Subpoena in Australia: Your Ultimate Guide

If you are involved in a family law matter in Australia, you may need to obtain or provide evidence to support your case. One way to do this is by issuing a subpoena, a formal legal document issued by a court at the request of a party to the proceedings. This blog post will explain what a subpoena is, how to apply for one, and how to comply if served with one.

What is a Subpoena?

A subpoena is a formal legal document that a court issues at the request of a party involved in legal proceedings. Its purpose is to compel a person to do one or both of the following:

1. Testify in a legal proceeding: This type, often called ad testificandum, requires the person to appear in court (or sometimes in a deposition) on a specified date to give testimony related to the case.
2. Produce documents or other tangible evidence: This type, often called duces tecum, requires the person to produce documents, materials, or other evidence that is relevant to the case.

Reasons for Ordering a Subpoena in Family Court

Subpoenas are not issued by the court on its own initiative; rather, a party to the proceedings must request one by demonstrating that the sought documents or testimony are relevant and valuable to their case.

Subpoenas are crucial tools in Australian family law proceedings, allowing the Family Court to gather important information and evidence. The court may issue a subpoena for three main reasons:

1. To verify information provided by a party, such as financial records in property settlement or spousal maintenance cases.
2. To gather evidence that supports a party’s case, like documents related to a child’s welfare in custody disputes.
3. To compel witness testimony when a person’s evidence is necessary but they are unwilling to appear voluntarily.

What are the Different Types of Subpoenas in Family Law?

In family law proceedings in Australia, there are generally three types of subpoenas that can be issued:

1. Subpoena for Production: The recipient must produce certain documents or records to the court. These could be financial, medical, school, or other documents relevant to the family law dispute. The subpoenaed materials are generally delivered to the court and held until the hearing, when they may be used as evidence.
2. Subpoena to Give Evidence: This compels a person to appear in court to give oral evidence as a witness. The person must attend court on the specified date and may be questioned by both parties legal representatives.
3. Subpoena for Production and to Give Evidence: This combines the first two types. The recipient must produce certain documents or records and appear in court to give oral evidence.

Also read: Who Pays Court Fees in a Financial Statement?

What Should I Do After Getting Subpoenaed?

Receiving a subpoena can be intimidating, but it’s essential to understand that it’s a standard part of many legal proceedings. Here’s what you should do if you’ve been subpoenaed:

1. Read the Subpoena Carefully: Understand what is being asked of you. Are you required to provide documents, testify in a court case, or both? Make a note of the specific documents you’re asked to produce, if applicable, and the date, time, and location you’re supposed to appear in court if required.
2. Consult with a lawyer: If you have any questions about the subpoena or your obligations, it is beneficial to consult with a court lawyer. A lawyer can explain the process to you, help you understand your rights, and guide you on how to respond to the subpoena.
3. Prepare the Requested Documents or Evidence: If the subpoena asks for documents, gather those materials immediately. Make sure you keep the records in a safe and organised manner. You must typically deliver these to the court, not the party that subpoenaed you.
4. Challenge the Subpoena if Necessary: If you believe the subpoena is unreasonable or invalid (for instance, if it’s overly broad, irrelevant to the case, or would cause you undue hardship), consult with a lawyer about challenging it in court. You must act quickly, as there are often short deadlines for objecting.
5. Comply with the Subpoena: Failing to do so can result in legal penalties, including fines and charges for contempt of court.

How Do You Apply for a Subpoena in the Family Court of Australia?

To apply for a subpoena in the Family Court of Australia, the following general steps should be followed:

1. Prepare the Application: The person applying for a subpoena (the applicant or their lawyer) must fill out the relevant forms. It is important to specify on the form whether the subpoena is for the production of documents, attendance at court, or both.
2. File the Application: Once the form is completed, it must be filed with the Family Court. This can typically be done online or by mailing or delivering the document to a Family Law Registry. There will be a fee associated with filing the form which can be found on the court’s website.
3. Serve the Subpoena: After the subpoena has been issued by the court, it must be served on the person or organisation named in the document (the respondent) and any other parties to the proceedings.
4. Comply with Conduct Money Requirements: If a person is required to attend court to give evidence or produce documents to the court, conduct money (a sum to cover the person’s reasonable expenses) must be provided.

Do I Have to Comply With a Family Court Subpoena?

Yes, when you receive a subpoena from the Family Court,  you are legally obligated to comply with it unless you have a valid reason not to and have appropriately objected through legal processes.

Simply not having the documents or information requested is not a valid reason for non-compliance. If you are requested to produce documents you do not have or cannot access, you must explain why you cannot comply.

What are the Grounds for Objecting to Subpoena in Family Court?

There are several grounds for objecting to a subpoena in family court:

1. Irrelevance: The documents or information sought by the subpoena must be directly relevant to the issues in dispute in the family law case. If the information is not relevant, it can be objected to on this basis.
2. Privilege: Certain communications are considered privileged and cannot be disclosed, such as:
   • Legal professional privilege: This protects confidential communications between a lawyer and their client.
   • Settlement negotiations privilege: This protects communications made during genuine attempts to settle a dispute.
   • Public interest immunity: This protects information whose disclosure would be against the public interest.
3. Oppression or undue burden: A subpoena can be objected to if it is oppressive or places an undue burden on the person required to comply. This could include requiring the production of a large volume of documents, incurring excessive costs, or requiring unreasonable travel.
4. Overbreadth or lack of specificity: A subpoena should be specific and clearly define the documents or information sought. If it is too broad or vague, it can be objected to on this ground.
5. Abuse of process: A subpoena cannot be used for an ulterior purpose, such as to harass or intimidate the other party.

What Happens When You Don’t Comply With a Subpoena?

If you fail to comply with a subpoena without a valid reason, you may be held in contempt of court.

Contempt of court is a serious matter, and the penalties can include fines or even imprisonment, depending on the severity of the non-compliance and the jurisdiction.

If you are unable or unwilling to comply with a subpoena, it’s crucial to seek legal advice as soon as possible. A solicitor can help you understand your options, which might include challenging the subpoena.

Do I Need to Pay for a Family Court Subpoena?

Yes, in Australia, if you’re the party issuing the subpoena you’ll need to pay a filing fee to the Family Court. Refer to the schedule of fees on the Family Court’s website for current fees.

The issuing party is also generally required to provide ‘conduct money’ to the individual or entity receiving the subpoena. Conduct money is intended to cover the reasonable expenses of the complying party, such as photocopying costs and travel expenses.

Failure to provide the necessary payments can invalidate the subpoena.

Do You Need Help With A Family Court Subpoena In Australia?

Facing a family law matter involving a subpoena can be a daunting and perplexing experience. You may be unsure about the proper procedures for obtaining or providing evidence, or how to safeguard your rights and interests effectively. During this challenging time, it’s crucial to have the support and expertise of a trusted legal team.

At Justice Family Lawyers, we understand the intricacies of family court subpoenas and are dedicated to guiding you through the process with clarity and confidence. Our experienced family lawyers will work diligently to help you apply for, serve, or comply with a subpoena in a timely and cost-effective manner.

Don’t let the complexities of family court subpoenas overwhelm you. Take the first step towards securing the legal guidance you deserve by contacting Justice Family Lawyers today for a free consultation.