A subpoena is a legal document issued by the court at the request of a party or a party’s lawyer that requires a third party to produce documents to the court or requires a person to attend court in person at a specific date and time.

The purpose of a subpoena is to ensure that all relevant information is available to the court.  There are strict rules that must be followed by a party or lawyer issuing a subpoena in family law matters.  In this article, we outline some of those rules.

The subpoena

Subpoenas are issued by the court to third parties at the request of either a party to the family law proceedings or a party’s lawyer.  A subpoena must correctly identify the third party that is being subpoenaed.  Third parties may include an individual, organisation, government department, company, financial institution etc.

The subpoena will either state that the third party must produce documents to the court, attend court to give evidence or both.

If the subpoena is for the production of documents, it must identify the documents that need to be produced and also the time and place for production. Generally, third parties must be given a period of at least 14 days to comply with the subpoena.

The party or legal practitioner issuing the subpoena must file the subpoena with the court before it is served on the relevant third party. A filing fee must also be paid to the court at this time. The amount of the filing fee generally changes as of 1 July each year.

Service of a subpoena

Generally, a subpoena must be served on the third party named in the subpoena by hand. When serving a subpoena conduct money must also be provided to the third party. This money must be sufficient to cover the third party’s reasonable costs of complying with the subpoena. For example, the costs of retrieving and photocopying the documents needed to be produced to the court in accordance with the subpoena.

If a third party is subpoenaed to attend court to give evidence, the reasonable expenses of complying with the subpoena may include the costs of meals, accommodation and travel for that person.

What happens to the documents produced?

Once the documents have been produced, they are stored at the court.  Access to documents produced under subpoena is restricted. Generally only the parties themselves or the legal representatives of the parties are entitled to inspect the documents, although the court may also make specific orders for the documents to be made available to relevant third parties such as court appointed Psychiatrists.  The documents produced on subpoena cannot be removed from the court registry.

Any documents produced on subpoena are either destroyed by the court or returned to the third party who produced them after the court proceedings are finalised.

Objecting to a subpoena

A subpoena is a legal document and therefore the third party that is subpoenaed must comply with it.  There are certain circumstances, however, when the third party subpoenaed or a party to the proceedings can object to a subpoena.  Some examples include when the subpoena is not served correctly, if the subpoena is phrased so broadly as to make it almost impossible to gather and organise the documents requested, or if the documents requested are not relevant to the proceedings.

If you wish to object to the subpoena, you can do so by making an application to the court.  We can advise you on the likelihood of success of your objection and we can also make the application on your behalf.

Next steps

Subpoenas are an important way of obtaining the information you need to ensure that the court has all the relevant facts to properly determine your matter.  If you need more information in relation to a family law matter or you have been served with a subpoena and you are unsure of how to proceed, then please contact Owen Hodge Lawyers on 1800 770 780 or contact us via ohl@owenhodge.com.au  to make an appointment with one of our family law solicitors.