Subpoena: Information for named person or other person (served with a subpoena or a copy of a subpoena) (prescribed brochure)

What is a subpoena?

A subpoena is a legal document issued by the Court at the request of a party to a proceeding. A subpoena compels a person to produce documents or give evidence at a hearing or trial.

There are three types of subpoena:

• a subpoena for production
• a subpoena to give evidence, and
• a subpoena for production and to give evidence.

If a person refuses or is unable, of their own free will, to give evidence in the case or to provide documents to the Court, that are relevant to the proceeding, a party to a proceeding can request the Court issue a subpoena. However, the party should make attempts to get the required document or evidence by, for example, asking the person to provide it before requesting the Court to issue a subpoena.

A subpoena for production and to give evidence should not be sought if production of the document/s alone would be sufficient.

Information for the person subpoenaed

When served with a subpoena and you are the named person, you must comply with it unless you were not served correctly under the Court rules or were not provided with proper conduct money to attend court.

If you incur a substantial loss or expense greater than the set conduct money or witness fee, a court may order that the issuing party reimburse you for these expenses.

Any claim for costs in attending court or producing a document under the subpoena must be met by the party issuing the subpoena and not the Court.

If you do not comply with a subpoena, the Court may:

• issue a warrant for your arrest, and
• order you to pay any costs caused by your non-compliance.

The Court may also find you guilty of contempt of court.

Are there any situations where I do not have to comply?

You are not required to comply with a subpoena if:

• the subpoena was not served on you in the manner required by the Family Law Rules 2021, or
• conduct money was not provided.

The person who asked the Court to issue the subpoena may decide they no longer need you to comply with the subpoena, in which case they will advise you in writing.

Conduct money and payment for loss or expense incurred in complying with subpoena

If a subpoena requires you to attend court to give evidence, the person serving the subpoena must give you conduct money sufficient for return travel between your place of residence or employment (as appropriate) and the Court. The amount of conduct money must be at least $25.

If you are not a party in the proceeding and you will incur substantial loss or expense in properly complying with the subpoena, you may apply to the Court (in writing) for an order that the party who has issued the subpoena pay you an amount (in addition to the conduct money) in respect of the loss or expense. If you wish to make such an application, you must, before complying with the subpoena, give notice to the issuing party that substantial loss or expense would be incurred in properly complying with the subpoena, including an estimate of the loss or expense.

Any claim for costs in attending court or producing a document under the subpoena must be met by the party issuing the subpoena and not the Court.

How long does a subpoena remain in force?

A subpoena remains in force until the first of the following events occurs:

• you comply with the subpoena
• the issuing party or the Court release you from the obligation to comply with the subpoena, or
• the hearing or trial is concluded.

Complying with the subpoena

Subpoena to give evidence

If the subpoena requires you to give evidence, you must attend court on the date specified on the subpoena cover sheet.

If you object to the subpoena you may make an application to the Court to have the subpoena set aside in whole or in part.

Subpoena to give evidence and produce documents

If the subpoena requires you to give evidence and produce documents, you must attend court on the date specified on the subpoena cover sheet and produce the documents set out in the schedule to the subpoena.

If you object to the subpoena, you may make an application to the Court to have the subpoena set aside in whole or in part.

Subpoena for production of documents only

If the subpoena requires you to produce documents only, you (or an agent on your behalf) must produce the document/s set out in the schedule to the subpoena (together with a copy of the subpoena) by the date of production specified on the subpoena cover sheet.

Where possible, you should provide documents electronically (via email), entering the following details in the subject field of the email – ‘Subpoenaed material – file number – surname of parties – named person on subpoena’. All family law registries have a discrete generic subpoena email address e.g. [location].subpoena@fcfcoa.gov.au. See the last page of this brochure for contact details.

If you are unable to email the documents, you should complete the notice in this brochure and either:

• attend the registry on or before the date and time for production, as set out on the subpoena cover sheet, or
• post or deliver the document/s not less than two days before the date fixed for production on the subpoena cover sheet.

If you wish to object to producing the document/s subpoenaed see ‘objecting to the production or inspection or copying of subpoenaed documents’.

You can object to the production of documents required by a subpoena for reasons such as:

• the documents requested are irrelevant
• the documents are privileged; for example, documents which came into existence as a result of a lawyer/client relationship, or
• the terms of the subpoena are too broad.

If you do not object to producing the documents, the parties, interested persons, and the independent children’s lawyer may have an automatic right to inspect the documents. If the documents are not child welfare records, criminal records, medical records, or police records, they may also be copied.

Even if you have no objection to the documents being inspected or copied, a party, interested person, or the independent children’s lawyer may object. If there is an objection, you will be advised in writing.

Can I produce copies of documents?

Unless the subpoena specifically requires the production of the original documents or things, you may produce a copy of the document or things, see Rule 6.39, Family Law Rules 2021.

The rules

Return of exhibits and documents that are produced

When producing subpoenaed documents, you may inform the Court that any document produced need not be returned and may be destroyed. If this happens, the Court will destroy or delete the document instead of returning it to you.

Otherwise, the Court must return the documents produced in compliance with the subpoena to you:

• between 28 and 42 days after the order finally determining the application or appeal, or
• earlier, provided that seven days’ written notice has been given to the party who filed the subpoena of the intention to return the document (this is only for documents that have not been tendered into evidence at a court hearing or trial).

Information for persons receiving a copy of the subpoena

The party issuing the subpoena is required to provide a copy of the subpoena to all other parties to the proceeding, the independent children’s lawyer (if appointed), and all persons who may be interested in the subject matter of the subpoena.

If you have received a copy of the subpoena and are not the person subpoenaed, you do not have to do anything unless you want to object to the documents listed in the schedule of the subpoena being inspected or copied by another party or interested person. If you want to object, see ‘Objecting to the production or inspection or copying of subpoenaed document’.

You may have a right to inspect or copy the documents subpoenaed. See ‘Parties right to inspect or copy documents’.

Objecting to the production or inspection or copying of subpoenaed documents

As the named person subpoenaed to produce documents, you may object to producing the documents. As a person receiving a copy of a subpoena to produce documents, you may object to the documents subpoenaed being inspected or copied.

If you wish to object, you must complete a Notice of objection – Subpoena form and file it with the Court before the date for production set out in the subpoena, together with a copy of the subpoena.

If you are a party to the proceedings, you can eFile the completed Notice of objection – Subpoena form via the Commonwealth Courts Portal at www.comcourts.gov.au. For a step-by-step guide see, How do I eFile? at www.fcfcoa.gov.au/howdoi.

If you are not a party to the proceeding, you should submit the completed Notice of Objection – Subpoena to the family law registry, via email, entering the following details in the subject field – ‘Notice of objection – file number – your name’. All family law registries have a discrete generic filing email address e.g. [location].filing@fcfcoa.gov.au. Contact details are on the last page of this brochure.

If you are unable to email, you can file the Notice of Objection – Subpoena with the registry by post or by attending the registry in person. A list of family law registry locations is available on the back page of this brochure and at www.fcfcoa.gov.au.

Once filed, the notice will be processed by the Court as soon as practicable. The Court will complete the details on the notice, including providing a Court date and return it to you. You must then serve a copy of the Notice of objection – Subpoena, together with a copy of the subpoena, to the issuing party, and all other parties in the case. For a step-by-step guide see, How do I serve family law documents? at www.fcfcoa.gov.au/howdoi

You must attend Court on the court date assigned to have your objection heard and determined.

Information for people whose medical records have been subpoenaed

If your medical records have been subpoenaed, you may seek to view your records before making a decision about whether you want to object to them being inspected. In this case, you need to notify the Registry Manager in writing before the date for production set out in the subpoena. If you then wish to object to your records being inspected, you must file your Notice of objection – Subpoena within seven days after the date for production in the subpoena. If you have not given notice to the Registry Manager that you wish to inspect your records, you must file any Notice of Objection – Subpoena before the date for production. See ‘objecting to the production or inspection or copying a subpoenaed documents’.

Parties’ right to inspect or copy documents

If there is no objection to the production of the subpoenaed documents, and no court order has been made to set aside the subpoena, after the date for production set out in the subpoena has passed, the parties to the proceedings can inspect those documents. Documents, other than child welfare records, criminal records, medical records, and police records, may also be copied.

Are there any restrictions in using a subpoenaed document?

A person must only use documents obtained by subpoena for the purposes of the case and must not disclose the contents or give a copy of any documents subpoenaed to any other person (except the lawyer representing them in the case) without the permission of the Court.

Legal advice

If you have any legal questions about subpoenas, you should get legal advice. You can get legal advice from a:

• legal aid office
• community legal centre, or
• private law firm.

Court staff can help you with questions about court forms and the court process, but cannot give you legal advice.

More information

For more information, including access to the Family Law Act, the Family Law Rules and any of the forms or publications listed in this brochure:

• go to www.fcfcoa.gov.au
• live chat on the website
• call 1300 352 000, or
• visit a family law registry near you.