Everything you need to know about Subpoenas

What is a Subpoena?

In Family Law, a subpoena is a legal document that can only be issued to a person during proceedings in the Federal Circuit and Family Court of Australia (Court). If you wish to subpoena an organisation, the subpoena must be addressed to a person authorised to act on behalf of that organisation. The purpose of issuing a subpoena is to obtain information and/or documents that will assist the Court in determining the issues in dispute.

A subpoena can be one of 3 types, including:

1. A subpoena for production – compelling a person to produce certain documents.
   
   
2. A subpoena to give evidence – compelling a person to give evidence at a hearing or trial.
   
   
3. A subpoena for production and to give evidence – compelling a person to produce certain document and attend Court to give evidence. This is typically issued when the production of documents alone is unlikely to give the Court sufficient evidence about the issue in dispute. 
   

The Court expects that before a party issues a subpoena, they have attempted to obtain the document or information by way of a disclosure request directly to the other party.

When might a subpoena be appropriate?

This will differ depending upon whether you are before the Court in relation to parenting proceedings or property proceedings.

Parenting Matters

A subpoena may need to be issued for a variety of reasons in parenting matters, and some common examples include, to obtain:

1. Police reports or criminal records where there are allegations regarding family violence or criminal history involving a party, the children, or any third party such as a party’s new partner, or a grandparent.
   
   
2. Medical, psychological or counselling records to understand a child’s or parent’s mental health, treatment history, pathology results or any concerns raised by treating practitioners. For example, doctor’s notes, psychologist or psychiatrist records.
   
   
3. School records where information is required regarding a child’s educational developmental and/or educational needs. For example, to access school attendance records, behavioural reports or communications regarding the child’s wellbeing.
   
   
4. Records of notifications of investigations and assessments conducted by the Department of Families, Fairness and Housing (Department) where the Department has historically or is currently involved with the family or any of the parties.

This is subject to compliance with specific Court rules, and a subpoena can only be issued to the Department where leave from the Court has been granted by the Court.  The Family Law Act 1975 (Cth) (FLA) introduced a new subdivision, “Subdivision DA – Orders for information etc. in child related proceedings”, which came into effect on 6 May 2024. This subdivision was designed to improve communication between the Courts, child protection agencies and the police, by creating an avenue for the Court to immediately request information from the Department and/or the Police in relation to child abuse, family violence, and/or neglect. If the Court makes an order mandating an organisation to share information, a party cannot issue a subpoena requiring the agency to provide documents without leave of the Court.

Property Matters

Subpoenas are typically issued in property proceedings when a party refuses or fails to provide full and frank disclosure of their financial circumstances, or where the reliability of a party’s financial disclosure is in doubt. Some common examples of situations where subpoenas may be necessary include to obtain:

1. Financial records such as bank statements, credit card statements, and loan documents, which can verify a party’s income, expenditure, financial transactions, and movement of assets.
   
   
2. Business or company records where information is required about a party’s business dealings. In this case, a subpoena may be issued to a third party such an accountant for copies of the business’ Financial Statements and Tax Returns.
   
   
3. Employment records, where information is required about a party’s salary and other income benefits (such as share schemes) and/or leave entitlements.

How do I file/issue a subpoena?

A subpoena must be in the approved form and filed with the Court. There is a filing fee for each subpoena issued and generally, you need leave from the Court before requesting the Court issue a subpoena. There are limited circumstances where leave is not required.

What happens after the subpoena is issued?

Once the Court issues a subpoena, a sealed copy of the subpoena must be served on the subpoenaed person (or the person authorised to act on behalf of an organisation, if the subpoena has been issued to an organisation).

The subpoena will identify the date by which service is to be completed and the date by which the subpoenaed person (or organisation) must either produce the documents to the Court Registry or attend Court.

The time for service depends on what type of subpoena has been issued.

Copies of the subpoena must be served on all parties involved in the family law proceedings, including the other party, any Independent Children’s Lawyer, and the person whose documents are being subpoenaed, if they are not a party to the proceedings.

Can a person/organisation object to a subpoena?

A person or organisation may object to a subpoena for one (or more) of the following reasons:

1. The documents requested are not relevant.
   
   
2. The documents are covered by legal professional privilege. For example, confidential communications and confidential documents between a lawyer and a client made foe the dominant purpose of the lawyer providing legal advice or professional legal services to the client, or for use in current or anticipated litigation.
   
   
3. The documents requested disclose sensitive information, and the production of those documents may cause harm to a party or child involved in the proceedings.
   
   
4. The scope of the subpoena is too broad.
   
   
5. The documents relate to “protected confidences” – a new objection category introduced by recent legislative changes to the FLA.

Section 102BA of the FLA defines a “protected confidence” as a communication made in a professional relationship between the confidant (the service provider) and the other person (the protected confider) if the circumstances are such that the confidant would otherwise be under an obligation not to disclose the confidence. Section 102BB of the FLA defines a professional service to be a health service (both physical and psychological health) or specialist service with respect to sexual assault or family violence.

Where parties give consent, pursuant to section 102BF of the FLA, to documents or evidence being adduced, a confidant cannot object.

To object, a Notice of Objection must be filed with the Court. If a Notice of Objection is filed, the Court will list the matter for a hearing to determine the objection. While documents produced pursuant to a subpoena can be released for inspection following the date of production, if a Notice of Objection has been filed, documents cannot be released for inspection until the objection has been determined.

Matters relating to the issuance of a subpoena, as well as compliance or objections to that subpoena, are often complex. If you would like advice about subpoenas or any other family law issues, please contact us on (03) 8672 5222 to arrange an appointment with one of our experienced family lawyers.