Subpoenas in Family Law Matters

10-07-2014    |    Resource

A subpoena is a document issued by the Court to require the production of evidence or documents from an individual or an organisation (the 'named party'). In the family law courts, this often takes the form of a request to produce documents.

 Lawyers will issue subpoenas for a range of reasons, each of which have the ultimate goal of assisting the Court in reaching making a determination in relation to disputed issues. Lawyers will often be seeking to obtain independent evidence that supports their case, or corroborates their client's evidence or evidence that damages or discredits the other party's position. Subpoenas may also be issued to obtain evidence as to what further enquiries need to be made in developing the case, or used in cross-examination to test the evidence of a witness.

 Who can be subpoenaed

 In theory, anyone can be subpoenaed to produce documents to the Court, or to attend Court to provide evidence in person. In practice, it is often only a limited range of people and organisations that are served with subpoenas. In parenting matters this will often include the Police, the Department of Family and Community Services (previously DOCS), schools, doctors, counsellors/therapists and hospitals. In property settlement matters, subpoenas are more likely to be issued to banks and accountants.

 In family law parties, the parties are limited in the amount of subpoenas that they can issue, so who is subpoenaed is often the subject of careful consideration.

 What happens when a subpoena is issued

 When a subpoena is issued, the person or organisation named in the subpoena is served with a copy of the subpoena, and is required to comply with the request (with some limited exceptions) within a set amount of time. If you are served with a subpoena, you are entitled to receive conduct money from the issuing party, however this may not cover the full expense of complying with the subpoena. In most cases, the named person will be required produce a copy of their files including notes, records, correspondence, assessments, and/or reports to the Court.

 Once the documents are produced, they are then stored with the Court. Access to the documents produced under subpoena is restricted, and only authorised people are able to inspect the material produced under subpoena. In most cases, the legal representatives of the parties are allowed to inspect the documents, however the documents cannot be removed from the Court and photocopying the materials is usually not permitted except in limited circumstances (for example, to provide evidence to an expert).

 The material produced under subpoena may be influential in determining the course of a matter before the Court. However, if a party wishes to have subpoenaed materials formally entered into evidence, they would generally have to seek to tender the document into evidence during the course of a hearing.

 Objecting to a subpoena

 Once a subpoena has been issued, the person named in the subpoena or the parties or another interested person may object to the subpoena. There are a number of circumstances that may give rise to an objection. If a party or the named person objects to the subpoena, they may seek an Order from the Court to have the subpoena set aside in part or in whole, or may object to the production, inspection or photocopying of the documents requested.

 Subpoenas can be a useful tool in the conduct of a case before the Courts, and can also be a great source of stress if you have been served with a subpoena. If you have any questions about subpoenas or any other matters relating to family breakdown, speak to one of our experienced family law solicitors on 02 4731 5688.

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