What are search orders in family law property matters?

Search orders (also known as “Anton Piller orders”) in court proceedings are a powerful tool used in Australian family law property disputes when one party is suspected of hiding, destroying or refusing to disclose financial information or assets. 

This article explains what search orders are, when courts make them, how they work in practice, and the risks involved. If you are concerned that property is being concealed during a family law property settlement, understanding search orders can help you see what legal options may be available.

You can also read more about hiding assets generally, in our earlier blog, “What to do if your ex is hiding assets during family law proceedings”

What is a search order in family law?

A search order is a court order that allows a small search team (typically including an independent lawyer, the lawyers of the parties and any relevant experts) to enter premises and search for, copy and preserve evidence related to family law proceedings. Search orders are typically used in property matters where there is a genuine concern that one party has hidden, moved or destroyed documents or assets relevant to the property pool.

Search orders are not routine. They are only granted in limited and serious circumstances.

When might a search order be used in a property dispute?

Search orders arise where strong evidence suggests that one party is not being honest or transparent about their financial position.

Common situations include where a party is suspected of:

• hiding bank statements, trust records or company documents;
• transferring money to friends, family members or offshore accounts;
• concealing cryptocurrency, cash or valuable personal property;
• destroying or altering financial records;
• refusing to comply with disclosure obligations under family law.

Legal test for granting a search order

Australian family law courts apply a strict test before granting a search order. The person seeking the order must show:

• a strong prima facie* case for their final property orders, based on the evidence already gathered;
• serious potential loss or damage if the order is refused;
• evidence the other party holds important documents or other material linked to the dispute;
• a real possibility this material will be destroyed, hidden, or made unavailable for the court unless the order is made.

Courts also look for fair balance, so any order stays proportionate and does not cause greater harm than needed to preserve evidence.

Because search orders involve entering private premises, courts are cautious and require detailed and credible evidence.

* Prima facie means the evidence points strongly toward the applicant’s claim, even though the final hearing has not occurred yet.

What can be searched and seized under a search order?

A search order does not give unrestricted access. The order will be tightly drafted and limited to specific items and locations.

Typically, a search order may allow:

• entry to nominated premises, such as a home, office or storage facility;
• access to computers, phones and electronic storage devices;
• copying of documents, rather than permanent seizure;
• temporary retention of material for inspection by lawyers or the court.

Personal items unrelated to the property dispute cannot be searched or taken.

Who carries out the search?

Search orders are not executed by the other party. Typically, the court appoints an independent supervising solicitor or independent lawyer who has no link to either side.

The supervising solicitor’s role includes:

• explaining the order to the respondent;
• overseeing the search to ensure it stays within the terms of the order;
• telling the respondent about important rights, such as legal professional privilege and privilege against self‑incrimination; preparing a report for the court describing what happened during the search.

The applicant and their lawyers are usually present, but they must follow strict rules of conduct. The respondent and their lawyer may also be present.

In some cases, it may also be appropriate for an expert to attend, such as an independent computer specialist who would assist with creating a forensic copy of the hard drive of a computer, or data stored on other electronic devices.

What are the risks and consequences of a search order?

Search orders carry serious legal risks for both parties.

For the applicant, risks include:

• being ordered to pay compensation if the order was wrongly obtained;
• significant legal costs if the application fails;
• court sanctions if the order is misused or overly aggressive.

For the respondent, consequences may include:

• adverse findings if hidden assets or documents come to light;
• penalties for failure to give full financial disclosure;
• property orders that favour the other party to correct any concealment;
• contempt of court proceedings, with possible fines or other sanctions.

Because of these risks, search orders are not used lightly.

Interaction with disclosure obligations in family law

In Australian family law, both parties have a continuing duty of full and frank disclosure. Full and frank disclosure means each party must provide all information relevant to their financial position, including income, assets, liabilities, and resources, without waiting for a formal request.

Search orders are generally a last resort, used when:

• ordinary disclosure requests have failed;
• court orders for disclosure have been ignored;
• there is evidence of deliberate concealment or dishonesty.

Courts expect parties to attempt less intrusive options before seeking a search order.

Practical considerations before applying for a search order

Before seeking a search order, legal advice is critical. Courts expect applications to be carefully prepared and supported by evidence.

GET ADVICE FROM AN EXPERIENCED FAMILY LAWYER:  08 6245 0855

Important considerations include:

• whether subpoenas, targeted disclosure orders, or forensic accounting could achieve the same outcome with less intrusion;
• how strong and reliable the available evidence appears;
• whether any children live at or visit the premises and how a search might affect them;
• the provision of any appropriate undertakings to be provided by the applicant and members of the proposed search party;
• whether the likely benefit of the order justifies the cost and disruption. 

A poorly prepared application can do more harm than good.

Frequently asked questions about family court search orders

Are search orders common in family law property matters?

No. Search orders are rare and reserved for exceptional cases. Most property disputes are resolved through disclosure, subpoenas and negotiations.

Can a search order be made without notice to the other party?

Yes. Search orders are usually made without notice, meaning the respondent is not told in advance. This is to prevent evidence being destroyed before the search occurs.

Can a search order apply to third parties?

In limited circumstances, yes. A search order may apply to premises controlled by a third party if there is strong evidence relevant material is held there.

What happens if someone refuses to comply with a search order?

Refusing to comply with a search order can result in serious consequences, including findings of contempt of court, fines or adverse property orders, and in extreme situations, sometimes imprisonment. 

Does a search order mean the court believes wrongdoing has occurred?

Not necessarily. A search order does not determine the final outcome. It simply preserves evidence so the court can fairly assess the property dispute.

Get help from a family lawyer

Search orders are a powerful but exceptional tool in family law property matters. They exist to protect the integrity of the court process where there is a genuine risk of assets or evidence being hidden or destroyed. 

Because they involve significant legal and personal consequences, they should only be pursued with careful legal advice and strong supporting evidence. At Meillon and Bright, our lawyers advise on the challenges and risks associated with search order applications, explore alternative options with you, and work toward a fair and equitable property settlement.