What is a Subpoena?
A subpoena is a legal document, significant to family law in compelling a person to provide documents or give evidence in a hearing or trial. When information is needed from a third party, subpoenas are issued by the court and play an instrumental role in revealing information to help a case.
What are the steps involved?
Subpoenas are filed within the Federal Circuit and Family Court of Australia and are issued in three different forms:
- Subpoena for production;
- Subpoena to give evidence; and
- Subpoena for production and to give evidence
The subpoena chosen is dependent on the specific case and can be issued to any person, relevant to the case.
What can be subpoenaed?
Depending on whether it is a matter of property or parenting or both, different types of information are relevant. Documents and information commonly obtained by subpoena in family law include medical records, criminal history, documents, or information pertaining to the child/ren in the matter, information from a bank, etc.
A subpoena is a good option to consider where an individual refuses to provide evidence to a court. All attempts to acquire the documents or evidence must be exhausted before a subpoena is requested by the court.
How do you apply for a subpoena?
The subpoena must be filed at the Federal Circuit and Family Court of Australia registry. Some basic guidelines to follow when considering filing for a subpoena include:
- A subpoena must not be served on a person under 18 years of age (Unless otherwise ordered by the court).
- The official Court Subpoena form must be filled out.
- A party can request up to 5 subpoenas to produce documents.
- A judge or registrar can grant permission for further subpoena to be produced.
After following the guidelines required for filing a subpoena, the subpoena should be served upon the relevant party. If the subpoena requires a person to give evidence, the subpoena must be served by a person by hand at least seven days before they are required to give evidence. If the subpoena is for production, it must be served at least ten days before the date they are required to produce the information.
In order for the individual to be required to abide by the subpoena a payment for conduct must be paid to that individual. If this money is not provided, the individual is not required to comply with the subpoena. The conduct money must be reflective of the reasonable expenses the person is expected to incur in order to meet the requirements of the subpoena.
For witnesses subpoenaed, a payment of $75 must be paid to them for each day the person is required to appear at the trial or hearing. This sum can be increased in cases where the individual subpoenaed has incurred significant loss or expense greater than usual circumstances. The sum intends to cover the person’s absence from their place of work or residence, proportionate to meet the requirements of the subpoena.
Does a person have to comply with a subpoena?
A person must comply with the requirements of the subpoena. Exceptions include where the subpoena was not served in the manner required by the Family Law Rules 2021 and where the relevant payment for conduct was not provided.
In the case where the person does not comply with the requirements of the subpoena, depending on the circumstances, a court can issue a warrant for their arrest and/or order them to pay any costs caused by the non-compliance. And in some cases, the court can also find the person guilty of contempt of court.
Ultimately, the process of issuing subpoenas in family law is instrumental to the family law process by providing evidence or information relevant to the property or parenting matter.
How O’Loan Family Law Can Help You With Your Separation
Our goal at O’Loan Family Law is to resolve your family law matter amicably and by way of an agreement between you and your ex. This avoids unnecessary stress to you and your family, as well as avoidable legal fees.
However, it is crucial you have a clear understanding of what property your ex-partner owns. Therefore, if you feel unsure about whether your ex-partner has made appropriate disclosure, proceeding to court may be the only available avenue. We can assist you with strategies to obtain that information, including making an application through the ATO.
To begin the process with us, we offer an initial 15-minute complimentary call with a solicitor so that you can discuss your options moving forward.
We can advise and guide you to find the right resolution pathway for you and your family. O’Loan Family Law offers specialist family law advice, conveniently located in St Leonards on Sydney’s North Shore. Our value pricing service offerings include collaborative practice, assisted DIY separation and what we like to call, the traditional family law pathway. We’ve got your back.
About the Author
Bron O’Loan is the Founder & Director of O’Loan Family Law and is an expert family lawyer and independent children’s lawyer. Bron has worked in Family Law since 2015 and is an experienced litigator and skilful negotiator in all family law matters. She is also an experienced speaker and best-selling author of The Splits – How to help your kids navigate separation and divorce.