Subpoenas

A subpoena is a legal document issued by the court during proceedings to obtain evidence. Once issued and served, the person or organization named in the subpoena is legally required to either:

• Produce the requested documents; and/or 
• Appear to give evidence at a hearing before the Court. 

Subpoenas are a tool that can be used to ensure that all relevant information is available to the Court and to the parties to inform them when making Orders or reaching an agreement.

Subpoena To Produce Documents

In financial and property proceedings, each party must provide full and frank disclosure of their financial position, including their assets, their liabilities, and their superannuation. However, there are situations where a party may fail or refuse to provide some, or all information. 

In these circumstances, a subpoena can be used to obtain documents directly from third parties such as banks and other financial institutions, employers, medical providers, emergency services, cryptocurrency firms, and gambling institutions, amongst others.

For example, a party responding to a spousal maintenance application may not want to disclose a bank statement showing a large sum of money received in recent weeks. If the other party suspects undisclosed income or assets, they can request the court to issue a subpoena to obtain relevant bank records or employment information.

Similarly, if there are concerns that funds have been dissipated through gambling, a subpoena can be issued to obtain betting records and account histories.

Subpoena To Attend and Give Evidence/Produce Documents

A subpoena may also require a person to attend court to give evidence, and/or produce documents. 

Some experts and professionals, including those who have not been jointly appointed by the parties, or the court, may require a subpoena to attend court to give evidence and be cross-examined. 

It is important to be careful when issuing subpoenas because there may be evidence contained in the documents produced that do not help your case. As both parties are typically provided access to the subpoenaed material, parties must consider that they may obtain evidence that may instead support the other party’s case. 

Further, other considerations include that the subpoena might not produce relevant documents, and witnesses may be unpredictable and may provide unhelpful evidence, that could damage the strength of your case, especially is they are compelled to attend against their will.

Costs and Fees

There are several costs/fees associated with subpoenas, including:

1. A filing fee for each subpoena of $65; and 
2. Conduct money, which must be paid to the subpoenaed party to cover the cost of them complying with the subpoena. Conduct money is not a set amount, and is what is reasonable in the circumstances, which is an amount determined by either the complying party, or the Court (if objected to). The minimum sum of conduct money required to be paid is $25 though most organisations require a larger sum to comply, particularly expert witnesses giving evidence in court. These sums can range up to several thousand dollars, especially when the documents that are to be produced are particularly voluminous.

Objecting to a Subpoena

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, which would require the matter to be dealt with by the court, or otherwise between the parties.

There are strict rules governing the use of subpoenas in family law proceedings. Proper use can strengthen your case, while misuse can lead to unnecessary costs and delays. To ensure compliance with the rules and the law, and to save time and costs, please contact Armstrong Legal.