Sturnela v Sturnela - [2025] SASC 46

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
STURNELA v STURNELA
[2025] SASC 46
Judgment of the Honourable Justice Stein
4 April 2025
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - FAILURE TO EXERCISE DISCRETION
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - JUDGE MISTAKEN OR MISLED
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - INJUSTICE
Appeal against interlocutory decision of an Associate Justice.

In 1996, the appellant was awarded a sum of damages following litigation arising from injuries sustained in a motor vehicle accident. In 1998, he was made subject to a protection order and the Public Trustee appointed as manager of his estate pursuant to the Aged Care and Infirm Persons’ Property Act 1940 (SA) (the “Act”). A portion of these funds were utilised to purchase a home for the appellant where he lived with the respondent and their children. In 2017, the applicant and respondent separated. In 2023, by order of this Court, the property was sold and the net proceeds of sale paid into the Suitors’ Fund. In 2023, the respondent commenced property settlement proceedings in the Federal Circuit and Family Court of Australia (the “FCFCOA”) against the appellant.
The appellant brought an interlocutory application seeking payment out of the Suitors’ Fund of $200,000 on account of the appellant’s various expenses which he contended could not be met out of the funds held for him by the Public Trustee. The Associate Justice refused the application on grounds including that the funds constituted an asset that had to be considered in the property settlement proceedings; that it was not possible to resolve many of the factual disputes as between the parties; and, that the FCFCOA was better equipped to be deal with the question of the division of monies.
The appellant appealed on the ground that the Associate Justice erred in the exercise of the discretion. The respondent contended the appeal should be allowed solely on the condition that a mutual and equal distribution of $200,000 is paid contemporaneously to her or otherwise it be dismissed. The Public Trustee supported the appeal.
Held (granting leave to appeal, allowing the appeal and re-exercising the discretion):
1.Process errors were occasioned by the Associate Justice taking into account irrelevant considerations and failing to take into account relevant considerations. The errors arose as a direct consequence of the manner in which the application was conducted at first instance.
2.Leave to appeal should be granted as allowing the decision to stand would work a substantial injustice to the appellant given the nature of the decision, while interlocutory, would in a practical sense preclude any subsequent application. The potential existence of an avenue for the appellant to seek an alternate remedy in a different jurisdiction does not ameliorate such injustice.
3.It is appropriate in all of the circumstances to re-exercise the discretion and to order payment out of the Suitors’ Fund in the amount of $200,000 to the Public Trustee as the manager of the protected estate of the appellant. It is not appropriate to order the payment out of funds to the respondent in circumstances where no such application was made.

Aged Care and Infirm Persons’ Property Act 1940 (SA) ss 7, 10, 13, 18; Uniform Civil Rules 2020 (SA) rr 114.4, 213.1, 217.10, 217.11; Family Law Act 1975 (Cth) s 79, Part VIII; Trustee Act 1936 (SA) s 18; Supreme Court Act 1935 (SA) s 119, referred to.
In the Marriage of O’Brien (1982) 8 Fam LR 691; House v The King (1936) 55 CLR 499; Harmer v Federal Commissioner of Taxation (1991) 173 CLR 264; Strahan v Strahan (2009) 241 FLR 1; Angelou v Brandenburg [2025] SASC 15; Rankine v State of South Australia [2022] SASCA 18; Jeavons v Chapman (No 2) [2009] SASC 3; Public Trustee v Hill and McFarlane (1993) 174 LSJS 48; Re Permanent Trustee Aust Ltd (1997) 137 FLR 190; Porker v Porker [2007] SASC 217; In the Marriage of Holmes (1988) 12 Fam LR 331; Re Chemaisse; Commissioner of Taxation (Cth) (Intervener) (1989) 13 Fam LR 724; Duncan v National Australia Bank [2006] SASC 239, considered.

STURNELA v STURNELA
[2025] SASC 46
Single Judge Appeal: Civil

STEIN J: Mr Sturnela seeks leave to appeal against an order refusing an application for payment out of $200,000 from the Suitors’ Fund. For the reasons I set out below, I grant leave to appeal and allow the appeal. The Associate Justice failed to take into account relevant considerations and took into account irrelevant considerations as a direct consequence of the way in which the matter was run before the Associate Justice. I exercise the discretion to allow the application and approve a payment out of $200,000 from the Suitors’ Fund to the Public Trustee as manager of Mr Sturnela’s protected estate.
Background
In 1996, Mr Sturnela was involved in a motor vehicle accident causing him permanent brain injuries. Mr Sturnela was awarded approximately $730,000 in damages for the injury he sustained and, in 1998, the Public Trustee was appointed as his manager under the provisions of the Aged Care and Infirm Persons’ Property Act 1940 (SA) (the “Act”) by order of the Supreme Court. In 1999, a property in Burnside was purchased in Mr Sturnela’s sole name for $210,000 from damages awarded to him from his motor vehicle accident. Mr Sturnela was registered on the Certificate of Title.
In 2000, Mr Sturnela and the respondent, Ms Sturnela, were married. They had cohabitated from October 1995. Two children were born of the relationship and, in January 2017, Mr and Ms Sturnela separated.
In June 2022, Mr Sturnela appointed his father, Mr Vince Sturnela, as his power of attorney.
In March 2023, Ms Sturnela lodged a caveat over the Burnside property.
In 2023, Mr Vince Sturnela, without notice to the Public Trustee, executed a contract of sale for the Burnside property with settlement scheduled to occur on 28 November 2023.
On 15 November 2023, the Public Trustee urgently applied for Court approval to sell the Burnside property.
Accompanying the application of the Public Trustee for permission to sell the property were affidavits in support which set out the circumstances of the purchase of the Burnside property and then the entry into the contract of sale. The affidavits also referred to the family law proceedings. The affidavit of Mr Vince Sturnela sworn on 24 November 2023 referred to the Court determining the destination of the monies in the interests of protecting them. The affidavit referred to seeking suitable rental accommodation for Mr Sturnela in which he might reside until issues were resolved with Ms Sturnela in relation to any interest she may have and thereafter Mr Sturnela could be placed in a permanent residence. The affidavit indicated it was possible Mr Sturnela could reside with his parents but only for a very short period and indicated an expectation that the Public Trustee would manage the funds on behalf of Mr Sturnela.
An Associate Justice approved the sale of the Burnside property and ordered that the net proceeds of sale be paid into the Suitors’ Fund.
On 20 November 2023, Ms Sturnela commenced property proceedings in the Federal Circuit and Family Court of Australia (“FCFCOA”). Those proceedings are continuing and are not yet listed for trial.
The Burnside property sale proceeds were paid into the Suitors’ Fund in December 2023. The proceeds amounted to approximately $1.22 million. I will refer to the funds in the Suitors’ Fund as the “Funds”.
On 8 May 2024, by interlocutory application, Mr Sturnela sought payment of $200,000 out of the Funds in the Suitors’ Fund pursuant to r 114.4 of the Uniform Civil Rules 2020 (SA) (“UCR”). It sought payment out to the Public Trustee on account of Mr Sturnela for rental accommodation, living expenses, other debts and ongoing legal fees, including legal fees for “the matrimonial property settlement between” Mr and Mrs Sturnela. The application did not identify that it was made pursuant to the Act. The affidavit in support identified that the Public Trustee was appointed as Mr Sturnela’s manager under the Act and identified the circumstances in which the Burnside property was purchased and the decision made to sell the property. The affidavit sworn by Mr Sturnela’s father stated that after the sale of the Burnside property, Mr Sturnela moved into rental accommodation. The affidavit further referred to the fact the Public Trustee held amounts for Mr Sturnela that were less than the amount required to pay for 12 months of rent on Mr Sturnela’s lease accommodation. The Public Trustee had insufficient funds to pay the rent and living expenses and therefore was refusing to do so. The affidavit set out Mr Sturnela’s weekly expenses and amounts he was said to owe including for legal expenses, dental care and payments to a motor vehicle insurer.
After Mr Sturnela’s interlocutory application for payment out of the Suitors’ Fund was filed pursuant to s 114.4 of the UCR, Ms Sturnela filed an affidavit of facts sworn for the purposes of responding to Mr Sturnela’s interlocutory application. She did not file an interlocutory application seeking payment out of monies on her own account. Ms Sturnela consented to Mr Sturnela’s application on the condition she also receive a mutual and equal distribution of $200,000 from the Suitors’ Fund. She otherwise opposed the application.
The Public Trustee did not participate in the hearing other than filing brief written submissions which supported Mr Sturnela’s application.
The Associate Justice dismissed the application on 14 October 2024.
Appeal grounds
On 4 November 2024, Mr Sturnela filed a notice of appeal by his litigation guardian, Vince Sturnela.
The grounds of appeal were as follows:
1.The learned Associate Justice erred in failing to or to adequately take into consideration relevant matters in exercising the discretion for payment out of the Suitors Fund in that:
1.1 did not adequately take into consideration the relevant statutory regime governing the moneys paid into the Suitors Fund namely the Aged and Infirm Persons’ Property Act 1940 (SA) (“the Act”) the purpose of which is “to make provision for the protection of the property of aged and infirm persons” as indicated by the Act’s long title;
1.2 in failing to adequately consider that the monies in the Suitor’s Fund are the “protected estate” of the Appellant who is the “protected person” for the purposes of the Act following appointment of the Public Trustee as the Appellant’s manager under the Act pursuant to Orders of the Supreme Court of South Australia on 14 May 1998;
1.3     in failing to adequately consider that the monies in the Suitors Fund form part of a trust in favour of the Appellant as beneficiary being the protected person whereby the primary purpose of the said trust is to apply moneys for the protected person’s maintenance and in payment of the debts and liabilities of the protected person;
1.4    in failing to adequately consider that the Appellant had the sole beneficial entitlement to the moneys in the Suitors Fund which interest as beneficiary in the money is vested in him;
1.5     in failing to adequately consider that the Respondent had no established existing present interest in the monies in the Suitor’s Fund and her claim was at best a contingent indefinable claim.
2. The learned Associate Justice erred in the exercise of the discretion in taking into consideration irrelevant matters in that:
2.1     it was not a relevant consideration that the question of the division of the moneys in the Suitors fund was better left to a court that was far better equipped to deal with these issues [16];
2.2     it was not necessary in the circumstances in determining the application to determine the factual issues raised in the affidavits from the parties [15];
2.3     it was an irrelevant consideration in the circumstances that there was a context of a family law dispute.
Mr Sturnela seeks an order that $200,000 be paid out of the Funds in the Supreme Court Suitors’ Fund to the Public Trustee for Mr Sturnela’s rental accommodation, living expenses, other debts and ongoing legal fees including legal fees for the matrimonial property settlement between Mr and Ms Sturnela under Part VIII of the Family Law Act 1975 (Cth) (“Family Law Act”).
By interlocutory application dated 6 February 2025, Mr Sturnela applied for leave to amend the notice of appeal to seek that leave to appeal, to the extent necessary, be given.
Decision of the Associate Justice[1]
[1]
The Associate Justice set out the background circumstances in which the Public Trustee applied to the Court for leave to sell the matrimonial home. The Associate Justice referred to the affidavit of Mr Sturnela’s father in support of the application for approval to sell the Burnside property and the intention to find rental accommodation for Mr Sturnela or for Mr Sturnela to live with his parents. During the hearing of the application for approval of the sale, counsel for Mr Sturnela had informed the Court of the intention that Mr Sturnela would rent accommodation, and the Public Trustee would pay expenses from monies held on his behalf, continuing to say that the Public Trustee would pay the amounts until settlement of the FCFCOA proceedings. The Associate Justice observed that because of the assurances received about Mr Sturnela’s future living arrangements, the sale of the property was allowed to proceed on the basis the net proceeds of sale would be paid into the Suitors’ Fund. The Associate Justice also referred to Mr Sturnela’s father’s affidavit which stated the Public Trustee held less than the amount required for the lease and the Public Trustee had refused to sign the lease agreement.
The Associate Justice referred to the range of accusations made by Mr and Ms Sturnela against each other concerning their contributions to the marriage, access to bank accounts and use of monies received from earnings, Centrelink or protected funds, ultimately observing that it was not possible to resolve those factual disputes on an application such as this.
The Associate Justice was taken to the decision of In the Marriage of O’Brien[2] (“O’Brien”) wherein McGovern J considered whether property the subject of a protection order pursuant to the Act should be regarded as property held by one of the parties for the purposes of s 79 of the Family Law Act. On the basis of the decision in O’Brien, the Associate Justice concluded the matrimonial home was an asset of Mr Sturnela which would be taken into consideration in any determination of property rights on the termination of marriage. The net proceeds of the sale of the Burnside property were thus an asset that must be considered when exercising a discretion under s 79 of the Family Law Act.
[2] In the Marriage of O’Brien [1982] FamCA 76; (1982) 8 Fam LR 691.
The Associate Justice referred to Mr Sturnela’s submissions that he was in dire financial need, had been given notice to vacate his rental property, had incurred legal fees, and required medical and dental treatment following a fall. Mr Sturnela submitted that Ms Sturnela had no claim on the money in the Suitors’ Fund because of the way she dealt with her own and Mr Sturnela’s finances during the marriage. The Associate Justice also referred to Ms Sturnela’s submissions that she had the same expenses as Mr Sturnela including ever increasing legal fees so an order in favour of both parties was the fairest way to deal with the matter leading up to a trial in the FCFCOA.
The Associate Justice continued as follows:[3]
I do not consider that it is appropriate that I make any order for payment of the moneys from the Suitors’ Fund. I note that they make the vast majority, indeed, almost the entirety of the matrimonial pool of assets. I further note that, despite the decision in O’Brien, the applicant appears to contend that these funds do not form part of the asset pool, or at the very least, that the second interested party is not entitled to any recourse to it.
The parties are very much in dispute about events that occurred during their marriage, including the use of moneys and other behavioural matters. I cannot decide those issues in an application such as this, where no cross-examination has occurred and no evidence has been adduced save for a number of relatively short affidavits from the parties. Essentially, I have before me assertions made by each party and no means of determining where the truth lies.
In the circumstances, I can do no more than leave the question of the division of the moneys in the Suitors’ Fund to a court far better equipped to deal with these issues than I am.
Mr Sturnela’s submissions
[3] Sturnela v Aworth at [14]-[16].
Leave to appeal
Mr Sturnela submitted that the orders made were effectively final in relief. Mr Sturnela contended that the decision is erroneous and causes substantial injustice to him by denying him his substantive rights as the primary beneficiary of the trust over the monies in the Suitors’ Fund, the primary purpose of which is to apply monies for maintenance of Mr Sturnela as the protected person under the Act.
Mr Sturnela accepted the appeal was from a discretionary judgment and accordingly the principles in House v The King[4] apply.
[4] House v The King (1936) 55 CLR 499.
Appeal grounds 1.1 – 1.5
Mr Sturnela submitted that the Associate Justice failed to take into consideration the relevant statutory regime, the purpose of which was to make provision for protecting the property of the protected person which was to be held in trust by the Public Trustee and managed and applied for Mr Sturnela’s needs.
As a protected person, Mr Sturnela submitted the monies held in the Suitors’ Fund are part of his protected estate for the purposes of the Act as those funds were proceeds of the sale of the Burnside property which was purchased from the protected estate.
Pursuant to s 13(1) item 4 of the Act, the powers of the manager include applying any monies for the maintenance of the protected person. While it also enables the maintenance of the protected person’s spouse and children, Mr Sturnela submitted that the Act does not make provisions for maintenance of Ms Sturnela when the parties have been separated for seven years.
Mr Sturnela relied on s 18 of the Act which provides that a manager shall be deemed a trustee for all purposes of the Trustee Act 1936 (SA) and submitted that he is the sole beneficiary of the trust created by the protection order. Mr Sturnela contended that any funds paid into the Suitors’ Fund remained subject to any pre-existing trust notwithstanding the payment in, relying on the decision in Harmer v Federal Commissioner of Taxation[5] (“Harmer”).
[5] Harmer v Federal Commissioner of Taxation [1991] HCA 51; (1991) 173 CLR 264.
Mr Sturnela submitted that he is presently entitled and has a vested interest in the protected estate held in the Suitor’s Fund and requires access to it to pay for his accommodation, living expenses and debts and liabilities. Without access to those funds, he is dependent on his parents for financial support.
Mr Sturnela submitted that when monies are paid into court for a specific purpose, a court should generally exercise its discretion concerning payment out consistently with the purpose for which the money was paid into court. Mr Sturnela contended that the orders for payment into the Suitors’ Fund included a purpose to preserve the funds as protected monies under a pre-existing trust.

Mr Sturnela’s position was that Ms Sturnela has no legal or beneficial interest in the monies in the Suitors’ Fund and only a right to insist the monies be properly administered and applied for the purposes for which they were paid in. Any beneficial interest Ms Sturnela may have is contingent upon a court order being made in her favour by the FCFCOA. Mr Sturnela contended that Ms Sturnela did not have any proprietary interest in the Burnside property when Mr Sturnela was the registered proprietor and had failed to establish an equitable interest in the Burnside property or the money in the Suitors’ Fund constituting the proceeds of sale.
Appeal grounds 2.1 – 2.2
Mr Sturnela contended he is entitled to have monies paid out of the Suitors’ Fund as a result of his beneficial interest in those monies notwithstanding that Ms Sturnela may have a claim in proceedings in the FCFCOA. He contended that the Associate Justice misconstrued her role as she was not required to decide the question of the division of monies in the Suitors’ Fund. All that was required was whether there should be a partial payment out from the fund consistent with the purpose of those funds and such a payment would not defeat any expectation of Ms Sturnela concerning any order for division of those funds by the FCFCOA. Ms Sturnela’s application for final orders claimed 60 percent of the non-superannuation asset pool of the marriage. A payment out of $200,000 would still leave approximately $1.21 million, constituting 83.62 percent of the amount in the Suitors’ Fund and thus more than sufficient to satisfy any potential claims Ms Sturnela may have to the monies.
Mr Sturnela submitted he had established an entitlement to the payment out and demonstrated there was effectively no competing claim to the limited payment out which would prevent a payment to him. He contended that the fact the parties were in dispute was an irrelevant consideration on the limited issue of partial payment out.
Mr Sturnela submitted the Associate Justice erred in refusing payment out on the basis issues were to be determined in the matrimonial settlement proceedings.
On Mr Sturnela’s position, the outcome was plainly unreasonable and unjust.
Submissions of the Public Trustee
The Public Trustee submitted that allowing the decision to stand would work a substantial injustice and the decision is attended with sufficient doubt to warrant reconsideration. The Public Trustee pointed to Mr Sturnela’s need to access funds immediately. A further application for a payment out would put Mr Sturnela to significant further expense when he has limited financial resources. Further, the practical effect of the decision was that the division of the Funds should be left for final determination in the FCFCOA which could be months or years away. Meanwhile, Mr Sturnela is unable to access the Funds to pay for his place of residence and other debts, consequently allowing the decision to stand would work a substantial injustice upon him.
The Public Trustee submitted that the Associate Justice failed to have regard to the Act and the Public Trustee’s role as manager which is analogous to that of a trustee subject to a fiduciary relationship to act in Mr Sturnela’s best interests in dealing with the projected estate. The Public Trustee contended that the order directing the sale proceeds be paid into the Suitors’ Fund did not alter its status as the protected estate pursuant to the Act.
The Public Trustee submitted that the failure of the Associate Justice to refer to the Act or the Public Trustee’s role as manager, apart from a reference to the Public Trustee managing the protected sums, was a process error. The Public Trustee retains the powers in s 13 and remains subject to the requirements of the Act.
The Public Trustee submitted that as the protected estate was in the custody of the Court in the Suitors’ Fund, the Court was bound to apply the principles of s 13(1) item 4 of the Act (which provides for the maintenance of the protected person) and the Court was under an overriding obligation to ensure Mr Sturnela was afforded the protection of the Act. The Public Trustee submitted that the Associate Justice erred in failing to consider adequately or at all the protective features of the Act, the Public Trustee’s duties to Mr Sturnela, the purpose for which the monies had been paid in and the terms and effect of the protection order under the Act.
The Public Trustee also submitted that the dismissal of the application was plainly unreasonable or unjust as, on the evidence, Mr Sturnela was in obvious and immediate financial need. The effectively unchallenged evidence was there were insufficient funds held by the Public Trustee to pay for Mr Sturnela’s lease for 12 months and meet demand for payment for approximately $1,500 for a car accident in which Mr Sturnela had been involved in late 2023. The consequence of the dismissal of the application in its entirety was Mr Sturnela is practically unable to access funds to which he would otherwise have a lawful entitlement under the protection order to fund his care and maintenance.
The Public Trustee also submitted that reliance on the FCFCOA proceedings was misconceived. The Public Trustee contended that the application for payment out did not first require as a pre-condition the adjudication of the parties’ respective property rights, if any, to the proceeds of the sale of the Burnside property under s 79 of the Family Law Act. The evidence was that there was an application to the FCFCOA and competing claims were made as to whether and to which extent property orders should be made. The Public Trustee submitted that alteration of property interests under s 79 of the Family Law Act is not automatic, rather the question is whether it is just and equitable to make any order.
The Public Trustee’s position was that the Funds were subject to the protections conferred by the Act and legal title to the protected estate was not altered when the matrimonial proceedings commenced. It was not to the point whether the Funds formed part of the matrimonial pool of assets. Rather, the issue was whether it was appropriate to order payment out having regard to the present legal status and title to the Funds. In leaving the competing claims to the Funds entirely to the FCFCOA, the Public Trustee contended the Associate Justice erred.
Further, it relied on the fact that a payment out would not have jeopardised the proceedings given the total value of the sum requested was only a portion of the sale proceeds. The FCFCOA is still to ascertain the nature and value of the property and determine whether it is just and equitable to make an order altering the interests of the parties. The Public Trustee submitted that a payment from the Funds can still be taken into account by the FCFCOA for the purposes of the property proceedings if considered appropriate.
Submissions of Ms Sturnela
Ms Sturnela sought orders allowing the appeal solely on condition that a mutual and equal distribution of $200,000 be paid contemporaneously to Ms Sturnela’s lawyer’s trust account so as to prevent undue dissipation of the Suitors’ Fund in which Ms Sturnela has an “as yet undetermined equitable interest”. Ms Sturnela contended it is just and equitable to make a mutual and equal interim distribution from the Suitors’ Fund to both parties to supplement their general living expenses and legal costs or, alternatively, there was no error in the decision and it should be upheld.
Ms Sturnela contended that the Funds form part of the matrimonial property pool capable of division in accordance with s 79 of the Family Law Act. Ms Sturnela’s position was that it would be unjust and detrimental to her entitlements under the Family Law Act if any distribution were made to Mr Sturnela or the Public Trustee. While accepting the ultimate entitlement of the parties is a matter for determination by the FCFCOA, Ms Sturnela’s position was that she has a considerable entitlement and any interim or final distribution of funds to Mr Sturnela or the Public Trustee will disrupt the ordinary course of the FCFCOA proceedings and derogate from her rights and entitlements. Ms Sturnela’s submissions stated there was a significant and reasonably predicted risk that Mr Sturnela or the Public Trustee on Mr Sturnela’s behalf may take steps to dissipate the funds in an effort to defeat Ms Sturnela’s legitimate claim if her claim under the Family Law Act is not acknowledged by this Court.
Ms Sturnela relied on the authority of O’Brien[6] for the proposition that the Funds are property for the purposes of the Family Law Act. Ms Sturnela submitted that the Funds are not any less the property of Mr Sturnela despite being held and controlled by the Public Trustee for and on his behalf in the Public Trustee’s capacity as a manager pursuant to a protection order. Accordingly, Ms Sturnela submitted that the Funds are an asset of the marriage capable of division “and Ms Sturnela’s just and equitable entitlements thereto cannot be ignored”. Ms Sturnela pointed to orders of the FCFCOA on 3 December 2024 which recorded that the parties consented to the inclusion of the Funds in the matrimonial asset pool.
[6] In the Marriage of O’Brien [1982] FamCA 76; (1982) 8 Fam LR 691 at 696-697 (McGovern J).
Ms Sturnela submitted that a party to a proceedings has a legitimate right to seek an order for the provision of funds to enable the payment of his or her legal costs, referring to Strahan v Strahan.[7] In that case, Bolland and O’Ryan JJ said such ability reflects an important matter distinguishing litigation under the Family Law Act from civil litigation between parties who are not parties to a marriage because often the wealth is controlled by one rather than both. Ms Sturnela referred to authorities for the proposition that when contemplating an order for interim provision for litigation expenses, it is important to identify the relevant source of power which determines the necessary preconditions and relevant considerations for making the order.
[7] Strahan v Strahan [2009] Fam CAFC 166; (2009) 241 FLR 1 at [79] (Boland and O’Ryan JJ).
Ms Sturnela submitted she has a legitimate right to seek an order for the provision of funds to enable the payment for legal costs of participating in the FCFCOA proceedings where Mr Sturnela otherwise had control of the bulk of the asset and funds of the parties. Ms Sturnela’s submissions stated there can be no ambiguity that if the Court “is to entertain an application for a partial property settlement order (as both parties have requested), it should balance the risk of unduly limiting the final orders that can be made in the FCFCOA proceedings, or even the potential of defeating Ms Sturnela’s claims to the Funds or to a portion of the Funds, against the interests of Mr Sturnela to afford his living expenses”. Ms Sturnela contended she has a legitimate right to seek an order for the provision of funds to enable the payment of her legal costs of participating in the FCFCOA proceedings on an interim basis and that she has a present and determined equitable interest in the remainder of the funds pursuant to the Act. Ms Sturnela submitted she had an equitable interest in the funds pursuant to “entitlements created in equity by virtue of” the Family Law Act.
Ms Sturnela made a number of submissions in relation to the matters which were said to be relevant to her just and equitable entitlements and the respective expenses of the parties. Ms Sturnela also submitted that in previous hearings the Court was satisfied there were appropriate arrangements in place for the welfare and accommodation of Mr Sturnela following submissions that he was to live with his parents on an interim basis and appropriate rental accommodation would thereafter be secured on his behalf subject to the Public Trustee’s approval. Ms Sturnela submitted that the Court should take into account the “deliberate mismanagement of Mr Sturnela’s financial affairs, either by Mr Sturnela or Mr Sturnela Snr, which predictably has resulted in a scarcity of adequate finances to support Mr Sturnela”.[8]
[8] No evidence or further submissions were put forward in support of this contention.
Ms Sturnela contended that no substantial injustice was done to Mr Sturnela by the decision, nor was it attended with sufficient doubt to warrant reconsideration on appeal.
Ms Sturnela submitted the appropriate forum for an interlocutory application for interim property orders for the provision of funds to enable the payment of Mr Sturnela’s legal costs is the FCFCOA proceedings and the Associate Justice’s decision to defer the matters to the FCFCOA was appropriate.
Relevant legislation
The Aged and Infirm Persons’ Property Act 1940 (SA)
The Act gives the Supreme Court the jurisdiction to hear and determine any application or proceedings under the Act.
The Court may make a protection order in respect of the estate of a person where it appears to the satisfaction of the Court the person is, by reason of mental infirmity, unable wholly or partially to manage his affairs.[9]
[9] Aged and Infirm Persons’ Property Act 1940 (SA), s 7.
If the Court makes a protection order, the Court shall appoint a person or the Public Trustee to be the manager to take possession of and control and manage all or such parts of the estate of the protected person as the Court may direct.[10]
[10] Aged and Infirm Persons’ Property Act 1940 (SA), s 10(1).
Section 13(1) of the Act gives the manager various powers, including the power to apply any monies for the maintenance of the protected person and the spouse or domestic partner and children of the protected person. A manager is deemed to be a trustee for all of the purposes of the Trustee Act 1936 (SA).[11]
Supreme Court Act 1935 (SA)
[11] Aged and Infirm Persons’ Property Act 1940 (SA), s 18.
Funds in the Suitors’ Fund are vested in the Registrar on behalf of the Supreme Court and are to be dealt with by the Registrar in accordance with the Act, the Rules of Court and any order of the Court.[12]
Uniform Civil Rules (“UCR”)
[12] Supreme Court Act 1935 (SA), s 119.
Rule 114.4 of the UCR provides that money must be paid out of the Suitors’ Fund only by order of the Court or direction of the Registrar.
Leave to appeal is required against an interlocutory decision by a judicial officer of the Supreme Court pursuant to r 213.1.
Pursuant to r 217.10, subject to any statute to the contrary, an appeal is to be by way of re-hearing; the Court may draw inferences from evidence adduced at first instance and may hear further evidence in its discretion.
If it considers it is in the interests of justice to do so, the Court may determine an appeal on the merits, notwithstanding a failure of a party to raise or state properly a ground of appeal or alternative contention in the notice of appeal. The Court is given powers in r 217.11 which include setting aside or amending the judgment the subject of the appeal; substituting the Court’s own order; remitting the matter for re-hearing or dismissing the appeal.
Provisions of the Family Law Act 1975 (Cth)
Section 79 of the Family Law Act provides that in property settlement proceedings, the Court may make such orders as it considers appropriate in the case of proceedings with respect to the property of the parties to the marriage or either of them altering the interests of the parties to the marriage in the property. This includes orders for settlement of property or such settlement or transfer of property as the Court determines.
The Court shall not make an order under s 79 unless it is satisfied that in all the circumstances it is just and equitable to make that order.[13]
[13] Family Law Act 1975 (Cth), s 79(2).
In considering what order, if any, should be made under the section in property settlement proceedings, the Court is required to take into account a number of factors which include direct or indirect financial contributions to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them; contributions other than financial contributions to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them; the contribution to the welfare of the family; the effect of any proposed order on the earning capacity of either party and other specified matters.
Consideration
Leave to appeal
The decision on appeal is properly characterised as interlocutory.[14] It does not finally determine Mr Sturnela’s right to seek payment out of the funds in the Suitors’ Fund.
[14] Angelou v Brandenburg [2025] SASC 15 at [15]-[17] and [29] (McIntyre J).
Accordingly, leave to appeal is required.
In determining whether to allow an application for leave to appeal, the Court will take into account factors including whether: [15]
1.the decision is attended with sufficient doubt to warrant re-consideration;
2.the appeal raises an issue of general importance or principle; and
3.allowing the decision to stand would work a substantial injustice to the applicant.
Ultimately, the Court will act in the interests of justice.[16]
[15] Rankine v State of South Australia [2022] SASCA 18 at [2]-[3] (Livesey P, Lovell and S Doyle JJA).
[16] Rankine v State of South Australia [2022] SASCA 18 at [3] (Livesey P, Lovell and S Doyle JJA).
While the decision is interlocutory and thus would not preclude another interlocutory application, the conclusion that the division of monies in the Suitors’ Fund is appropriately left to the FCFCOA proceedings in practical sense precludes a further application.
I do not accept the Ms Sturnela’s contention that the potential avenue open to Mr Sturnela to bring an application in the FCFCOA for an interim property order has the consequence that there is no substantial injustice to Mr Sturnela. Mr Sturnela sought a payment out of the Suitors’ Fund in circumstances in which the funds from the sale of the Burnside property formed the vast majority of his protected estate. He is entitled to bring an application for payment out. An application for an interim property order in the FCFCOA is a different kind of application, entailing different considerations. Contrary to Ms Sturnela’s argument, it is not obvious to me that such an application would be quicker and less costly. It can be assumed the factual controversies traversed in the various affidavits sworn by the parties in support and in opposition to the application for payment out of the Suitors’ Fund would be relevant and require determination. For the reasons I address below, I do not consider those factual controversies must first be determined for an application for payment out of the Suitors’ Fund to be addressed.
For the reasons explained below in addressing the grounds of appeal, I have determined that leave to appeal should be granted in the interests of justice on the basis that allowing the decision to stand would work a substantial injustice to Mr Sturnela.
Nature of the appeal
The decision whether to grant the application for payment out from the Suitor’s Fund is discretionary. Accordingly, the appeal is to be considered in accordance with the principles identified in House v The King.[17] The manner in which appeals against an exercise of discretion are to be determined are well understood. It is not sufficient for a judge on appeal to reach a different conclusion. An error in exercising the discretion must be established. If the judicial officer has acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect him or her, mistaken the facts or failed to take material considerations into consideration, the determination should be reviewed and the appellate court may exercise its own discretion. If, on the facts, the decision is unreasonable or plainly unjust, the appellate court may infer that there has been a failure properly to exercise the discretion. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion will be reviewed on the basis that substantial wrong has in fact occurred.[18]
[17] House v The King (1936) 55 CLR 499.
[18] House v The King (1936) 55 CLR 499 at 504-505.
First group of appeal grounds

The grounds of appeal were interrelated and accordingly I will address them together.
The first group of appeal grounds assert process errors arising from a failure to take into account relevant considerations. Those inter-related considerations, grouped together, were said to arise from Mr Sturnela’s position as a protected person, the statutory regime, the nature of the Funds held in the Suitors’ Fund, Mr Sturnela’s interest in the Funds and (on the appellant and interested party’s positions) the absence of a vested interest of Ms Sturnela in the Funds.
As set out above, there is no doubt that Mr Sturnela is a protected person and the funds from the sale of the Burnside property formed almost the entirety of Mr Sturnela’s protected estate for the purposes of the Act. The Public Trustee was, and remained, Mr Sturnela’s manager.
The parties approached the characterisation of the Public Trustee’s role differently, in particular in relation to the question whether the Public Trustee is a trustee or an entity which owes fiduciary duties and responsibilities analogous to those of a trustee. The latter proposition was adopted in Jeavons v Chapman (No 2).[19] A trustee’s fiduciary duties require it to monitor and administer property of another solely for that person’s benefit.[20] Section 18 of the Act deems the Public Trustee as manager a trustee for the purposes of the Trustee Act 1936. The Public Trustee as manager has wide powers in relation to a protected estate pursuant to the provisions of the Act, including to apply monies for the maintenance of the protected person and to pay debts and liabilities of the protected person. The provisions of the Act are beneficial, remedial provisions.[21] There is authority for the proposition that the jurisdiction conferred on the Court pursuant to the Act is a statutory enhancement of this Court’s parens patriae jurisdiction.[22]
[19] Jeavons v Chapman (No 2) [2009] SASC 3 at [54] (Gray J), quoting Public Trustee v Hill and McFarlane (1993) 174 LSJS 48 at 56
[20] Re Permanent Trustee Aust Ltd (1997) 137 FLR 190 at 199 (Hansen J).
[21] Jeavons v Chapman (No 2) [2009] SASC 3 at [55] (Gray J).
[22] Porker v Porker [2007] SASC 217 at [28] (Judge Burley).
In O’Brien,[23] McGovern J considered that the intention of the Act is to provide a means of protecting the property of persons in need of assistance with powers given to managers and the Supreme Court to give effect to that purpose. His Honour considered there is nothing express or implied in the Act that indicates any intention to take away from protected persons their beneficial ownership or proprietary rights in their protected estates. It followed that the property the subject of a protection order is no less the property of the person the subject of the protection order.[24]
[23] In the Marriage of O’Brien [1982] FamCA 76; (1982) 8 Fam LR 691 at 697.
[24] In the Marriage of O’Brien [1982] FamCA 76; (1982) 8 Fam LR 691at 697.
Section 119 of the Supreme Court Act vests the Suitors’ Fund in the Registrar. However, funds which are paid into court remain subject to any pre-existing trust despite the payment in.[25] Where there is a pre-existing trust, the Court’s function is to identify the existing interests in the monies paid in.[26] The protection order remained in force and the Burnside property sale funds fell within the protection order. The order which resulted in payment of the Burnside property sale proceeds into the Suitors’ Fund did not alter the character of the Funds as part of the protected estate under the Act nor remove from the Public Trustee its status as manager or its powers pursuant to the Act. Whether or not the Funds were the subject of a trust in the strict sense, the Funds remained Mr Sturnela’s protected property subject to management by the Public Trustee pursuant to the protection order.
[25] Harmer v Federal Commissioner of Taxation [1991] HCA 51; (1991) 173 CLR 264 at 272 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).
[26] Harmer v Federal Commissioner of Taxation [1991] HCA 51; (1991) 173 CLR 264 at 272 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).
It is also the case that property the subject of a protection order falls within the pool of assets available for division by the FCFCOA. In O’Brien, McGovern J concluded the property the interests in which the Family Court had a discretion (pursuant to s 79 of the Family Law Act) to alter would include the protected estate held by the Public Trustee. In In the Marriage of Holmes,[27] the Full Court of the Family Court concluded that funds paid into the Supreme Court of Victoria were property within the meaning of the Family Law Act. The Court concluded that the scheme in question (pursuant to which a damages award to a person incapable of managing their affairs was paid into court) was to enable an experienced trustee to administer the award with a wide, but controlled, discretion consistently with the interests of the person. It was not intended to take away property from the person but rather to provide for its management in a way which did not divest the person of any proprietary interest.[28]
[27] In the Marriage of Holmes (1988) 12 Fam LR 331 at 341-2 (Fogarty, Murray and Frederico JJ).
[28] In the Marriage of Holmes (1988) 12 Fam LR 331 at 342 (Fogarty, Murray and Frederico JJ).
Ms Sturnela’s counsel made much of the fact that prior to the Associate Justice’s decision, Mr Sturnela’s position had been that Ms Sturnela had no entitlement to any share in the Funds. The manner in which the Associate Justice addressed the decision in O’Brien is consistent with her Honour having understood that Mr Sturnela adopted such a position. On the appeal, all parties agreed that the Funds are property capable of division pursuant to s 79 of the Family Law Act and that it will be a matter for the FCFCOA to determine what is a just and equitable division after trial of the action.
The parties differed in their positions on the true character of Ms Sturnela’s entitlement or potential entitlement to the Funds. Ms Sturnela maintained that she had an equitable interest in the Funds. Ms Sturnela did not refer to any authorities in support of the assertion that Ms Sturnela has an undetermined equitable interest in the Funds. Ms Sturnela rather relied on s 79 of the Family Law Act for that proposition, contending that the Court has the power to make a just and equitable division of the property forming the pool of matrimonial assets. However, that provision does not convert what is a claim for a division of property pursuant to s 79 into an existing equitable interest in the Funds. Section 79 does not create rights in a party to a marriage over the property of the other party to the marriage by reason of the activities of the parties or the institution of proceedings under s 79 if those rights do not otherwise exist.[29] Rights arising by virtue of the FCFCOA applying s 79 will come into existence when an order is made under that section.
[29] Re Chemaisse; Commissioner of Taxation (Cth) (Intervener) (1989) 13 Fam LR 724 at 732-3 (Fogarty, Nygh and Maxwell JJ).
Monies may be paid into court in various circumstances. A decision about payment out in any particular case will be determined by a number of factors including the relevant regime which governs payment in and holding monies in court, the purpose for which monies were paid in and any relevant decision of the court about entitlement to the monies rather than by reference to any rule of general application.[30]
[30] Duncan v National Australia Bank [2006] SASC 239 at [30] (White J, Vanstone and Layton JJ agreeing).
Given the matters to which I have referred above, the provisions of the Act, the nature of the Funds (that is, that they were funds of a protected person comprising the protected estate), the purposes of payment in, the circumstances and needs of Mr Sturnela as the protected person and the proper characterisation of Ms Sturnela’s interest therefore were all relevant considerations in the exercise of the discretion.
Ms Sturnela characterised the purpose of the payment in as being to protect the Funds because they are part of the matrimonial property pool. Ms Sturnela relied on the notice of payment into court,[31] which stated as the reason for payment in “pending terms of a matrimonial property settlement to be agreed in the Federal Circuit and Family Court of Australia” as establishing the purpose for payment in of the Funds. The notice of payment into court was not a document produced by the Court. While the payment in arose because Ms Sturnela made claims in respect of the Funds as matrimonial assets, that does not detract from payment in being consistent with, and in recognition of, Mr Sturnela’s interest in the Funds as a protected person.
[31] FDN 58 on SCCIV-96-1116.
It appears from the Associate Justice’s reasons addressing O’Brien that the question of law agitated in the hearing of the application was whether Funds would fall within the definition of property in the Family Law Act.
It is readily apparent from the affidavit material filed in support of the application and the Associate Justice’s reasons that the significant contests on the application were factual. While the Associate Justice was aware that the Public Trustee was manager for Mr Sturnela and the Funds were proceeds of sale of part of the protected estate, the affidavit material focused on, and the argument on the application devolved largely into, factual contests between the parties on issues to be addressed in the FCFCOA proceedings. Without being exhaustive, these included:
·a significant factual contest between the parties about their respective contributions, financial and non-financial during the marriage and accordingly their respective claims to the matrimonial property;
·allegations and counter-allegations of the adequacy of discovery given in the FCFCOA proceedings;
·whether amounts claimed to be payable by Mr Sturnela, such as on account of legal fees, were accurate and evidenced.
It does not appear from the reasons that Mr Sturnela and Ms Sturnela focussed submissions on the provisions of the Act, the Public Trustee’s powers under s 13, the nature of the parties interests (if any) in the Funds (apart from whether the Funds were matrimonial assets), the purpose of payment in or other factors relevant to a decision whether or not to make payment out of the Funds. The Public Trustee did not appear on the hearing of the application. The Associate Justice focussed on addressing the contention the Funds formed part of the matrimonial pool of assets because of the manner in which the argument proceeded.
While the affidavit material filed on the interlocutory application refers to the institution of the FCFCOA proceedings, I have not located any specific reference to the percentage of the property sought by Ms Sturnela. It does not appear that the initiating application in the FCFCOA (which shows the percentage of the matrimonial assets sought by Ms Sturnela) was exhibited to an affidavit on the application for payment out.[32] The fact the Associate Justice did not refer to the percentage of the Funds sought by Ms Sturnela in the FCFCOA suggests it was not drawn to her Honour’s attention at all or at the least in a way which highlighted the relevance to the application. In the FCFCOA proceedings Ms Sturnela seeks a maximum of 60 percent of the Funds. A payment out of $200,000 would not prejudice her position in the FCFCOA proceedings. The extent of Ms Sturnela’s maximum potential claim on the Funds relative to the total quantum of the Funds and the quantum of payment sought, the nature of Mr Sturnela’s existing interest in the Funds as the protected estate, the Public Trustee’s powers and obligations under the Act vis a vis the protected estate and Mr Sturnela’s demonstrated financial needs were relevant considerations. It does not appear from the Associate Justice’s reasons that real consideration was given to these matters and I therefore consider there was a process error. This arose because of the way the application was conducted by the parties before the Associate Justice.
[32] The initiating application was however included in the filed Appeal Book in these proceedings.
Second group of appeal grounds
The second group of appeal grounds were asserted process errors arising from the Associate Justice taking into account irrelevant matters. The irrelevant matters related to the factual disputes between the parties in the FCFCOA proceedings.
As set out above, the manner in which the parties approached the interlocutory application invited the Associate Justice to address the application from the perspective of whether the Funds constituted matrimonial property and the parties’ respective entitlements to that property. The Associate Justice was correct to conclude that the factual issues raised on the affidavits could not be addressed by her Honour and were properly to be addressed in the FCFCOA proceedings. However, unlike the position taken on appeal, it was not submitted to the Associate Justice that the factual disputes in the affidavits did not have to be resolved before a payment out could be made and those disputes were not relevant considerations.
I do not accept Ms Sturnela’s characterisation of the Associate Justice’s reasons as the Associate Justice’s indication to the parties they could bring an application for interim property orders in the FCFCOA. I consider that paragraph 16, read in the context of the reasons as a whole, reflected a conclusion that the payment out should await the final determination of the dispute between the parties in the FCFCOA.
The factual disputes between the parties about their relative contributions during the course of the marriage did not need to be ventilated before the Associate Justice. Those were matters for determination by the FCFCOA at a trial in the event the parties could not reach a settlement between themselves. It was not necessary for the FCFCOA to first have determined what Mr and Ms Sturnela’s respective property rights, if any, were in the sale proceeds before the payment out application could be considered. This is because irrespective of what determinations will be reached on the factual disputes, Ms Sturnela claimed a maximum of 60 percent of the Funds and a payment out to Mr Sturnela of $200,000 will not jeopardise Ms Sturnela’s position at trial.
Given my conclusions, it is not necessary for me to address the Public Trustee’s submissions on outcome error.
Exercise of discretion
Having been satisfied that the Associate Justice made specific errors of the kind described in House v The King,[33] I must exercise my own independent discretion unless I would reach the same conclusion.
[33] House v The King (1936) 55 CLR 499.
There was no dispute in the hearing before me that:
·Mr Sturnela was subject to a protection order.
·The Public Trustee was appointed as Mr Sturnela’s manager pursuant to the protection order.
·Mr Sturnela’s compensation was paid to the Public Trustee to be managed by the Public Trustee.
·The Public Trustee purchased the Burnside property utilising funds from the compensation payment to Mr Sturnela and the property was registered in Mr Sturnela’s sole name.
·Sale proceeds constituted almost the entirety of Mr Sturnela’s protected estate.
·The Funds from the sale of the Burnside property were paid into the Suitors’ Fund.
·In November 2023, Mr Sturnela had a negative cash balance and the Burnside property constituted over 98 percent of Mr Sturnela’s estate.
·As at 24 February 2025, the cash balance held by the Public Trustee on account of Mr Sturnela was $3,395.
·Ms Sturnela claims in the FCFCOA proceedings an entitlement to 60 percent of the matrimonial property, which in essence is 60 percent of the Funds.
I was informed the FCFCOA proceedings did not resolve at a conciliation conference on 13 March 2025 and accordingly will proceed to trial, which inevitably will take time. Ms Sturnela’s position has the practical effect of expecting Mr Sturnela’s parents to support him pending the finalisation of the FCFCOA proceedings.
Ms Sturnela took issue with the quantum of various expenses and liabilities deposed to in the affidavit of Mr Sturnela’s father, including on the basis that documents were not exhibited to the affidavit supporting the claims. However, it was not in dispute that Mr Sturnela’s place of residence was sold, the Public Trustee had insufficient funds to pay for 12 months of rent on the lease accommodation occupied by Mr Sturnela and could not meet other demands for payment. Given the funds available to the Public Trustee, it is clear that before too long, the Public Trustee will not be able to fund any daily living expenses incurred by Mr Sturnela. No basis was established for the assertions in Ms Sturnela’s written submissions concerning mismanagement of funds by Mr Sturnela or his father.
It follows that Mr Sturnela is, or shortly will be, unable to meet his daily living expenses or pay other outstanding liabilities. Mr Sturnela is in need. Apart from what now remains of the amount of about $3,500 held by Public Trustee, Mr Sturnela has only the Funds. The Public Trustee will not pay amounts to Mr Sturnela other than out of funds held on his account. In such circumstances, there is a compelling basis for making a payment out from the Funds.
Given there is a convincing reason to allow a payment out, the question arises whether a payment should not be made because of Ms Sturnela’s claims in the FCFCOA proceedings. An order authorising payment out of $200,000 from the Suitors’ Fund will not jeopardise Ms Sturnela in the FCFCOA proceedings. As set out above, she claims a maximum of 60 percent of the matrimonial pool of assets which amounts to about $720,000 of approximately $1.2 million and a payment out of $200,000 will leave an ample balance in the event Ms Sturnela were to succeed in establishing her maximum claimed entitlement. Ms Sturnela did not contend that payment out of $200,000 of the Funds would reduce the pool of funds available for distribution or prejudice her in the outcome of the FCFCOA trial. All parties agreed that the FCFCOA would take into account any payment out of the Suitors’ Fund in making final orders.
It follows that Ms Sturnela’s claim in the FCFCOA proceedings does not warrant refusing Mr Sturnela’s application for payment out.
That being the case, I turn to Ms Sturnela’s submission that she ought to receive an equal payment from the Suitors’ Fund. I reject that contention.
I do not accept as well founded Ms Sturnela’s response to the appeal, that is, that a payment should be made to Mr Sturnela if she receives an equal payment but otherwise the appeal should be dismissed on the basis there was no error.
Ms Sturnela’s affidavit material sought to support a payment out to her from the Funds in circumstances in which she had not made an application for any such payment. I do not accept Ms Sturnela’s submission that Mr Sturnela’s application is properly characterised as an application for an interim property settlement. Ms Sturnela did not provide any authority in support of the position that this Court has jurisdiction to entertain such an application. Such orders can be made in the FCFCOA pursuant to specific sections of the Family Law Act (based on specific provisions allowing for payment of maintenance, interim property settlements, payment of litigation costs and so on). Firstly, no such application was made. Secondly, this Court does not have the jurisdiction to entertain such an application it if it had been made in this Court. That jurisdiction is vested exclusively in the FCFCOA.

On appeal, the Public Trustee was willing to countenance the possibility that Ms Sturnela could have made an application under s 13(1) item 4 of the Act (based on a need for maintenance of a spouse or children). However, Mr Sturnela did not agree that would be an appropriate exercise of the power in s 13(1) item 4 in circumstances where Mr and Ms Sturnela have been separated for in excess of seven years. I do not consider it appropriate to approve a payment out from the Funds based on s 13(1) item 4 of the Act. Ms Sturnela has not applied to the Court for a payment out under s 13(1) item 4 or justified a basis for such a payment out. Further, I accept Mr Sturnela’s submissions regarding the length of time he and Ms Sturnela have been separated.
It follows from my reasons above that I have determined to re-exercise the discretion. I allow the application and approve payment of $200,000 out of the Funds on terms that the amount of $200,000 be paid to the Public Trustee as the manager for the protected estate to enable Public Trustee to make payments on account of Mr Sturnela’s living expenses and liabilities. Such funds are to be dealt with and accounted for by the Public Trustee in accordance with its duties and responsibilities as manager of the protected estate pursuant to the provisions of the Act.
Conclusion and orders
I grant leave to appeal and allow the appeal.
I make the following orders:
1.I approve a payment out of the sum of $200,000 from the Supreme Court of South Australia’s Suitors’ Fund.
2.The sum of $200,000 is to be paid to the Public Trustee as manager of the protected estate of Johnny Peter Sturnela pursuant to the provisions of the Aged Care and Infirm Persons’ Property Act 1940 (SA).

Sturnela v Aworth (Supreme Court of South Australia, Bochner AsJ, 14 October 2024)

(“Sturnela v Aworth”).