Dealing with subpoenas from the Family Courts is becoming a
common occurrence for many professionals. Applications for
financial, banking, insurance, superannuation or medical records
are common place in the interests of full mutual disclosure by both
parties in a relationship breakdown. Most professionals will simply
hand over the requested material without any scrutiny of what is
contained and in most cases this does not cause issues, however
there is material which may be protected and should be objected to,
and professionals should closely scrutinise what they are
producing. Failure of a professional to object to a subpoena for
their client's information could expose the professional to a
claim of negligence from their client. It is important, therefore,
that professionals have an understanding of how subpoenas work, how
they must be complied with and how to object to them.
A subpoena is an order issued by the Court to compel a person or
business to either produce records, or attend court as a witness,
or both. The Court issues a subpoena at the request of one of the
parties to the proceedings and the document will be served on the
entity the party is seeking information from.
You must comply with a subpoena, unless it was not served on you
correctly under the Family Court Rules. The Rules require that the
subpoena is served on you by hand, at least 7 days before the court
date, and also pay your reasonable expenses (known as "conduct
money") for complying with the subpoena. If you have any
concerns about the service of the subpoena you should contact a
lawyer to discuss the matter. There are very serious consequences
if you do not comply with the subpoena, including the Court issuing
a warrant for your arrest or ordering you to pay any costs caused
by your non-compliance. The court may also find you guilty of
contempt of court.
If you are a professional who has received a subpoena for your
client's information, the first step is to advise your client
and seek their instructions about anything they are concerned being
disclosed to the other parties. In addition to this it would be
wise to seek the assistance of a lawyer to see if any of the
material would fall into a category which could be objected to.
If the subpoena is to give evidence, check the date, time and
location that you are required to attend. The party serving the
subpoena must also provide you with reasonable conduct money to
cover any travel expenses, accommodation, meals etc. If they have
not you can contact the party issuing the subpoena and request the
If the subpoena is for the production of documents you can
either provide the originals or copies of the documents. Read the
subpoena carefully, it will tell you when and where to produce the
documents. An important point to note is that that the documents
get sent to the court, not the other party. Again the party issuing
the subpoena should provide you with reasonable conduct money to
produce the documents.
If you have concerns about the nature of the material that the
other party has requested, because it doesn't seem relevant, is
privileged or somehow else sensitive, then you need to get
independent legal advice as soon as possible. There are a number of
legal grounds that you can object to the subpoena, but you have to
let all parties know with adequate time. Arguing against a subpoena
involves complex areas of law, so it is wise to have a lawyer
handle this side of things for you.
Normally the court will hold the material produced pending any
objections being heard about it being produced to other parties.
Once these issues are determined the court will either make
material available for viewing, copying, or both, or else strike
the subpoena out and have the material returned to you.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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