What is a subpoena? (Family Law)

(Family Court of Australia and Federal Circuit Court of Australia)

In these Courts a party to the proceedings (for instance the husband or the wife) can issue a legal document to a third party called a subpoena. This legal document can compel the third party to produce documents, evidence or to testify. The Third Party can be a person or entity (such as a company).  If the Third Party is an organisation it must be addressed to a person authorised to act on behalf of the organisation.

The legal document, the subpoena, must be completed identifying the name of the witness you wish to call, or identify the person/entity and documents or evidence you would like them to produce.  The description must be specific. The subpoena is then filed with the Court, along with the filing fee and a copy is served on the other party to the proceedings and the Third Party. It is important to note that the person issuing the subpoena will be required to pay the reasonable costs of the third party to comply with that subpoena.

If the Third Party is to produce documents or evidence, they will be given a date which they will need to comply with and they are to produce the documents and/or evidence to the Court on or before that date. They are not to produce the documents to the parties.

Once the documents or evidence is produced then the parties and/or their legal representatives can apply to the Court to inspect and copy the documents.  There are limits however what documents can be copied.  For instance medical documents or police documents can usually only be inspected and copies are not permitted.  In extremely sensitive cases the Court may even decide that the documents cannot be inspected until the Judge has had the opportunity to do so themselves to decide if the documents are appropriate for inspection.

There are times that a party to the proceedings or the Third Party may refuse to comply with the subpoena.

If the party to the proceedings objects to the subpoena they can file an objection with the Court setting out their reasons. There will then often need to be an argument about whether the subpoena will be allowed or disallowed. Each party will be able to put their case forward with respect to their position.

If the Third Party refuses to comply without a just cause then they may be found in contempt of the Court, be penalised by an Order of costs or in serious matters a warrant can be issued for their arrest. If the Third Party objects to the subpoena they can raise their objection with the Court but must still comply with the subpoena pending the Court’s decision about their objection.

A subpoena can be a very helpful way to obtain information to support your case which might otherwise be unavailable to you.

A word of caution however – once you have issued a subpoena and the information is produced it becomes open to all parties to utilise the information as evidence in the matter.  The old saying “you should know the answer to your question before you ask it” would be well applied here.