During the course of family law proceedings, a party may seek to file a subpoena. A subpoena is a legal document issued by the Court that can require the production of documents, attendance to give evidence or both.
Part 15.3 of the Family Law Rules 2004 and Part 15A of the Federal Circuit Court Rules 2001 sets out relevant matters to consider when issuing a subpoena in family law proceedings.
It is appropriate to request a subpoena if a person declines to give evidence or produce documents or cannot do so. However, Part 13.1 and 13.2 of the Family Law Rules 2004 create a broad and ongoing requirement for disclosure by a party to family law proceedings. It is certainly sensible to first make relevant requests for disclosure concerning this obligation. Other options, such as requesting a s69ZW report (Family Law Act 1975) from a prescribed State or Territory agency to provide the Court with documents in child-related proceedings, is another effective option. Documents that may be obtained by way of a subpoena or the alternate options advanced can include (but are not limited to) criminal records, child protection records, medical records and school records.
There are some basic requirements for a family law subpoena and restrictions imposed by the Family Law Rules. These include:
- The person subpoenaed must be identified.
- The ambit of material being subpoenaed must be clear.
- Unless a court orders otherwise, a subpoena must not be served on a person under 18 years of age.
- If you do not have sufficient time for service of the subpoena in accordance with the rules, you may require permission to file it. There are also varying requirements for personal or ordinary service in the rules depending on your subpoena’s purpose.
- Approval to issue a subpoena also can vary for a self-represented litigant unless a registrar has given prior consent.
- A request must be made pursuant to rule 15.34 for the production of a document held by another court.
- There is a court filing fee to issue a subpoena.
In the Federal Circuit Court, a party or independent children’s lawyer must not request the issue of more than five subpoenas in a proceeding according to rule 15A.05 of the Federal Circuit Court Rules 2001.
Apart from legal fees and a Court filing fee to lodge the subpoena, you may be required to pay conduct money to the named person in the subpoena. If you do not provide this money, compliance is not required. Usually, conduct money is the costs of copying or preparation of documents for compliance with the subpoena.
It is important to note that the material produced on the subpoena is not provided to the person who seeks to issue the subpoena. The material is produced to the Court and will remain with the Court subject to access arrangements as coordinated by the Court.
Parties to the proceedings may object to access to documents provided to the Court. For example, if the documents requested are irrelevant, privileged or the breadth of the documents requested are merely a ‘fishing expedition’. Documents produced upon subpoena are to be destroyed at the conclusion of the relevant proceedings.
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