Subpoenas play a very important role in discovering evidence and information in family law matters, especially when the other party is not complying with requests for information.
There is a lot of work involved in applying, filing, and serving a subpoena, which can quickly become a complex exercise. Generally, subpoenas should only be used as a last resort, and we recommend seeking legal advice before applying for a subpoena.
What is a subpoena?
In essence, a subpoena compels a person to produce documents or give evidence. It is a legal document issued by the court at the request of a party to the proceedings. The court does not issue subpoenas unless requested to do so.
An example of when you may wish to request a subpoena in your family law matter, is when the other party refuses to disclose their financial documents, such as bank account statements. Once issued, the subpoena can be served to the other party’s bank, requiring them to produce the other party’s bank statements directly to the court.
Generally, you should take all reasonable steps possible to extract information you need from the other party before applying for a subpoena.
Types of different subpoenas in family law
- A subpoena for production. This is where a party is ordered to produce documents by the court, such as bank accounts, superannuation details or any other thing described in the subpoena, by a specific date and time. The court will specify when the documents or things are to be provided.
Subpoenas must specifically state the type of document sought otherwise the other party may dispute the validity of the subpoena. It is vital the subpoena is served on the person it is intended for by ordinary service, at least ten days before the date they are required to produce the material.
- A subpoena to give evidence. This is an order for someone to attend court to give evidence. A party that has been subpoenaed to give evidence must attend court on a date and time specified, unless excused by the court. It is important that the subpoena is served on the named person by hand at least seven daysbefore they are required to give evidence.
- A subpoena for production and to give evidence is a combination of the above two subpoenas. You should not issue a subpoena for both production and to give evidence if producing the documents on their own would be sufficient to obtain the desired information.
If you believe you may need to apply for a subpoena, we recommend you speak to an experienced family lawyer.
Filing a subpoena
The original subpoena must be filed at the Federal Circuit and Family Court of Australia (FCFCA) registry. It is important to file sufficient copies for the subpoena to be served on each party in the proceedings, especially for the person or organisation being asked to produce material.
Filing a subpoena is different to filing other family law documents. You cannot file or upload the document onto the online court portal as with other family law documents. The subpoena must be emailed directly to the relevant Court Registry. We also recommend that a letter in support of the subpoena accompanies the email. If the subpoena is not correctly filed, it may have no legal standing.
Those that are self-represented must first obtain leave from the Court prior to filing any subpoenas. This is to ensure there is a basis to issue the subpoena, that the scope of the schedule in the subpoena is specific and relevant to the issues in the proceedings, and that the subpoena is in compliance with the rules.
Conduct money and other fees
Conduct money is money that is paid to the named person on the subpoena to meet their costs in complying with it. If conduct money is not provided then the named person is not required to comply.
The minimum amount of conduct money is $25 or such other sum as agreed to or ordered by the court.
Conduct money must be paid to cover the costs of traveling from a person’s home to court if they have been served with a subpoena to give evidence. They must also be provided with a reasonable allowance to cover accommodation and meals during the period of attendance at court.
Conduct money must be paid to cover costs of identifying, photocopying, and collating material when a subpoena requires a person to produce information. To help speed up the completion of the subpoena, you can provide a cheque for the conduct money together with the subpoena when you serve it on the named person.
The courts have recognised that an organisation that complies with a subpoena is entitled to have their costs and expenses reimbursed so that it is not out of pocket as result. This is particularly important where they have no interest in the proceedings. If the schedule of the subpoena is onerous then you may seek an order from the Court to pay the amount of any reasonable loss or expense incurred in complying with the subpoena including:
- Advice as to the validity of the subpoena and whether it needs to comply with all or part of the schedule.
- Corresponding with the issuing party regarding the scope or terms of the subpoena with the view to narrow or clarify the scope of documents to be produced.
- Advice in relation to any documents that may be regarded as privileged due to the confidential nature of the documents or information requested.
- Advice on restriction to access of documents.
- Attendances in court to oppose the whole of the subpoena or in part.
If your organisation has been served with a subpoena and you are not a party to the proceedings then should consider obtaining legal advice about your obligations and your ability to recover the costs associated with compliance.
You must also pay witness fees for each person you subpoena to attend court to give evidence. Generally this is $75 for each day, or part of the day that the person is absent from their place of employment or residence. Expert witnesses on the other hand will entail an agreement on cost or an amount that the court will allow and is usually much higher than the general witness fee.
What happens once a subpoena is served?
If a subpoena is filed and served in accordance with the rules, and conduct money is paid, the named person must comply with the subpoena. However, the named person may object to producing a document if they consider the document requested is too broad, is irrelevant, or covered by privilege. If you have been served with a subpoena and you believe that these circumstances apply to your situation, we recommend you obtain legal advice.
Once all the material has been produced in response to the subpoena, you may file a Notice of Request to Inspect the material. When leave is granted to inspect, each party may make an appointment to view the material.
You are allowed to issue a maximum of five subpoenas. If you would like to issue more than five, you must seek leave from the court.
Conclusion
Preparing, applying, filing, and serving a subpoena can be a complex process. A subpoena must be the correct type and suitable for your circumstances. Subpoenas should only be used when you have exhausted all other avenues to obtain information from the other party to your family law matter.
This information is for general purposes only. We recommend seeking legal advice before applying for a subpoena to ensure the subpoena is prepared and served correctly the first time.
If you or someone you know wants more information or needs help or advice, please contact us on 61 2 9212 1099 or email info@dls-lawyers.com.
