Subpoenas are an important tool used in family law proceedings to obtain information or evidence that may be relevant to a case.

What is a Subpoena?

A subpoena is a legal document issued by the family courts, at the request of a party to proceedings, requiring the recipient to produce documents or attend court to give evidence.

How are Subpoenas used in the Family Court?

In family law matters, proceedings are conducted in the Federal Circuit and Family Court of Australia (the “Court”). During these proceedings, a party may need to issue a subpoena to obtain relevant information from the Court. It is not uncommon for more than one subpoena to be issued in a matter.

Subpoenas are generally issued when one party has not provided the necessary documents.  Subpoenas are commonly issued to banks, employers or other financial institutions to obtain documents that one party either cannot access or has not disclosed.

In parenting matters, an Independent Children’s Lawyer (ICL) – a lawyer appointed to represent the best interests of the children – will often issue subpoenas. These may be directed to the children’s schools or medical practitioners where health or welfare concerns have been raised.

Limitations of Using Subpoenas

In some circumstances, a party may seek the Court’s leave before issuing a subpoena. This may be required, for example, where subpoenas are sought close to a hearing date or where the Court has made orders limiting or regulating the use of subpoenas.

If you are self-representing, you must seek leave from the court before issuing subpoenas.

The Court may impose limits on the number of subpoenas a party can issue, and leave may be required to issue additional subpoenas.

Once any required leave is obtained, the subpoena can be filed in accordance with the Court’s rules. The subpoena is filed with the court registry, and sufficient copies must be provided for service on each party to the proceedings and on the person or organisation required to produce documents or give evidence. Importantly, the Court may set aside a subpoena that it amounts to a “fishing expedition” that is an attempt by a party to search for information without a clear or legitimate forensic purpose. Subpoenas must be used to obtain material that is relevant to the issues in dispute in the proceedings. Accordingly, when issuing a subpoena in family law matters, it is essential to ensure that the documents or evidence sought are specific and directly relevant to the case.

Subpoena Filing Fee

A subpoena attracts a filing fee. Filing fees are not set by the Court, but by Federal Government regulations, specifically the Family Law (Fees) Regulations 2022. These fees are subject to periodic review and are typically updated in accordance with gazetted annual increases to federal court and tribunal fees (for example, from 1 July each year). GST does not apply to court filing fees.

Serving a Subpoena

Once the subpoena has been filed, it must be served on the person or organisation to whom it is addressed, as well as on all other parties to proceedings. Service may be effected personally or by other methods permitted under the Court rules.

When serving a subpoena for production, the issuing party must provide “conduct money” to the party requesting the subpoena. This is an amount sufficient to cover the reasonable costs of complying with the subpoena. For example, banks or financial institutions may require payment for the production of documents, and it is advisable to confirm these costs in advance where possible.

Objecting to a Subpoena

A party may object to a subpoena or apply to have it set aside. Grounds for objection may include:

• The documents sought are not relevant to the proceedings
• The documents are subject to professional legal privilege
• The terms of the subpoena are overly broad, or insufficiently specific
• Insufficient time has been provided to comply with the subpoena
• Subpoena issued without a ‘legitimate forensic purpose’ (e.g. amounts to a “fishing expedition”)
• Insufficient conduct money has been provided.

To formally raise an objection, the party must file a Notice of Objection, after which the matter will be listed before the Court for determination.

Contact us

If you are considering issuing a subpoena, or have received one in relation to family law proceedings, it is important to understand your rights and obligations and ensure that the subpoena is properly prepared and served. Obtaining legal advice early can help you avoid unnecessary costs and ensure that the subpoena is used appropriately and for a legitimate purpose.

If you need to speak to an experienced family lawyer, please do not hesitate to contact Etheringtons Solicitors in North Sydney on 9963 9800 or via the contact form here.