Subpoenas play an important role in discovering evidence and information in family law matters, especially when the other party does not comply with requests for information.
There is a lot of work involved in applying, filing, and serving a subpoena. This process can quickly become complex. Generally, subpoenas should only be used as a last resort. We recommend seeking legal advice before applying for a subpoena.
What is a subpoena?
A subpoena compels a person to produce documents or give evidence. It is a legal document issued by the court at the request of a party to proceedings. The court does not issue subpoenas unless a party requests one.
For example, you may request a subpoena when the other party refuses to disclose financial documents such as bank account statements. Once issued, you can serve the subpoena on the bank. The bank must then produce the documents directly to the court.
Before applying for a subpoena, you should take all reasonable steps to obtain the information from the other party.
Types of subpoenas in family law
1. A subpoena for production
This type of subpoena requires a party to produce documents by a specific date and time. These documents may include:
- bank records
- superannuation details
- other material listed in the subpoena
The court sets the deadline for production.
The subpoena must clearly state the documents sought. If it does not, the other party may challenge its validity. You must serve the subpoena by ordinary service at least ten days before the production date.
2. A subpoena to give evidence
This requires a person to attend court and give evidence. The subpoenaed person must attend on the date and time specified unless the court excuses them.
Key requirements include:
- service must be done by hand
- service must occur at least seven days before attendance
3. A subpoena for production and to give evidence
This combines both document production and oral evidence. It should only be used where both are necessary.
If documents alone are sufficient, this type of subpoena is not required.
If you believe you may need a subpoena, we recommend speaking with an experienced family lawyer.
Filing a subpoena
The original subpoena must be filed at the Federal Circuit and Family Court of Australia (FCFCA) registry. You must also file enough copies for each party, including the person or organisation named.
Filing a subpoena is different from other family law documents. You cannot upload it to the online court portal.
Instead, you must email it directly to the relevant Court Registry. We also recommend attaching a supporting letter to the email. If the subpoena is not filed correctly, it may have no legal standing.
What is conduct money?
Conduct money is paid to cover the costs of complying with a subpoena.
These costs may include:
- travel to court
- accommodation and meals during attendance
- locating, copying, and preparing documents
You can include a cheque for conduct money when serving the subpoena to help speed up the process.
What happens once a subpoena is served?
If a subpoena is properly served and conduct money is paid, the named person must comply.
However, they may object if the request is too broad, irrelevant, or privileged. If this occurs, legal advice should be obtained.
Once the material is produced, you may file a Notice of Request to Inspect. Once leave is granted, each party may inspect the documents.
You can issue up to five subpoenas. If you need more, you must seek leave from the court.
Final considerations
Preparing, applying, filing, and serving a subpoena can be complex. A subpoena must be the correct type for your situation. Subpoenas should only be used after all other options to obtain information have been exhausted.
This information is general only. We recommend seeking legal advice before applying for a subpoena to ensure it is prepared and served correctly the first time.
If you or someone you know wants more information or needs help or advice, please contact us on (03) 9422 5439 or email [email protected].