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.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

2015 AFR Beaton Client Choice Awards:
Best Law Firm (revenue $50m - $200m)
Best Professional Services Firm (revenue $50m - $200m)

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.