What is a subpoena?
A subpoena is a request issued by the court. It could be a request for information or someone to make a court appearance.
A subpoena can be posted, emailed, hand-delivered or read out to the person being subpoenaed. This process is known as serving a subpoena.
Subpoenas in the Family Court
In Family Law, proceedings can be in either the Federal Circuit Court of Australia or the Family Court of Australia. It may be necessary for a party to produce relevant documents once proceedings start. The other party can view these documents by issuing a subpoena.
In divorce proceedings, subpoenas are issued when one party has failed to provide all of the necessary documents to the court. Subpoenas are often issued to a bank or superannuation fund who might have important information about the financial situation of the other party. In parenting matters, an Independent Children’s Lawyer will often issue subpoenas. This may be to the children’s schools and doctor if health issues have been raised. They might also issue a subpoena to either parent’s doctor.
Seeking Approval from the Family Court for Subpoenas
In some proceedings, you must seek the court’s approval before issuing a subpoena. This is especially true when there are court orders in place or there are less than seven days before a hearing starts. If you gain the court’s approval, the filing of the subpoena can proceed as normal.
A subpoena costs $55.00 to file. Each party can only issue up to five subpoenas during the proceedings. If more subpoenas are required, you must seek the court’s permission.
Sometimes the court can see the issuing of subpoenas as a ‘fishing expedition’. That is, they can see it as one side using it to deliberately stall for time and make things more difficult for the other. Therefore the documents you request must be relevant. In some circumstances the court will not issue a subpoena unless a Judge or Registrar gives permission.
Serving a Subpoena
The subpoena must be served (delivered) once it has been filed with the court. If you are serving the subpoena to a bank or financial institution, a small amount of money must be paid. This is ‘conduct money’ for the production of documents. Some banks will charge a set amount, so it is important to find out what the production of documents may cost where possible. You also need to provide a copy of the court’s brochure on the subpoena requirements.
Objecting to a Subpoena
You can object if you have been served with a subpoena. You have to file a Notice of Objection and the matter is listed before the court. The court has to deal with all objections before your hearing.
Please get in touch for advice about subpoenas or other family law matters.