What is a subpoena?
A subpoena is a legal document issued by a court at the request of a party to court proceedings or on a court’s own accord. A subpoena compels a person to produce documents or give oral evidence at a hearing or trial.
Does a subpoena have a filing fee?
Yes, in the Family Court of Australia and the Federal Circuit Court Australia the fee for filling a subpoena is $55 per subpoena.
How many subpoenas can a party issue in a matter?
A party to Family Law proceedings and Independent Children’s Lawyers must not request the issue of more than five subpoenas in a matter.
Is there any option for a party issue more than five subpoenas?
A party can seek leave (permission) to issue a subpoena if five have already been issued. This request is generally made at court.
Requirements of a subpoena
A subpoena needs to identify the person it is being issued to by name or description of office or job title. It must also identify any document that is to be produced.
A subpoena must request the production of a document which already exists. It cannot obligate a person to create a new document to comply with it.
The party issuing the subpoena must also pay conduct money to the person named in the subpoena to cover the reasonable cost of complying with the subpoena.
Does a subpoena need to be served on a party?
If the subpoena requires a person to give evidence then the subpoena has to be served by hand no less than seven days before the person named in the subpoena is required to attend to give evidence.
If the subpoena only requires a person to provide the court with documents then the subpoena has to be served by ordinary service (for example by post in a closed envelope), no less than ten days before the person named in the subpoena is required to provide the documents.
Does the person named on the subpoena have to comply with a subpoena?
If the subpoena was served as required by the Family Law Rules 2004 and conduct money was provided to cover the reasonable cost of complying with the subpoena then the person named in the subpoena must comply with it.
Can a person object to a subpoena?
Yes, parties to a proceeding can object to a subpoena if:
- The documents requested are irrelevant to the proceedings; or
- The documents are protected by legal privilege; for example, letters of advice from a lawyer).
Do I need a subpoena?
This will depend on the circumstances of your specific case.
Parties to a Family Law matter have a duty to disclose all relevant information (including documents).
If a party has not disclosed the requested relevant information a subpoena can be used to produce the information from another source.
It is appropriate that a reasonable attempt is made to obtain the information without the use of a subpoena; for example, requesting the document by letter, before issuing a subpoena.
If your matter is listed for trial then a subpoena will often be issued for experts to attend; for example a family assessment report writer or medical experts.