Australia: I have been served a family law subpoena - what should I do?

Have you been served with a subpoena to produce documents in a family law matter? Do you want to issue a subpoena in a family law matter? Are you wondering what you should do?

Alexandra Moles, Partner and Senior Associate Sasha Sarai discuss the critical points you should consider and potentially seek legal advice about when complying with a family law subpoena.

Which Court?

Firstly, you need to ascertain in which Court the subpoena has been filed or you propose to file in, namely the Family Court of Australia (the Family Court), the Federal Circuit Court of Australia (the Federal Circuit Court) or the Family Court of Western Australia. Although each Court deals with family law matters, the Rules governing the process of issuing and complying with a subpoena differ slightly between each Court. Therefore, it is very important to identify the Court in which the subpoena has been or will be filed, so as to comply with the relevant Rules of that Court.

Service

A subpoena filed in the Family Court, must be personally served by you, or on you by hand (generally by a process server). The issuing party must also serve the Court's approved brochure about subpoenas and provide conduct money (discussed below). The brochure about Subpoenas can be found here. In the Federal Circuit Court, a subpoena can be served a number of ways, including: prepaid post, delivery in a sealed envelope addressed to the named person, by facsimile or email. Like in the Family Court, the issuing party should enclose the Federal Circuit Court's approved brochure regarding subpoenas which can be found on their website. Conduct money must also be provided for a Federal Circuit Court subpoena.

Time for service

Regardless of the Court in which the subpoena has been filed, a subpoena to produce documents must be served at least 10 days before the day on which production of the documents is required. A subpoena to give evidence must be served at least 7 days before the court date. The date the documents must be produced or you must attend Court to give evidence, can be ascertained from looking at the subpoena which will clearly state the date the documents must be produced to the Court or that you must attend Court. In the event service is not effected 10 days prior to return date for the production of documents, the issuing party may request you to consent to what is called "an abridgement of time" which means they are asking if you will agree to reduce your compliance time with the subpoena. You should only agree to an abridgement of time if you are able to produce the documents within the reduced time frame. If the subpoena is not served at least 10 days before the production date, you should raise this with the issuing party.

Subpoena return date

The filed subpoena will indicate the date upon which the documents must be delivered to the Court or when you must give evidence. For a subpoena for the production of documents, you should not provide the documents to the issuing party. The documents are to be produced (either by hand or post) to the (correct) Court by the return date. In the event you are unable to produce the documents to the Court by the return date, it is recommended you contact the issuing party and indicate you are unable to produce the documents by the return date and provide a copy of your correspondence to the Court. In the event you are unable to comply with the subpoena you will still have to attend court and outline why you are unable to comply with the subpoena. Please note an extension of time is not guaranteed and you should ensure you comply with the subpoena.

Conduct money

The issuing party must give the person subpoenaed conduct money sufficient to meet the reasonable expenses of complying with the subpoena and the conduct money must be at least $25. In the event the conduct money is insufficient to meet the cost of compliance with the production of documents or the giving of evidence the person subpoenaed should:

  • prior to the return date, provide the issuing party with a notice that "substantial loss or expense would be incurred in properly complying with the subpoena, including an estimate of the loss or expense";
  • prior to the return date, make an application to the court for an order that the issuing party pay you an amount in respect of the loss or expense as outlined in your notice; and
  • attend the Court on the return date or listed date as advised by the court.

Please note the documents MUST be produced to the Court even if there is an issue in relation to the amount of the conduct money. Asking for a further contribution to your costs of compliance does not excuse you from complying on the nominated date.

The form of the documents to be produced

In the Family Court, if the subpoena requests original documents, you can produce a copy of the documents provided the documents are annexed to the sworn affidavit "verifying the attached copies as accurate copies of the original documents mentioned in the subpoena". In the event the subpoena requests copies of documents, the documents can be produced in any of the following forms:

  • photocopy;
  • PDF copy on a CD; or
  • a copy in any other electronic form that the issuing party for the subpoena has indicated is acceptable.

If the subpoena is to give evidence, then you should attend Court at the time required, and make yourself known to the Court officer and confirm you are in attendance in compliance with the subpoena.

Objection to the subpoena

In the event the person subpoenaed objects to part or all of the documents requested to be produced, then they MUST give written notice of the objection and the grounds for the objection (Family Court) or apply to the court in writing for the relevant order (Federal Circuit Court) before the return date. Typical reasons for objecting to a subpoena are that the documents are not relevant or the description of the documents is too broad (fishing expedition). In the event you wish to object to the subpoena, we recommend you obtain legal advice prior to filing you objection.

Failure to comply with the subpoena

In the event you fail to produce the documents in accordance with the subpoena and without lawful excuse, the Court may issue a warrant for the person's arrest, and/or order the person subpoenaed to pay any costs incurred by the noncompliance.

Return of documents

In the event you require the documents produced under subpoena returned to you, the Court will return the documents at least 28 days and no later than 42 days, after the final determination of the application or appeal in which the documents have been subpoenaed.

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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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