Sarto & Sarto (No 2)

Case [2025] FedCFamC1A 142

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

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

Appeal from: Sarto and Sarto [2025] FCWAM 120
Appeal number: NAA 209 of 2025
File number: PTW 5629 of 2021
Judgment of: ALDRIDGE J
Date of judgment: 14 August 2025
Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Summary dismissal of the applicant’s application in the Magistrates Court of Western Australia to set aside property orders – Where the applicant claims the respondent failed to disclose a property interest under a will and a power of attorney prior to the parties entering consent orders – Alleged procedural unfairness – Claims the magistrate failed to take the applicant’s case at its highest – Where it is only assertions of facts that are to be taken at their highest – Where the magistrate followed the ordinary course – Discussion of whether a power of attorney gives rise to property rights capable of division – No error identified – Leave to appeal refused – Appeal dismissed – Applicant to pay the respondent’s costs.
Legislation:

Family Law Act 1975 (Cth) ss 45A, 79A, 102QAB

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3

Family Court Rules 2021 (WA) r 163

Cases cited:

Bigg v Suzi (1998) FLC 92-799; [1998] FamCA 14

Ebner & Pappas (2014) FLC 93-619; [2014] FamCAFC 229

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Munnings v Australian Government Solicitor (1994) 118 ALR 385; [1993] HCA 66

Norman v Federal Commissioner of Taxation (1963) 109 CLR 9; [1963] HCA 21

Smith v Smith [2017] NSWSC 408

Webster v Lampard (1993) 177 CLR 598; [1993] HCA 57

Number of paragraphs: 65
Date of hearing: 31 July 2025
Place: Heard in Perth, delivered in Sydney
Counsel for the Applicant: Dr Huntly
Solicitor for the Applicant: Hammond Legal
Counsel for the Respondent: Mr Hooper SC
Solicitor for the Respondent: FMD Legal

ORDERS

NAA 209 of 2025
PTW 5629 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR SARTO

Applicant
AND:

MS SARTO

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

14 AUGUST 2025

THE COURT ORDERS THAT:

1.The Application in an Appeal filed 11 July 2025 is dismissed.

2.Leave to appeal is refused.

3.The appeal is dismissed.

4.The applicant pay the respondent’s costs fixed in the sum of $12,000 within 28 days.

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 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…

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AGLC
Sarto & Sarto (No 2) [2025] FedCFamC1A 142
Case
[2025] FedCFamC1A 142
Decision Date

CaseChat Overview and Summary

Mr Sarto sought leave to appeal a decision of the Magistrates Court of Western Australia which dismissed his application to set aside property orders. He argued that the magistrate erred by not considering the case at its highest, by not acknowledging the respondent’s failure to disclose a property interest under a will and a power of attorney prior to the parties entering into consent orders, and by not assessing the alleged strategic estate planning as evidence of a need for disclosure. The appeal was dismissed and the applicant was ordered to pay the respondent’s costs. The court found that it was 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. The court found that the magistrate followed the ordinary course and did not make any error. The court also found that a power of attorney does not give rise to property rights capable of division.

Orders

Orders of the court

NAA 209 of 2025

PTW 5629 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR SARTO

Applicant

AND:

MS SARTO

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

14 AUGUST 2025

THE COURT ORDERS THAT:

1. The Application in an Appeal filed 11 July 2025 is dismissed.

2. Leave to appeal is refused.

3. The appeal is dismissed.

4. The applicant pay the respondent’s costs fixed in the sum of $12,000 within 28 days.

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 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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Ground 1 fails.Ground 2: Did the magistrate fail to take the applicant’s evidence “at its highest”? 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) 118 ALR 385 at 388–389; Bigg v Suzi (1998) FLC 92-799; Webster v Lampard (1993) 177 CLR 598 at [608]). 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. 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. 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. 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). 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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