To Anton Piller search or not to search
Each party to a Family Law property dispute has an obligation to provide full and frank disclosure of all assets, liabilities and financial resources in their name or control. Each party and the Court need the full picture regarding the financial circumstances around the relationship. But what happens when you get a feeling or outright know that what has been disclosed is only part of the picture?
More often used in Commercial Litigation (especially pre 1997), but rarely used in Family Law, an ‘Anton Piller’ Search order can help to determine, protect and preserve the ‘real’ property pool when a party ignores their discovery obligations.
Whilst Anton Piller search orders are more often used in Commercial Litigation, they are a valuable tool available for use in other types of proceedings, to be utilised to enforce discovery, protect assets, allow parties to prosecute their claims and provide the Court with evidence necessary to allow the proper determination of the case.
Search orders are, by their nature intrusive, potentially disruptive and are ordinarily made ex parte/without notice. They can be made where the applicant is able to satisfy the Court that there is a real possibility that important things will be destroyed or otherwise be made unavailable for use in evidence before the Court. In some circumstances, the search may be for a single item or class of items – say a computer hard-drive that contains all of the Respondent’s financial circumstances and documents. In other cases – such as the one our lawyers were involved in – the search is broad.
An application for a Search order must be supported by an affidavit that includes a description of the documents or items to be seized or inspected, the reason the applicant believes the respondent may remove, destroy or alter the document or property unless the order is made, a statement about the damage the applicant is likely to suffer if the order is not made, a statement about the value of the property to be seized, and if permission to enter and search is granted, the names of the persons who should be in the search party.
When to use?
Anton Piller Search orders can be an effective tool in determining the property pool when other methods of discovery are less effective, or when a party ignores their discovery obligations; and they can protect and preserve the property pool where there is a real possibility that important things will be destroyed or otherwise be made unavailable for use in evidence before the Court. In family law matters, alarm bells may ring for a spouse if they have witnessed some (or all!) of these things:
- The spouse / partners’ lifestyle does not match to their reported income
- Reported business results are not in line with Industry Benchmarks
- Multiple bank accounts are operating for no discernible reason
- There is a reported dramatic decrease in value of marital and/ or business investments.
A note to our accountant friends – The Family Law Act requires that all parties to a family law property dispute – whether married or de facto and whether or not there are proceedings in Court – have an obligation to provide full and frank disclosure of their financial circumstances. If your client is involved in a dispute about property arising out of their relationship, they should get legal advice from a lawyer in our Private Clients Group as early as possible.
This article was written by Brendan Herbert, Senior Associate – Private Clients.