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Things to Consider
Items to Collect
Children and Separation
Children - 10 Things to Keep
Your Legal Preparation
Property Settlement - Property Subpoenas
A subpoena is a legal document issued by a court at the request of a party in the matter. A subpoena forces a person or business 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
- A subpoena for production and to give evidence
You can request a subpoena if a person refuses to give evidence or provide documents to a court, or is unable, of their own free will, to do so.
Before you request a subpoena, you should make all attempts to get the required document or evidence. This may include asking the person to provide the document to you or prepare an affidavit in support of your case.
How do you apply for a subpoena?
You need to complete the form titled subpoena that is approved by the relevant Court.
Unless a court orders otherwise, a subpoena must not be served on a person less than 18 years of age.
In some situations, you will need to prepare a letter to support your request for a subpoena. For example, where there are less than seven days before the court hearing date or where the request is made by a self-represented litigant. You Armstrong Family Law solicitor will be able to provide more information about when you need to prepare a letter.
As a general rule, a party to the matter can only request a subpoena.
- After the hearing date has been fixed in a case for interim or procedural orders, an application for divorce, an application for contravention or contempt or an appeal application
- After the hearing notice has been issued in a case for final orders.
A subpoena will not be issued.
- For a self-represented litigant, unless a registrar has given prior approval
- For a party seeking production of a document or item in the custody of another court
- Before the issue of a trial notice, for a party seeking final orders, unless the judge or registrar orders otherwise
- For a party in a case listed for a hearing conducted as a less adversarial trial pursuant to Division 12A of the Family Law Act 1975, unless the judge orders otherwise.
A party can only request three subpoenas for the hearing of.
- An application for interim or procedural orders
- A child support application or appeal
- A maintenance application.
Federal Magistrates Court
Unless a federal magistrate orders otherwise, a party must not request the issue of more than five subpoenas in a case.
Information for the person requesting a subpoena
Step 1 - complete the subpoena
When completing the subpoena, keep in mind that.
- A subpoena must identify the person to whom it is directed by name or by description or office or position (the named person). If you wish to subpoena an organisation, the subpoena should be directed to a person authorised to act on behalf of the organisation.
- A subpoena may be directed to two or more persons if the subpoena is to give evidence only or if the subpoena requires the production of the same documents from each named person.
- A subpoena for production must identify the specific document or thing to be produced. The document or thing should be properly described so the named person knows what to produce.
- A subpoena must always require the production of a document or thing which already exists; that is, it cannot require a person/organisation to create a document to comply with the subpoena.
- A subpoena cannot be written in a way that requires the person/organisation to form a conclusion as to whether a document or thing is relevant. For example, the subpoena should not ask for ‘all documents relating to any account held by the wife/husband in a false name’.
Step 2 - file the subpoena
Once you have completed the subpoena, you need to file it at the Family Law Court registry.
You will need to file the original and at least two copies. The Court keeps the original subpoena. The first copy is sealed (stamped) and must then be served on the person or organisation being subpoenaed. The second copy is for you.
If it is a subpoena for production, you will need enough copies to make sure that there is a copy for service on each other party.
Step 3 - serve the subpoena
As the person who requested the subpoena to be issued, you must arrange for the subpoena to be personally handed to the named person. You should give the named person as much notice as possible of the hearing or trial date.
If the subpoena is not served personally, the named person is not required to comply with the subpoena.
At the time of service of a subpoena, the following must also be served.
- Conduct money
- If a subpoena for production, a copy of the brochure ‘Subpoena – information for named person (served with a subpoena)’
- A written notice if you seek to inspect and copy without the need to attend the court date.
Subpoena for production only
In some cases, all parties may be automatically permitted to inspect and copy any documents produced under a subpoena without the need to attend on the court date. This situation can only occur if.
- The subpoena is issued more than 21 days before the court date
- The named person and all parties are served with the subpoena and a written notice that the person requesting the subpoena intends to rely on this provision, at least 21 days before the court date
- You file an affidavit of such service, at least seven days before the court date
- The named person produces the documents more than seven days before the court date and does not object to any party inspecting or copying the documents
- No party objects to any party inspecting or copying the documents by 10 days prior to the court date.
If a person objects to the inspection or copying of the documents that person and the party issuing the subpoena must attend the court date. At the court hearing the judge or registrar will decide whether both parties will be allowed to inspect or copy the documents.
Federal Magistrates Court
A subpoena requiring production only may be made returnable to court at a time fixed by the Court. A subpoena requiring attendance of a person must be made returnable to court when the case is listed for a hearing.
Conduct Money and Witnesses
You are required to pay conduct money to the named person. If you do not provide this money, the named person is not required to comply with the subpoena. For a subpoena for production, you must give the named person conduct money sufficient to meet the reasonable expenses of complying with the subpoena. For example, the cost of identifying, copying and collating the documents required. This will be at least the minimum amount of $10 or such other sum as agreed or ordered.
For a subpoena to give evidence or a subpoena to give evidence and produce documents, the conduct money covers return travel by public transport from the person’s place of work or residence to court and a reasonable allowance for accommodation and meals during the estimated time of personal attendance at the hearing or trial.
You must also pay witness fees for each person that you subpoena to attend court.
Note – If a person incurs a substantial loss or expense greater than the set conduct money or witness fee, a court may order that the issuing party reimburse these expenses.
Does a person have to comply with a subpoena?
Yes, a person must comply with a subpoena unless the subpoena was not served on the person by hand, or conduct money was not provided.
If a person does not comply with a subpoena, a court may issue a warrant for the person’s arrest, and/or order them to pay any costs caused by the noncompliance.
A court may also find the person guilty of contempt of court.
Can a person object to providing a document?
Yes, a person 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)
- The terms of the subpoena are too broad.
In this case, a party or a person (named or affected by a subpoena) may seek an order that a subpoena be set aside in whole or in part.
How long does a subpoena remain in force?
A subpoena remains in force until the first of the following events occurs.
- The person complies with the subpoena
- The issuing party or a court release the person from the obligation to comply with the subpoena
- The hearing or trial is concluded.
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 a document to any other person without the permission of a court.
Return of exhibits and documents that are produced
The registry manager must return a document produced in compliance with a subpoena to the named person.
- Not less than 42 days after the order finally determining the application or appeal
- 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).
Want to know more or to book an appointment, please contact Armstrong Legal and talk to one of our specialist family law solicitors on 02 9261 4555.