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Understanding the Process of a Family Court Subpoena in Australia

Subpoena | Justice Family Lawyers

If you are involved in a family law matter, you may need to obtain or provide evidence to support your case.

One way to do this is by using a subpoena. 

This blog post will explain what it is, how to apply for one, how to serve it, and how to comply.

We will also discuss issues and challenges when using subpoenas in family law matters, such as failure to comply, costs, and objections.

What is a Subpoena?

A subpoena is a formal legal document that a court issues at the request of a party involved in a lawsuit. 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.

For What Reasons Will the Family Court Order a Subpoena in Australia?

The Family Court may issue a subpoena in Australia for many reasons, generally as part of gathering information and evidence in a family law case. Here are a few scenarios where the court might order one:

  1. Verification of Information: The court may issue one if additional evidence is required to support one party’s information. For example, financial records could be required to verify income and assets during a dispute about property settlement or spousal maintenance.
  2. Gathering Evidence: The court may issue it to collect evidence that supports a party’s case. This could involve documents related to child welfare from schools, doctors, or child protection agencies in a child custody dispute, for example.
  3. Compelling Witness Testimony: If a person’s testimony is necessary for the case, the court can issue it to ensure they attend the hearing and provide evidence.

The court doesn’t issue subpoenas on its initiative but in response to a party’s request. The party requesting it must reasonably believe that the documents or witness testimony they seek are relevant and will add value to their case.

It must be used responsibly and not to harass, intimidate, or put an unreasonable burden on the party to whom it is directed. Any misuse of it may have legal consequences.

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 one 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.

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 (duces tecum), testify in a court case (ad testificandum), 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 court summon, it would be beneficial to consult with a lawyer. A lawyer can explain the process to you, help you understand your rights, and provide advice on responding 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 against it. 
  5. Comply with the Subpoena: Failing to do so can result in legal penalties, including fines and imprisonment 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:

Prepare the Application: The person applying for one (the applicant or their lawyer) must fill out the relevant forms. There are different forms for production, giving evidence, and both producing documents and giving evidence.

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 may be a fee associated with filing the form.

Serve the Subpoena: After the court issues it, it must be served on the person or organisation named in the court summon (the respondent). It must be served in a manner that complies with the Family Law Rules, which often involves serving the document in person. A copy of it must also be served to each party to the case.

Comply with Conduct Money Requirements: If a person must attend court to give evidence, conduct money (a sum to cover the person’s reasonable expenses to attend court) must be provided when the good is served.

File a Notice of Service: After it has been served, a Notice of Service, along with any affidavit supporting the service, should be filed with the court to confirm that the respondent received it.

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. Ignoring or not complying with a subpoena can lead to serious consequences, such as being held in contempt of court, which can result in penalties, including fines or imprisonment.

However, there may be legitimate reasons for not complying with a subpoena:

Relevance: The requested documents or testimony may not be relevant to the issues being determined by the court.

Overly Broad or Oppressive: The subpoena may be considered “fishing,” meaning it is too broad, vague, or oppressive.

Privilege: The documents or information may be protected by legal privileges, such as client-attorney privilege.

Public Interest: There may be a public interest reason not to comply, such as in national security situations.

If any of these situations apply, you should consult a lawyer who can guide you on formally objecting to the subpoena. You must act quickly, as there are often short deadlines for challenging a subpoena.

It’s also important to note that you must keep the documents requested in the subpoena while the objection is resolved.

Getting legal advice when dealing with subpoenas is essential, as the process and potential implications can be complex.

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.

In addition to potential legal penalties, the court may make orders or draw adverse inferences from your case if you fail to produce documents as required by a court summon.

For example, the court could infer that the documents, if produced, would have been unfavourable to your arguments.

It’s also worth noting that simply not having the documents or information requested is not a valid reason for non-compliance. If you receive it for documents you do not have or cannot access, you must explain why you cannot comply.

If you are unable or unwilling to comply with one, it’s crucial to seek legal advice as soon as possible. An attorney can help you understand your options, which might include challenging the validity or terms of a court summon.

Please note that it’s crucial not to ignore a court summon. Even if you believe it’s invalid or unenforceable, taking legal steps to protect your rights and avoid potential penalties is essential.

Do I Need to Pay for a Family Court Subpoena?

Yes, in Australia, if you’re the party issuing the subpoena you’ll typically need to pay a filing fee to the Family Court. However, fee exemptions or reductions, such as those due to financial hardship, may be available in some circumstances.

Further, if it requires a person to attend court to give evidence, you must also provide ‘conduct money’ to the person you’re summoning.

Conduct money is meant to cover the reasonable expenses of the person complying with it, such as travel costs to and from the court.

Moreover, costs may be associated with copying and delivering the documents requested in a subpoena for production. Some organisations, like hospitals or schools, may charge fees to recover their costs for searching and copying documents.

Typically, the party issuing it is responsible for covering these costs. If a party cannot afford these costs, they should seek legal advice, as their inability to pay may affect their ability to use it to obtain the needed evidence.

Refer to the Family Court’s website or consult a legal professional to understand current procedures and requirements.

Failure to provide the necessary payments could invalidate it, and the person or organisation being served may not be legally required to comply. 

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

You may feel overwhelmed and confused if you face a family law matter involving a subpoena.

You may need to learn how to obtain or provide the evidence you need or how to protect your rights and interests.

That’s why you need the best family lawyers to guide you through the process. Justice Family Lawyers can help you apply for, serve, or comply with one promptly and cost-effectively.

We can also advise you on dealing with any issues or objections and ensuring the confidentiality and privacy of your sensitive information.

Don’t let it stress you out. Contact Justice Family Lawyers today for a free consultation and learn how we can help you with your family court subpoena in Australia.

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