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Subpoenas and Family Law Matters

When information is needed from a third party for the purposes of legal proceedings, a party may issue a subpoena requiring that the information to be provided to the court. There are three types of subpoenas: a subpoena for production of documents, a subpoena to give evidence, and a subpoena for both the production of documents and to give evidence. Subpoenas are filed with the court registry and served on the person who is required to produce the information. The subpoena must then be served on all parties to the proceedings.

What can be subpoenaed in family law matters?

Information relating to any person relevant to the proceedings can be subpoenaed. It is common in family law matters to subpoena criminal histories, medical records, child protection records and school records. However, it is not always possible to get information relating to someone involved in a court matter by subpoena. Courts take a dim view of broad subpoenas that are issued in a ‘fishing expedition’ aimed at unearthing something that will help their case.

A subpoena must clearly state the ambit of the documentation that is being requested. For example, if a party is seeking medical records relating to domestic violence assaults, you should specify the date range and type of records that you require. Do not request the person’s entire medical history. it is good practice to list all the categories of documents you want included to avoid missing anything that is relevant. In the above example this may be ‘case notes, presentations, treatment records, medications prescribed, reports and referrals.’

A subpoena must identify the person it is addressed to either by name or by office. For example if a subpoena is issued for hospital records from Lady Cilento Hospital, the subpoena would be addressed to ‘The proper officer, Lady Cilento Hospital…’

Failure to identify the specific person responsible for dealing with a subpoena will generally result in the subpoena being rejected.

How do I file a subpoena in a family law matter?

When filing a subpoena, the original document must be filed at the Federal and Family Court of Australia (FCFCA) registry. You must also file enough copies for a copy to be served on each party to the proceeding as well as the person being asked to produce material.

Filing fee

A fee of $55 must be paid for each subpoena filed. If a party is under financial hardship they can submit evidence of this (such as a Centrelink pension or concession card) and ask that the fee be waived.

Serving subpoenas

If the subpoena requires a person to attend court to give evidence, you must arrange for it to be personally served on the named person at least seven days before they are required to give evidence. Personal service occurs when the documents are handed to the person and they are told the nature of the documents. 

If the subpoena requires a person to produce information, the subpoena must be served at least ten days before the date the person is required to produce the material.

Conduct money

Conduct money is money that is paid to the person named in a subpoena to cover any costs incurred in complying with the subpoena.

When a subpoena requires a person to attend court to give oral evidence, conduct money must cover their costs of travelling from their home to the court as well as providing a reasonable allowance to cover accommodation and meals while they were at court.

When a person is subpoenaed to produce information, conduct money must be paid covering the costs of identifying, photocopying and collating the material. different amounts of conduct money are required by different government departments and the police in different states. It’s a good idea to check how much conduct money the organisation requires. To expedite the subpoena, you can provide a cheque when you serve the subpoena on the named person. This is advisable as most organisations will not even start collating material until they have received conduct money.

What happens next?

Provided a subpoena is filed and served properly and conduct money is paid, the named person must comply with the subpoena. However, the person may object to producing a document or to giving evidence if they consider the evidence requested is too broad, is irrelevant, or is covered by privilege.

Once material has been produced in response to a subpoena to produce documents, the party who filed the subpoena may file a Notice of Request to Inspect the material with the court. Once leave is granted to inspect the subpoenaed material, each party may make an appointment to attend court and view the material.

When a person attends court to give evidence in response to a subpoena, they will be subjected to examination-in-chief and cross-examination. 

Parties in family law matters may issue up to five subpoenas. If a party to family law proceedings wants to issue more than five subpoenas, it must apply for leave to do so from the court.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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