How do subpoenas work in family law?

Subpoenas are an important part of many legal processes, including family law. Below are the essential issues to understand when applying for or issuing a subpoena in a family law matter.

What is a subpoena?

A subpoena is a legal document that compels a person to produce documents or appear to give evidence at a hearing or trial. If you wish to subpoena an organisation, the subpoena must be directed to a person who is authorised to act on behalf of the organisation.

A subpoena is issued by the court at the request of one of the parties to a case, or on the court's own initiative.

There are three main types of subpoenas:

1. "Subpoena for production" - requires the subpoenaed person to produce documents to the court;
2. "Subpoena to give evidence" - requires the subpoenaed person to appear in court to give evidence; and
3. "Subpoena for production and to give evidence" - requires the subpoenaed person to both produce certain documents and appear in court to give evidence. A party should not request that a subpoena to give evidence be issued if a subpoena for production would suffice in the circumstances.

When might a subpoena be issued?

You or your lawyer might request that the court issue a subpoena if you have made reasonable enquiries of a person to provide certain documents, or give evidence to the court, and they have refused to do so. You should make all reasonable attempts to obtain the required document or evidence yourself before requesting that a subpoena be issued.

For example, in a property matter you might issue a subpoena to a bank with whom you believe the other party to have accounts. In a parenting matter, you might issue a subpoena to the other party's doctor or treating health practitioner, if the other party's health is a key issue in dispute. In both cases, you must first ask the other party to provide the documentation, before requesting that the court issue a subpoena.

Can I issue a subpoena in relation to a document held by another court?

No. If you or your lawyer are seeking the production of a document or thing in the possession of another court (e.g. the Magistrates Court), you must write to the Registry Manager of that other court setting out various details, including the description of the document to be produced and the reason for seeking production.

Do I need permission to issue a subpoena?

You will need permission to issue a subpoena if:

• you are unrepresented (meaning you do not have a lawyer representing you in court proceedings); or
• you are represented, and your solicitor wishes to issue:
  • a subpoena for production for a final hearing (as opposed to an interim hearing);
  • additional subpoenas, if you have already issued five subpoenas for production in relation to the hearing of an interim application;
  • a subpoena for production directed to another party to the proceeding (as opposed to a third party);
  • a subpoena to give evidence; or
  • a subpoena for production and to give evidence.

To seek the permission of the court, you or your solicitor must write a letter to the court registry where the proceeding is being heard (e.g. Melbourne) and explain how the documentation or evidence you are seeking to subpoena is relevant to the issues in dispute.

How do you apply for a subpoena?

If you do not require the court's permission to request that a subpoena be issued, or once the court's permission has been granted, you or your solicitor will need to follow the below steps to request that a subpoena be issued:

1. Complete the approved court form (Subpoena - Family Law"").
2. File the subpoena with the court via the Commonwealth Courts Portal (if the subpoena is "production only") or via email (if the subpoena requires a person to give evidence).
3. Serve the subpoena once it has been issued and sealed by the court.

For detailed information regarding how to complete the approved court form as well as how to file and serve a subpoena correctly, please refer to the court website.

How much does it cost to issue a subpoena?

The fee to file a subpoena is currently $65. This fee may change from time to time and can be found on the court website.

What is conduct money and when does it need to be paid?

Conduct money is paid to the subpoenaed person to cover the reasonable expenses of complying with the subpoena.

For "production only" subpoenas, this could include the cost of identifying, copying and collating the documents required. The minimum amount of conduct money for "production only" subpoenas is $25, however the subpoenaed person can request that they be paid more to cover their reasonable expenses.

Conduct money for subpoenas to give evidence is designed to cover the subpoenaed person's travel, accommodation and meal expenses during the time of their attendance at the hearing or trial. This is in addition to a "witness fee" (for lay witnesses, i.e. not experts) of $75 each day, or part of each day, that the subpoenaed person is absent from their residence or employment to meet the requirements of the subpoena.

Does a person have to comply with a subpoena?

A subpoenaed person must comply with a subpoena (i.e. to produce documents or attend court to give evidence) unless the subpoena was not served correctly or conduct money was not provided. Non-compliance with a subpoena can result in the court issuing a warrant for the person's arrest or ordering the subpoenaed person to pay any costs associated with their non-compliance.

Can the subpoenaed person object to producing a document?

Whilst a detailed discussion of the grounds upon which a subpoena can be objected to are beyond the scope of this article, there are three main grounds upon which a subpoenaed person (or another party or an interested person) can object to documentation being produced pursuant to a subpoena:

1. the documents requested are irrelevant;
2. the documents requested are privileged (for example, because the documents came into existence as a result of a lawyer/client relationship); or
3. the terms of the subpoena are too broad.

If objecting to a subpoena, the subpoenaed person must complete and file a court form called a "Notice of objection - Subpoena" before the date of production. The objection will then be heard and determined by the court at a separate hearing.

How can I obtain access to the subpoenaed documents once they have been produced to the court?

If the subpoenaed documents have been produced to the court, and the subpoenaed person (or another party or interested person) has not made an objection to the production of documents, the party who requested the subpoena must complete and file a court form called "Notice of Request to Inspect". This form cannot be filed until on or after the date of production, which will be set by the court.

For documents other than child welfare records, criminal records, medical records or police records, each party to the proceedings can then make an appointment with the court to inspect and take copies of the documents. If permission to copy the subpoenaed documents has been granted by the court, electronic access to the material will usually be provided by the court.

Copies cannot be made of child welfare records, criminal records, medical records or police records as these documents are "inspect only". As such, you or your lawyer will need to attend the court registry in person to inspect the documents (and take notes, if required).

If you have subpoenaed a person’s medical records, the person whose records have been produced may give notice to the court that they want to inspect those medical records in order to decide if they wish to object to their inspection. If they object to their records being inspected, they are allowed to file their notice of objection within seven days after the date for production in the subpoena. In this case, you, or any other party or interested person, will not be permitted to inspect the medical records until the later of seven days after the date for production, or the hearing and determination of any objection.¹

What can I use subpoenaed documents for?

You can only use subpoenaed documents for the purposes of the proceedings in relation to which the subpoena was issued. You must not disclose the contents of subpoenaed documents, or provide a copy of any subpoenaed documents, to another person, without the permission of the court.

Next steps

Compliance with the various requirements in relation to subpoenas can be difficult and technical. If you require assistance, please do not hesitate to contact a member of our Family & Relationship Law team, all of whom have experience with all aspects of family law, including subpoenas.

¹ Taken from Federal Circuit and Family Court of Australia,"Family Law - Subpoenas" (web page).