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Family Law

Court seizes phones under Anton Piller order to find missing child

By July 9, 2021February 23rd, 2024No Comments

A family court case relating to a missing one year old child continues to proceed through the court system, with a new application recently made in an attempt to locate the child. The child had been forcibly removed by its parents from the maternal grandmother who had custody, and the parents refused to comply with orders made to return the child. This led to the parents being charged with contempt of court and given prison sentences. Now, an Anton Piller order has successfully been granted to the grandmother for the court to obtain the mobile phones of the parents, which had been confiscated by authorities when the parents were taken into custody. It’s believed information about the child’s location is contained on those phones.

In the case given the pseudonym Che & Don, the child’s mother and father have been imprisoned over their contempt of court. The father was imprisoned for up to three months and the mother for up to seven days. The difference in their sentences came about because the mother suffers from an intellectual disability and it’s thought she was heavily influenced by the father. The court noted that “the key to their liberty is in their hands”, because as soon as either parent gives up the location of the child, they will have “purged themselves” of the contempt charges and can be released from custody. (Note the mother has now served her period of incarceration while the father is currently still held behind bars.)

In the prior judgment regarding the contempt of court, the judge had noted:

“The child is now either in the care of someone known to the parents but the parents are unable or unwilling to say who that person is or, alternatively, the parents left the child with someone they do not know which means the 11 month old baby is at large in the community, extremely vulnerable, and possibly at significant risk of harm or even death.”

The new Anton Piller application by the grandmother related to the mobile phones of the parents, which were held by authorities at the correctional centre where the parents were imprisoned. Orders have now been made that the superintendent of the centre surrender those phones to the court, for the purposes of forwarding them to the Australian Federal Police for forensic analysis.

The mother and father have admitted they had held phones that contain information pertinent to the whereabouts to the child, being information relating to who they assert has care of the child. However they deny that those phones are the ones held at the centre. The court disagreed and found it likely that the confiscated phones did contain such information.

The court noted it “has available to it power to order that the phones be delivered into the Court’s custody in a manner analogous to orders commonly referred to as Anton Piller orders”. The purpose of the Anton Piller order here is to allow the court to ensure its proceedings are not “rendered nugatory by the misbehaviour of a defendant”. The order is made to assist the court to fulfil its function and not undermine its jurisdiction.

What are Anton Piller orders?

Anton Piller orders are more commonly used in financial and property matters, to prevent an ex-spouse from interfering in the “discovery” process (exchanging relevant financial information). For example, attempts may be made to frustrate a court by destroying documents or evidence before a judge has the chance to be presented with such evidence.

Anton Piller orders typically allow a spouse’s authorised representative (usually an independent lawyer, sometimes also an IT specialist) to enter their ex-spouse’s premises to search, inspect and take possession of evidence (including computer records) relating to a claim.

The tests involved

Being successful in obtaining an Anton Piller order through the courts requires that three tests are met.

First, there must be an extremely strong prima facie case. In this particular case, it was undisputed that the parents had snatched the child from the grandmother in quite a violent incident and that they have refused to comply with orders to return the child. The prima facie case was assisted by admissions made by the parents. These admissions were that information about the child’s current location or carers was held on mobile phones of the parents, even though the parents would not concede that the phones held by the correctional centre were the relevant phones.

Second, the potential or actual damage must be very serious. Here, it’s clear that the safety of a small infant could be at stake, so the situation could not be more serious.

Thirdly, there must be clear evidence that the person subject to the order has the incriminating documents or things in their possession, and there is a real possibility that they may destroy this material if they become aware of the Anton Piller application. In this case, as noted, the court found that the parents had admitted to having such incriminating information on phones they owned (though not the ones held by the correctional centre). Further, the court found there was a risk the parents would attempt to remove such information from the phones if they had the chance.

You can read this judgment in full here, and the previous judgment in this case here.

You can also read more about Anton Piller orders here.

If you have any queries about Anton Piller orders, please contact Canberra family lawyer Cristina Huesch or one of our other solicitors on (02) 6223 2400. Alliance Family Law has experienced solicitors on hand to advise on Anton Piller orders. You should be aware that the cost can be very high, as there is the initial cost of drafting documents to support the order, going to court to argue about the order, then paying the independent solicitor and possibly other individuals to assist with fulfilling the order. The costs involved mean such orders should only be sought where they are absolutely necessary, such as in this case. If you are at the receiving end of an Anton Piller order and do not already have a lawyer, we can also help you—please contact us immediately.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.

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