Subpoena’s come in all shapes and sizes.  A subpoena can be given to a person (including a business or other entity):

  • to attend Court to give evidence, i.e. be a witness and be cross examined;
  • to attend Court to given evidence and produce documents; or
  • to produce documents.

The most common form of subpoena in Family Law matters is the subpoena to produce documents.  These are regularly given to financial institutions such as banks to obtain information like bank statements, loan applications or letters.

Issuing a Subpoena

A subpoena is not like other Court documents that you file and serve.  If a party wants a subpoena they need to make a request of the Court.  It is the Court that issues the subpoena after a party requests one by filing a draft of the subpoena.

Subpoena’s cost money. It is not just the costs that you pay your solicitor to prepare and file the subpoena, the following expenses must also be paid:

  • The filing fee that is collected by the Court when you file the subpoena (unless you qualify for a reduction or exemption from this fee);
  • The costs of personally serving the subpoena (you should not expect that a person, business or department to who a subpoena is issued will accept service by, for example, facsimile.
  • Whether the subpoena requires a person to produce documents and/or attend Court, the person who has requested the subpoena to be issued needs to provide money to the person being subpoenaed called “conduct money”.  This is an amount of money to cover the reasonable expenses of complying with the subpoena.
  • Often additional expenses need to be paid, for example, if a subpoena is issued to the bank the bank may charge their standard fee for a duplicate statement.  If there are multiple statements the fee that the bank may charge could be significant.

The costs of having the Court issue a subpoena and having that subpoena complied with can amount to thousands of dollars, depending on what you are requesting in your subpoena.

Further, there are many reasons why a subpoena may not be complied with.  When a subpoena is issued by the Court the back part of the subpoena gives the person to who the subpoena is issued the opportunity to object to the subpoena.

Objecting to a Subpoena

You cannot just object to the subpoena if you do not want to comply with it.

The broad reasons that you can rely on to avoid complying with a subpoena are:

  • Privilege, for example usually your solicitors file is privileged.  This is not always the case but mostly communication between a client and their solicitor (particularly relating to the proceedings in which the subpoena is issued) is privileged.
  • An abuse of process.  This means that you cannot simply issue a subpoena in the hope of finding information. This is commonly referred to as going on a fishing expedition.
  • There is a fault with the subpoena.
  • The request is oppressive, or excessively onerous to comply with. An example of this is if you asked for “all letters, diary notes, recordings and other information between “A” and “B” for the period 1980 to date”.  It would take an awfully long time to get this information, particularly because documents do not need to be retained for that length of time but also in 1980 there was not really the ability to digitally store information as there is now.

If you have grounds to set aside a subpoena then you have to file the objection to the subpoena as soon as possible after you have received it.

Once filed the Objection to the Subpoena will be allocated a hearing date.  The objection must be served on the other parties to the proceedings to which the subpoena relates.

At the hearing of the objection the Court will have to consider whether the subpoena should be dismissed or complied with.

Inspecting Material produced by Subpoena

In the Federal Circuit Court of Australia this is simply done by the person requesting the subpoena to be issued (the Applicant for the subpoena) sending a request to the Court for permission to inspect the documents.  Once that request is granted then the parties to the proceedings (or their solicitors) can look at the documents.

In the Family Court of Australia usually the subpoena is listed for a mention and at that mention leave is given to the solicitors for the parties or the parties themselves to inspect (and sometimes copy) the documents.

Important Points about Subpoena in Family Law:

  • A subpoena is not an alternative to disclosure in Family Law matters.  In any Family Law proceedings each party has an obligation to provide full and frank disclosure of all material relevant to the proceedings, whether it is favourable to them or not.
  • A subpoena should really only be issued after all attempts at securing disclosure have been made.  In some cases, usually when the “other side” have repeatedly failed to comply with Orders regarding disclosure, the Court will make that “other party” pay all of the costs of issuing a subpoena, including conduct money.
  • In the Federal Circuit Court of Australia there is a limit of 5 subpoena that can be issued without the permission of the Court.  In some matters, particularly when there may be multiple bank accounts with multiple financial institutions, this is a very small number of attempts to gather information that may be needed.
  • Failure to comply with a subpoena can have serious consequences, therefore if you have an issue with a subpoena that is served on you, legal advice should be sought about whether you have grounds to object to it or not.