Collecting evidence is one of the most critical aspects of family law. In some matters, parties struggle to obtain requested documents from the other party. This can be due to the party failing to meaningfully participate in pre-action procedures or outrightly refusing requests. In some instances, parties may be unable to prove an issue without these documents from third parties or organisations. This is where subpoenas become important.
What is a subpoena?
A subpoena is a document issued by the Court at the request of a party to the proceeding, that compels a person (or company) to produce documents (or things) and/or give evidence in a hearing or trial.
No person may access a document or thing produced to the Court under a subpoena unless the Court has granted leave or a Registrar has granted permission to inspect and/or copy the documents. Documents produced may be copied by the parties, with the exception of criminal records, medical records, child welfare records, and police records.
When will a subpoena be issued?
The purpose of a subpoena is to facilitate the proper administration of justice between parties (Lucas Industries Ltd v Hewitt (1978) 18 ALR 15, per Smythers J). Only in circumstances where one party has refused to provide the information sought, and there is no other way to obtain it, should a subpoena be issued. An instance where there may be no other way to obtain the materials is where an organisation is legally unable to provide the documents on request, such as the police.
The information sought in a subpoena must be of relevance to the proceedings in the sense that obtaining it serves a “legitimate forensic purpose” in developing the requesting party’s case (Cargill Australia Ltd v Viterra Malt Pty Ltd (No 19) [2018] VSC 798). A subpoena that lacks apparent relevance or is too broadly worded may be viewed as a “fishing expedition” (Hastings v March [2019] FCCA 2548). The onus is on the party filing the subpoena to establish the relevance and where this is not achieved the subpoena will either not be granted by the Court or it may be challenged by the other side in proceedings.
Other parties to the proceeding, and/or a person who is the subject of a subpoena to produce documents but is not a party, may object to the production of documents sought in a subpoena on certain grounds. The person must follow a special procedure to do so, and we recommend seeking tailored legal advice in such an instance due to the complexity.
Additional special rules apply with subpoenaed medical records which may be inspected first by the person who is the subject of the medical records to determine if they wish to object.
What if a subpoena is ignored?
There may be penalties for non-compliance if a subpoena is filed and the named person to produce materials was properly served but they did not subsequently object or produce the materials. A failure to comply with a valid subpoena is effectively considered a repudiation of a court order and will be treated seriously. The named person who failed to comply may have to pay costs as a result and in some circumstances the Court may issue a warrant for the person’s arrest.
A subpoena will remain in force until it is complied with, the named person or entity is released from their obligation of compliance, or the hearing is concluded.
Nicholes Family Lawyers are highly experienced with subpoenas in family law matters. Objecting to a subpoena is particularly complex. If you have any queries about subpoenas or a family law matter, please contact our office at 03 9670 4122 to arrange an initial consultation.