Subpoenas are a powerful tool in family law proceedings before the Federal Circuit and Family Court of Australia (FCFCOA). They enable parties to obtain evidence that may be crucial to resolving or prosecuting their case, particularly where crucial information is held by third parties.
What is a Subpoena?
A subpoena is a legal document issued by the Court at the request of a party, compelling a person or organisation to:
- Produce documents to the Court (subpoena for production)
- Attend Court to give evidence (subpoena to give evidence)
- Or both (subpoena for production and to give evidence)
Generally, a subpoena will be for the production of documents into Court. Subpoenas to produce documents are commonly used in family law proceedings to obtain documents such as police records, bank records, medical records, school reports, or employment information that are relevant to the issues in dispute.
It is important that a subpoena to produce documents clearly describes the document or class of documents the producing party must deliver into Court.
When Can a Subpoena Be Issued?
In circumstances where final orders only are sought, a party must apply for leave to issue a subpoena. The party seeking the subpoena must demonstrate that the documents or evidence sought have apparent relevance to the issues in the proceedings and cannot be obtained by other means, such as through disclosure.
The Court will not provide leave to issue a subpoena if, for example, it considers the request to be a “fishing expedition” or if the material sought is not sufficiently specific or lacks apparent relevance.
However, if a party has legal representation and is seeking interim orders, that party can issue up to five subpoenas without first needing to seek leave of the Court.
Issuing a subpoena
The process for issuing a subpoena in the FCFCOA involves:
- Preparing the subpoena using the approved Court form.
- Filing the subpoena with the Court and paying the prescribed filing fee.
- Upon receipt of the sealed subpoena from the Court, the issuing party must serve the subpoena on the person or organisation required to comply, as well as all other parties to the proceedings.
- Paying conduct money to the recipient, which is a sum to cover reasonable expenses incurred in complying with the subpoena.
Compliance and Objections
The recipient of a subpoena must comply by the date specified, unless they object or the Court orders otherwise. Grounds for objection may include:
- The subpoena is too broad or oppressive
- The subpoena lacks apparent relevance to the issues in dispute
- The subpoena amounts to a “fishing expedition”
- The documents sought are privileged
- The subpoena was not properly served or conduct money was not provided
The person or entity subpoenaed to produce the document(s) may object as may other parties to the proceedings. The process of raising an objection requires the objecting party to file a Notice of Objection. If an objection is raised, the Court will list the matter to determine whether the subpoena should be set aside or varied.
The producing party must, however, provide documents in their possession or control that fall within the class of documents described in the subpoena schedule.
Accessing Subpoenaed Material
The party issuing the subpoena must file a Notice of Request to Inspect following the date for production of documents into court to gain access to inspect or copy them. The Court may impose conditions on access.
Subpoenas are a powerful tool for obtaining evidence in family law proceedings, but they must be prepared and issued in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. Properly utilised, subpoenas can assist in ensuring that all relevant information is before the Court.
Written by
Matthew Fieldus
Family Law Solicitor
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