Naxos and Rice

In the Family Court of Australia, Mr Naxos (the applicant husband) sought to set aside consent orders for property settlement made in 2009, pursuant to section 79A of the *Family Law Act 1975* (Cth). Ms Rice was the respondent wife. The husband had filed his application and supporting affidavit on 21 September 2011, seeking orders that a sum necessary to discharge him from bankruptcy be paid to his Trustee in Bankruptcy and that $363,000 be paid to him. The husband was an undischarged bankrupt at the time of filing, having been declared bankrupt on 24 November 2009.

The primary legal issue before the court was the husband's standing to commence proceedings under section 79A of the *Family Law Act* while being an undischarged bankrupt. Additionally, the court considered whether the husband's Trustee in Bankruptcy had received adequate notice of the proceedings and their potential implications for the administration of the bankrupt estate and the creditors.

Justice Stevenson noted that the husband's standing to bring the application was a significant issue. The court also expressed concern regarding the notification provided to the Trustee in Bankruptcy, Mr B. While the husband's counsel indicated that Mr B had been advised of a hearing date via a letter to a lawyer who apparently held instructions to accept service on his behalf, the court was not satisfied that Mr B had actually received the communication or understood the purpose of the hearing. Consequently, the court determined that the husband must formally serve his Initiating Application, his affidavit, and the wife's Response and affidavit upon his Trustee in Bankruptcy.

The court ordered that the husband serve these documents within 14 days and also serve the court's reasons and orders dated 8 November 2012. An affidavit of service upon the Trustee was to be filed. The proceedings were adjourned to 10 December 2012 for mention and further directions before the docket Registrar, with both parties and their legal representatives required to attend. The court also requested the attendance of the Trustee in Bankruptcy and his legal representative to indicate his future intentions regarding the proceedings and to make submissions on the husband's standing.