Family Law Practice Direction: Electronic subpoena inspection

(FAM-SUBPOENA)

1. Introduction

1.1 This Practice Direction applies to family law proceedings filed in the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) (Court).

1.2 This Practice Direction is to be read together with:

  1. the Family Law Act 1975 (Cth) (Family Law Act); and
  2. the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules).

1.3 This Practice Direction revokes and replaces Special Measures Information Notice – COVID-19 Electronic Subpoena Inspection (SMIN-COVID).

2. Requesting access to material

2.1 When requesting to inspect subpoena material, parties and practitioners must provide the following information in their request:

  1. file number;
  2. date and type of court hearing, conference or expert report;
  3. specific material that access is being requested to, and whether it is ‘inspection only’ material (see below, as defined in rule 6.37(2)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021);
  4. confirmation that a Notice of Request to Inspect has been filed;
  5. whether electronic access to the material is sought;
  6. a copy of photo identification (such as a current driver’s licence or passport) or confirmation that they are a lawyer acting on behalf of a party, and the law firm at which they work.

2.2 Requests should be made by email to:

  1. Adelaide – adelaide.subpoena@fcfcoa.gov.au
  2. Albury – albury.subpoena@fcfcoa.gov.au
  3. Brisbane – brisbane.subpoena@fcfcoa.gov.au
  4. Cairns – cairns.subpoena@fcfcoa.gov.au
  5. Canberra – canberra.subpoena@fcfcoa.gov.au  
  6. Dandenong – dandenong.subpoena@fcfcoa.gov.au  
  7. Darwin – darwin.subpoena@fcfcoa.gov.au  
  8. Dubbo – dubbo.subpoena@fcfcoa.gov.au  
  9. Hobart – hobart.subpoena@fcfcoa.gov.au  
  10. Launceston – launceston.subpoena@fcfcoa.gov.au
  11. Lismore – lismore.subpoena@fcfcoa.gov.au
  12. Melbourne – melbourne.subpoena@fcfcoa.gov.au
  13. Newcastle – newcastle.subpoena@fcfcoa.gov.au
  14. Parramatta – parramatta.subpoena@fcfcoa.gov.au
  15. Rockhampton – rockhampton.subpoena@fcfcoa.gov.au
  16. Sydney – sydney.subpoena@fcfcoa.gov.au
  17. Townsville – townsville.subpoena@fcfcoa.gov.au
  18. Wollongong – wollongong.subpoena@fcfcoa.gov.au

3. 'Photocopy access' material

3.1 If the material is not ‘inspection only’, and ‘photocopy access’ is permitted, where onsite staff have the capacity to provide the documents electronically, it will be provided electronically directly to the party or practitioner requesting the material, usually by email.

3.2 Consideration will be given to the volume of the material relevant to such requests and whether any practical or technical difficulties arise for large volume requests.

3.3 Where documents cannot be provided electronically, an appointment will be made to inspect and copy the material in-person in a court registry.

4. ‘Inspection only’ material

4.1 Inspection only material is:

  1. child welfare records, criminal records, medical records and police records, as defined in the Family Law Rules; and
  2. other material excluded from photocopy access by order of the court.

4.2 If the material sought to be inspected is police records or child welfare records that relate to the investigation of allegations of child abuse in the form of sexual assault of a child or involving a child in a sexual activity, including in cases in the Magellan List, electronic inspection will not be permitted unless there are exceptional circumstances. Instead, arrangements will be made for this material to be inspected in a registry.

4.3 If a party is legally represented, the following procedure will apply:

  1. upon receipt of a request to inspect material, a Registry officer will refer the request to a Judge or Registrar who will confirm release and require that an appropriate undertaking be given by the legal representative to the Court that the material will be destroyed within:

    1. 7 days of the firm ceasing to act in the proceeding;
    2. 28 days after the finalisation of the proceedings at first instance; or
    3. 28 days after the finalisation of an appeal;

    whichever is applicable;

  2. once the undertaking is received, the material will be scanned and emailed to the requesting practitioner with ‘limited security’ settings applied;

  3. the required form of the undertaking is as follows:

    I, [INSERT FULL NAME], Australian Legal Practitioner at [INSERT NAME AND ADDRESS OF FIRM], undertake to the Court that:

    I will not provide, disseminate or otherwise distribute copies of the subpoenaed documents produced by [INSERT SOURCE] (either electronically, in printed format, or otherwise) to my client or any other person, save for my agent or such other person directed by me to complete the inspection on my behalf; and

    Upon inspecting the subpoena documents, I will take all reasonable steps to ensure to the best of my ability and knowledge that they are destroyed and permanently deleted from any storage or file management system (whether held by email, cloud storage or otherwise) within:

    1. 7 days of ceasing to act in the proceedings;
    2. 28 days after the finalisation of the proceedings at first instance; or
    3. 28 days after the finalisation of an appeal;

    whichever is applicable

    In the event I fail to comply (or reasonably suspect that I have failed to comply) with this undertaking (even as a result of circumstances entirely beyond my control), I will immediately notify the Registrar of the Court in writing.

    I acknowledge that this undertaking has the same effect as an order of the Court. I acknowledge that if I breach this undertaking I may be guilty of contempt of court and punished by a fine or imprisonment.

  4. A copy of the undertaking must be given to all other parties to the proceeding.

4.4 Practitioners must refrain from taking photos of, or otherwise disseminating, ‘inspection only’ material.

4.5 If a party is not represented, they must contact the relevant registry to arrange an appointment to inspect the material in-person. Appointments can be made by using the subpoena appointment booking link on the court location page for each registry, available on the Court locations section of the website.

4.6 Inspection only material must not be filed as an Annexure to an affidavit.

5. Electronic tender bundles

5.1 A tender bundle may be provided to the Court by lodging it electronically via the Commonwealth Courts Portal, in accordance with the filing timetable for the relevant hearing. A tender bundle is not a filed document, will be suppressed upon lodgement and therefore will not be visible by any party. Practitioners must serve the tender bundle on each other party in accordance with the orders or directions of the Court.

The Honourable Justice William Alstergren
Chief Justice – Federal Circuit and Family Court of Australia (Division 1)
Chief Judge – Federal Circuit and Family Court of Australia (Division 2)
Issued: 19 December 2024

Related information:
Family Law: Subpoenas
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