By Gianna Huesch
When you are going through a divorce, an important part of working out finances and determining how assets should be split is the full disclosure of financial information (evidence). Usually both parties operate with openness and honesty, not least due to the fear of falling foul of the law, and being hit with punitive measures such as payment of their spouse’s costs, or losing out in the settlement.
However, on occasion, spouses will act dishonestly and secretively, hiding assets and keeping secret bank accounts or stocks and shares. They may also engage in behaviours designed to destroy and hide documents and evidence.
Can anything be done to prevent your spouse taking such evasive and destructive actions?
One way a court can intervene to deal with a dishonest spouse is in the making of an Anton Piller order. The primary purpose of the Anton Piller order in family law is to stop a spouse from interfering with the process known as “discovery” (exchanging relevant financial information) and frustrating a trial by destroying documents or evidence before a Judge can decide what the evidence means.
Successful “Anton Piller” applications allow a spouse’s authorised representative (usually an independent lawyer, sometimes also an IT specialist) to enter their spouse’s premises to search, inspect and take possession of evidence (including computer records) relating to a claim.
Anton Piller orders are not search warrants, however. In theory, your spouse has the right to refuse entry, however a spouse who refuses to comply with the order or obstructs its execution risks fines or imprisonment due to contempt of court.
Anton Piller applications are made by filing the appropriate forms at court. Applications must be accompanied by affidavits in support containing descriptions of the items sought, the location of the items, reasons as to why the order is sought, the prejudice likely to be suffered if the order is not made, details of the independent solicitor to be appointed, and if the premises are residential, whether or not it is believed that the occupant of the premises is likely to be aged under 18, and/or a person reasonably considered to be in a vulnerable position. If it is likely that a female occupant will be alone, the order may specify that the solicitor serving the order is to be a woman, or accompanied by a woman.
There are rules that exist in regard to the conduct of the search that protect the defendant’s rights. The search generally has to be executed during business hours and an independent legal practitioner must be present at the premises during the search.
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 against your spouse. For example, you may already have some emails showing the spouse has hidden assets of substance.
Second, the potential or actual damage to you resulting from your spouse’s alleged wrongdoing must be very serious. For example, if the assets were not disclosed, you may lose outon a large sum of money.
Thirdly, there must be clear evidence that your spouse 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 your application. For example, you may be able to show the spouse has computer records, or financial documents which will shed light on this issue.
As such, the orders are made “ex parte”–with only the applicant party in court–to prevent the other party being made aware of it beforehand. You need an element of surprise, else the spouse may of course destroy the very evidence you are trying to locate.
Because the spouse is not in court to argue against the granting of the order, the applicant has the duty to make full and frank disclosure of all facts that could be taken into account by the judge deciding the matter. This includes identifying potential defences, disclosing all known material facts that would have been discovered by proper enquiries.
What happens if you’re on the receiving end of an Anton Piller order?
You need to immediately call your solicitor. The terms of the order will usually allow you to seek urgent legal advice before complying with the order. If you allow the search, be vigilant and ensure that the order is properly executed (if not, it’s the other party who will be in contempt). Only items actually covered by the order are allowed to be inspected or removed, so read the order carefully to work out what material it refers to.
You can’t just decide you don’t want to hand some things over because you feel they are sensitive or irrelevant. If they are covered by the terms of the order, you must allow their inspection and/or removal. Of course, it’s critically important not to remove, destroy or hide any evidence or documents that might be the subject of the order while waiting for your solicitor to give advice.
Of course, the documents are not simply handed over to the other party to the dispute. They remain in the custody of the independent solicitor, until a judge orders the material be released. This will enable you to argue that certain documents are legally privileged (private legal advice etc). Some protections are in place.
Are you concerned your spouse might be hiding assets from the court in your divorce proceedings?
If so, please contact Cristina Huesch or one of our solicitors urgently on (02) 6223 2400, as it’s necessary to act quickly to ensure any such freezing orders are put in place as soon as possible. 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 also a forensic computer expert to attend an office potentially all day until after midnight to copy computer files. These costs mean such orders are usually only worthwhile if the asset pool is relatively large.
If on the other hand 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.