A practical guide to subpoenas in family law
Family & Relationship Law eBulletin - 19 September 2014
A subpoena is a legal document issued by a court at the request of someone who is a party to a case. It compels the person receiving it to produce documents or give evidence at a hearing or trial. In this article, we look at what to do if you receive a subpoena when you are involved in family law proceedings.
What is a subpoena?
A subpoena is a legal document issued by a court at the request of someone who is a party to a case. A subpoena compels the person receiving it to produce documents or give evidence at a hearing or trial.
Why have I been subpoenaed and what does it involve?
You may be issued with a subpoena if you have refused to give evidence or provide documents to a court, or if you are unable to provide the requested documents of your own free will.
Most commonly, a subpoena will require you to copy or produce documents to the Court by a specific date.
Sometimes, a subpoena may require you to appear in court to give oral evidence, as well as (or instead of) producing documents. The subpoena will clearly detail what is required of you to comply.
Am I required to comply?
You are generally required to comply with a subpoena to produce documents, even if you object to doing so.
There are some exceptions to this rule, such as where a subpoena is so broadly phrased as to require an “oppressive” amount of time to locate and collate the required documents. Objections can also be made on the basis of relevance. If you wish to object to a subpoena, you should obtain legal advice. In most instances, you will be obliged to produce the documents sought by the subpoena and then make your objection to the Court.
Will I breach confidentiality?
The Court generally finds that someone issued with a subpoena should comply, despite potential issues of confidentiality. This is provided that the documents or evidence sought are relevant to the main issues being considered by the Court.
Some documents may be legally privileged if, for example, they were produced in connection with the provision of legal advice to a party involved in the proceedings.
There are significant restrictions placed on parties to Family Law Act proceedings, which can prevent them from engaging in unauthorised use of information obtained under subpoena.
Can I claim my costs of compliance?
It is normal for a subpoena to be served with a small sum of conduct money, such as $10 or $20. If complying with the subpoena would cause you to incur significantly greater costs, you may wish to request reimbursement at the outset from the person who has subpoenaed you. You can also claim witness expenses if you are required to be absent from your paid employment or other duties.
Stephanie Doyle, Senior Associate
Daniel Kaufman, Senior Associate
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