enjoyment of his or her own property. Upon an exercise of protective jurisdiction, the Court is always mindful (as must be NCAT and the NSW Trustee) of preserving the estate of a person under its protection for the use and enjoyment of that person: W v H [2014] NSWSC 1696 and JPT v DST [2014] NSWSC 1735, citing Ex parte Whitbread in the Matter of Hinde, a Lunatic [1816] EngR 868; (1816) 2 Mer 99; 35 ER 878.
   5. Ultimately, in the interplay between the Court's protective and equitable jurisdictions, the scope of a fiduciary duty attaching to the performance of the office of an enduring attorney must be moulded according to the nature of the relationship between principal and attorney and the facts of the case: Clay v Clay (2001) 202 CLR 410 at 432-433[46], citing Hospital Products Limited v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 at 102 and Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449 at 463-464; Downie v Langham [2017] NSWSC 113.

1. That case concerned an asserted breach of an attorney's fiduciary duty. The receipt of "a small benefit incidental to the incapable person's enjoyment of his or her own property" does not describe property in the hands of the attorney.
2. In Norman v Federal Commissioner of Taxation [1963] HCA 21; (1963) 109 CLR 9, Windeyer J described a chose in action as "an existing legal right" as opposed to "a mere expectancy or possibility of a future right" (at 26). His Honour added, "A legal right to be paid money at a future date is, I consider, a present chose in action, at all events when it depends upon an existing contract on the repudiation of which an action could be brought for anticipatory breach" (at 26).
3. The applicant would say that the recipient of a power of attorney has an existing legal right to recover from the estate of the donor, reasonable expenses as well as the enjoyment of incidental benefits.
4. Those expenses, however, must be incurred for the benefit of the donor and are in effect incurred by the donor themselves. The attorney could not use funds otherwise than in payment of these expenses, otherwise they would be in breach of his or her fiduciary duty. The attorney is using the donor's fund solely for the donor's benefit.
5. Therefore, a power of attorney is a delegation of power and authority and not a transfer or creation of property rights.
6. So understood, the power of attorney was not relevant to the property dispute between the parties and did not need to be disclosed.
7. Further, the applicant suspected that a power of attorney might exist and prior to the hearing before the magistrate, he asked the respondent about it. The answer he received prior to the hearing did not purport to deny the existence of the document but disputed its relevance.
8. The applicant referred to the power of attorney in his submissions to the magistrate.
9. As the document existed prior to the hearing and the applicant reasonably suspected its existence, it could have been required to be produced at the hearing. That consideration speaks against it being received on appeal.
10. Finally, no mention of the power was made in the applicant's Statement of Claim.
11. These matters combine to persuade me that the Application in an Appeal should be dismissed.
12. This ground must therefore fail.

1. No ground of appeal has enjoyed any merit. It follows that the appeal will be dismissed.
2. As is the practice, submissions on costs were taken at the close of the hearing of the appeal. Senior counsel for the respondent sought an order that, in the event the appeal was unsuccessful, the applicant would pay the respondent's costs calculated in accordance with the scale in Sch 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
3. Counsel for the applicant first indicated that the applicant resisted such an order, instead suggesting the parties should bear their own costs. He then modified his position to "the usual orders" and acknowledged the applicant understood he would potentially bear the other party's costs if the appeal was not successful.
4. The respondent sought costs of $12,000. The applicant had no submissions to make as to quantum.
5. The appeal has been entirely unsuccessful and I am satisfied it is appropriate for the applicant to pay the costs of the respondent in the sum claimed.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge.