Subpoenas in the Family Court

Subpoenas in the Family Court

What is a Subpoena

A subpoena is a legal document issued by the Court, at the request of a party involved in court proceedings which involves requiring the subpoenaed party to either produce documents or give evidence at a hearing.

Subpoenas in the Family Court

In family law matters, proceedings can be held either in the Federal Circuit Court of Australia or the Family Court of Australia. During these proceedings, it may be necessary for a party to issue a subpoena for relevant information to be provided in Court. Ordinarily, it may be necessary to issue more than one subpoena in Court proceedings.

Subpoenas are generally issued when one party fails to provide all of the necessary documents to the court.  Subpoenas are often issued to banks or superannuation funds for purposes of seeking production of financial material related to the other party. In parenting matters, an Independent Children’s Lawyer, a lawyer who acts for the children in parenting matters, will often issue subpoenas. This may be to the children’s schools and doctor if health issues have been raised. They may also issue a subpoena to either parent’s doctor, if necessary.

Filing for a Subpoena

In some proceedings, you must seek the court’s approval before issuing a subpoena. This is especially relevant when there are court orders in place or there are less than seven days before a hearing commences. In the Federal Circuit Court, there is a capping of no more than five subpoenas to be issued by each party, unless permission is granted by the Court. There is no restrictions imposed in the Family Court for subpoenas.

If you gain the court’s approval, the filing of the subpoena can proceed as normal. The original subpoena must be filed at the Federal Circuit Court or Family Court registry (depending which jurisdiction the matter is in). You must also file enough copies for one to be served on each party in the proceeding as well as the person or organisation being asked to produce material.

Importantly, the court can refuse the issuance of a subpoena if it finds that the subpoena amounts to a ‘fishing expedition’. That is, the deliberate attempt by one party to search or investigate with the hope of discovering information on the other party. Therefore it is important that when issuing subpoenas in family law, one must ensure that they are seeking information or documentation relevant to the current court proceedings.

Filing fee

A subpoena will incur a filing fee of $55.00 per subpoena.

Serving a Subpoena

Once the subpoena has been filed, it must be personally delivered (served by hand) to the person it is addressed to.

If you are serving a subpoena to a bank or financial institution, a small amount of money must be provided to the subpoenaed party. This is known as ‘conduct money’ for the production of documents. Some banks will charge a set amount, so it is important to find out what the production of documents may cost where possible. You also need to provide a copy of the court’s brochure with the subpoena.

Objecting to a Subpoena

A party is entitled to raise an objection to the issuance of a subpoena. A number of objections which can be raised involve:

  • The documents requested are irrelevant
  • The documents are privileged
  • The terms of the subpoena are vague or non-specific
  • Insufficient time given to comply with the subpoena
  • Subpoena issued without a ‘legitimate forensic purpose’
  • Insufficient conduct money

In order to do so, you have to file a Notice of Objection and the matter will subsequently be listed before the court for determination.

Contact us

If you would like more information on how we can assist you with your family law matter, do not hesitate to contact us on 9963 9800 or via the contact form here.

COVID-19 and the Family Court system: What changes are being made?

COVID-19 and the Family Court system: What changes are being made?

COVID-19 is impacting the operation of every facet of life and work around the world. There is no exception for the courts in Australia which have seen major changes to the procedure and operation of the court system. In this article, we explore how the Family Court in particular is dealing with the COVID-19 pandemic.

The Changes

The Court has altered its operation in a variety of ways to ensure the health and safety of litigants and court staff and members.

Hearings:
The majority of court hearings and events will now be done remotely via a telephone or video conference. The Court has said that telephone appearance procedures will generally be most appropriate for the following:

  • First Return Duty Lists;
  • Abridgements;
  • Mentions;
  • Directions; and
  • Interim Hearings

The Court will notify the parties as to whether their matter is able to be dealt with remotely. If it is possible, the judge and court staff will be in the courtroom during the time of the listings. Interpreters may also appear by telephone, if required. The parties can attend by telephone or video conference in the comfort of their homes or office.

Once the Court has notified the parties of the requirement to attend court via telephone, a party may ask that the matter not be heard by telephone, due to it being impractical. They may also say that their matter is urgent and requires the parties to attend in person. In this circumstance, the matter may be adjourned or remain listed for a face-to-face hearing. However, the Court has strictly imposed a limit on the number of matters which will be dealt with in open court.

Changes to Everyday Operations:
There are a number of changes the Court has imposed as a result of the Covid-19 pandemic:

  • Non-urgent matters may be adjourned to a future date (meaning postponed). This is at the discretion of the judicial officer.
  • The registry services of the Court will be provided remotely via telephone or online services.
  • In urgent circumstances, face-to-face interaction in a registry may be allowed, but only after an initial assessment.
  • All documentation will need to be filed electronically through the online Commonwealth Courts Portal.
  • For urgent matters (such as those involving domestic violence) which are held in court, matters will not be listed for more than 1.5 hours, and with sufficient time in between to allow cleaning of the court to occur.
  • To reduce the length of any face-to-face hearing, where possible, hearings are to be complemented with written submissions or conducted via telephone, if necessary

Impact for Future Proceedings

If you are involved in current proceedings before the Court, there may be changes in the way your matter is dealt with. It is important to be prepared for changes in the way your matter runs and what form of communication will be utilised. If your matter is classified as ‘non-urgent’ you should be prepared for your matter to be potentially postponed for a period of time.

Further information relating to court operations and COVID-19 can be accessed from the COVID-19 updates and information page on the Family Court’s website.

Where Can I Find More Information?

It is important to be fully aware of the impact COVID-19 may have on your legal matter. If you would like further information, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via email at [email protected].

Etheringtons Solicitors extends our deepest sympathies to those experiencing hardship or health concerns during this difficult time. Further information about COVID-19 can be found at: www.health.gov.au.