Can an Anton Piller search order be used in family law?

An anton piller search order is a court order that allows one party to determine the  property of another party such that the total asset pool can be properly split during a property settlement. 

While anton piller orders are more often used in commercial litigation, they can also be useful if one party believes that another party is not giving ‘full and frank’ disclosure of their financial position.

What are search orders?

Search orders are court orders that legally allow a person to have their property or belongings searched. In the context of property settlement proceedings, having a search order served on an individual will generally mean that the individual will have to disclose their financial assets and liabilities. 

This will depend on the type of search order. For example, search orders can be intrusive as they can be made ex parte (without notice to the person being searched) or with notice to the person being searched.

This means that being served a search order could breach an individual’s privacy without them knowing.

Search orders and the property settlement process 

A search order can be used in the discovery process, which aims to collect evidence from either one item or a class of items.

A class of items is generally defined by certain parameters (for example, all the documents related to a certain transaction or all the documents located on a certain hard-drive). 

Search orders are important in family law property disputes, particularly as there is a legal obligation that each party provides ‘full and frank’ disclosure of all their assets and liabilities.

This allows each party and the Court to have a complete picture of each party’s financial circumstances such that property can be split fairly and equitably.

How to apply for a search order

A search order can be made where the applicant can prove to the Court that there is a real possibility that:

1. important evidence relevant to the case will be destroyed; or 
2. Such evidence will otherwise be made unavailable such that it cannot be used as evidence before the Court. 

An application for a search order requires that the applicant has an affidavit which includes:

• The document/s that the applicant wants searched or seized
• The value of the documents or property to be seized
• The reason the applicant believes that such evidence may be removed, destroyed, or altered such that important evidence is compromised 
• The damage the applicant will likely suffer if the search order is not granted and carried out
• The names of the individuals to be included in the search party if the search order is granted. 

When to consider using an anton piller search order:

As anton piller search orders can be an important and effective tool in property settlement disputes, it is important to know when they should be used.

Anton piller search orders are particularly important in circumstances where the other party is ignoring their discovery obligations (for example, they are not forthcoming with the documents that have been requested). 

Other key indicators that may point to the utility of an anton piller search order are circumstances where: 

• The lifestyle of the ex partner does not match with the financial records provided to the Court (for example, the reported income seems quite low)
• Business reports provided appear different to Industry Benchmarks 
• There is a reported large decrease in value of assets over the period of the relationship 
• Multiple bank accounts appear to be operating for no apparent reason. 

How does an Anton Piller order differ to a Mareva Order?

An Anton Piller order and a Mareva Order are both court-issued orders used in Australian family law, but they serve different purposes. While an Anton Piller order allows one party to search and seize relevant evidence without prior notice, a Mareva Order is used to freeze a party’s assets, preventing them from disposing of or moving their assets out of the court’s jurisdiction.

The purpose of a Mareva Order is to preserve assets that may be used to satisfy a judgment if the court rules in favour of the applicant.

In contrast, an Anton Piller order is used to secure evidence that may be necessary to support a party’s case.

Both orders can have a significant impact on a party’s ability to defend their case, and as such, they are only granted by the court in exceptional circumstances.

If you need any assistance regarding your property settlement, please feel free to book in a time to chat with one of our family lawyers.