Freer & Freer (No. 3)

In *Freer & Freer (No. 3)*, Strickland J of the Family Court of Australia considered applications arising from property settlement proceedings where one party, the husband, had been declared bankrupt. The primary dispute involved the husband's application to deal with the proceeds of a property sale, which the court determined were vested in the trustee in bankruptcy. Consequently, the proceedings concerning these proceeds were considered to be between the trustee and the wife, with the wife not seeking any orders regarding those specific funds.

The court was required to determine several legal issues. These included whether property settlement proceedings could be brought in relation to vested bankruptcy property, the proper parties to such proceedings, and the extent to which adult beneficiaries of a trust should be served with proceedings. Additionally, the court considered the husband's entitlement to discovery of documents and the discoverability of communications between the trustee in bankruptcy and the wife's former solicitors, including issues of privilege.

Strickland J reasoned that property settlement proceedings under section 79 of the *Family Law Act 1975* (Cth) are not applicable to property that has vested in a trustee in bankruptcy. The court held that adult beneficiaries of a trust, even if not yet formally parties, prima facie fall within the category of persons who should be served with proceedings pursuant to rule 6.02 of the *Family Law Rules 2004* (Cth). Regarding discovery, the husband was only entitled to documents relevant to issues in which he could participate. The court also found that certain communications between the trustee and the wife's previous solicitors were discoverable, subject to any claims of privilege.

The court made several orders. The trustee in bankruptcy was ordered to provide discovery of written communications with Cowell Clarke and any related file notes within fourteen days. The applicant wife was ordered to forthwith serve the adult children of the marriage, P Freer and K Freer, with the Amended Application filed on 19 September 2007. Finally, the application in a case filed by the respondent husband on 18 April 2008 was dismissed and removed from the active pending cases list.