Subpoenas can be issued by the Court during proceedings as a means of obtaining further evidence. Once the Court issues the subpoena, and it is served upon the relevant parties, then the person or organisation named on the subpoena is required to produce the documents requested or attend Court to give evidence and/or produce documents according to the details on the subpoena.
Subpoena To Produce Documents:
In financial and property proceedings, there is a requirement that each party provide full and frank disclosure of their assets and liabilities. Sometimes, one party might not wish to disclose their bank statements and provide the other side with evidence that might assist the other party’s case.
For example, the Respondent to an Application for spousal maintenance might not wish to disclose a bank statement showing a large sum of money received in recent weeks as it may demonstrate a capacity to pay the Applicant spousal maintenance. If the Applicant suspected there were funds in a bank account the Respondent had not disclosed and the Respondent is not forthcoming with such disclosure, the Applicant can request that the Court issue a subpoena to that party’s financial institution or employer to obtain the evidence necessary to proceed. Similarly, if a party suspects the other of gambling their money away, it might be prudent to request the Court to issue a subpoena to that party’s preferred gambling organisation for their customer accounts and betting history.
Subpoena To Attend And Give Evidence/Produce Documents:
A subpoena can also be used to require a witness to attend and give evidence or attend to produce documents. Some experts and professionals who have not been jointly appointed by the parties, or the Court, often require a subpoena to attend Court to give evidence and be cross-examined.
It is important to be careful when issuing subpoenas as there may be evidence contained in the documents produced that do not assist the requesting party’s case, or the subpoena might not produce any documents at all relevant to the case. If a witness is likely to be unpredictable, their evidence at a hearing might hinder rather than help the case the requesting party is running, particularly in circumstances where they are required to attend against their will.
Each subpoena incurs a $55 filing fee and conduct money must be paid to the subpoenaed party to cover the costs of complying with the subpoena. The minimum sum of conduct money required to be paid is $25 though some organisations request a larger sum to comply, particularly expert witnesses giving evidence in Court.
If a person served with a subpoena objects to the subpoena on the basis that the documents requested are privileged, not relevant to the proceedings, or the subpoena constitutes a “fishing expedition”, that party may file an objection to the subpoena and the matter needs to be dealt with by the Court, or otherwise between the parties.
There are many rules governing the use of subpoenas in family law proceedings. It is always a good idea to obtain legal advice from a family law specialist to ensure the rules and the law are complied with to save time and costs.
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