Subpoenas can be a powerful tool for gathering evidence and information in family law cases, especially when the other party is unwilling to cooperate. However, the process of requesting, filing, and serving subpoenas is not straightforward and requires careful attention to legal procedures. In most cases, it’s advisable to explore other options before turning to subpoenas. Legal advice can be invaluable in navigating this complex area.
Understanding Subpoenas
A subpoena is a legal document issued by a court that requires an individual or organisation to either provide specific documents or appear in court to give evidence. It’s important to note that subpoenas are not issued automatically—they must be requested by one of the parties involved in the legal proceedings.
For example, in family law disputes, subpoenas may be used when one party refuses to disclose critical financial information, such as bank statements. In such cases, a subpoena can be served to the bank, compelling it to provide the requested documents directly to the court.
Before resorting to a subpoena, ensure you’ve taken all reasonable steps to obtain the required information through other means. Courts typically expect this effort to be demonstrated before approving a subpoena.
Types of Subpoenas in Family Law
There are three main types of subpoenas commonly used in family law:
1. Subpoena for Production
This type of subpoena requires a person or organisation to produce specified documents, such as financial records or superannuation details. It’s crucial to be precise in identifying the documents you need; vague or overly broad requests can lead to disputes or rejection by the court.
2. Subpoena to Give Evidence
This subpoena compels an individual to appear in court and provide oral evidence. The person must be personally served with the subpoena at least seven days before the scheduled court appearance.
3. Subpoena for Production and to Give Evidence
This is a combination of the first two types, requiring both the production of documents and the appearance in court. However, this should only be used when both actions are necessary to achieve your goals.
Filing and Serving a Subpoena
Unlike many other family law documents, subpoenas cannot be filed via the online court portal. Instead, they must be emailed directly to the registry of the Federal Circuit and Family Court of Australia (FCFCA). You’ll need to provide the original subpoena along with enough copies for all parties involved. Including a letter explaining the purpose of the subpoena can also help clarify its intent.
Once filed, the subpoena must be served on the named individual or organisation. For subpoenas requiring the production of documents, service must occur at least ten days before the due date. If the subpoena is for giving evidence, the timeline is reduced to seven days.
What is Conduct Money?
Conduct money is an amount provided to the subpoenaed person to cover reasonable expenses related to complying with the subpoena.
- For Court Appearances: This includes travel costs and allowances for meals and accommodation if overnight stays are required.
- For Producing Documents: This covers costs like photocopying, identifying relevant records, and collating materials.
To expedite compliance, it’s a good idea to include a cheque for conduct money when serving the subpoena.
Responding to a Subpoena
If you are served with a subpoena, compliance is mandatory unless there is a valid objection. Grounds for objection may include:
- The request being overly broad or irrelevant.
- The document being protected by privilege.
In such cases, you should seek legal advice to understand your rights and obligations.
Once the requested documents or evidence have been provided to the court, any party wishing to inspect the material must file a Notice of Request to Inspect. The court may then grant permission for parties to access the information.
Limitations on Subpoenas
The court limits parties to a maximum of five subpoenas. If more are required, you’ll need to apply for permission. This rule is in place to prevent unnecessary or excessive use of subpoenas in legal proceedings.
Key Considerations
Preparing and serving a subpoena is a detailed process that must follow strict legal guidelines. Subpoenas should only be considered when all other avenues for obtaining information have been exhausted. Ensuring that the subpoena is accurate, specific, and legally compliant is crucial to avoid delays or disputes.
Need Assistance?
This article provides general information about subpoenas in family law. If you’re considering applying for a subpoena or have been served with one, consulting an experienced family lawyer can help you navigate the process effectively.
For more information or legal advice, contact us at 03 9670 7440 or email [email protected].