Once proceedings have commenced in either the Federal Circuit Court of Australia or the Family Court of Australia, it may become necessary for either party to issue a subpoena to produce documents (“a subpoena”) which are relevant to the proceedings.
Often Subpoenas are issued by a party when another party has failed to comply with their disclosure obligations by not providing full and frank disclosure to the Court. Subpoenas can be issued to an entity who may have the relevant documents in their possession such as a bank or superannuation fund. In parenting matters, the Independent Children’s Lawyer will often issue subpoenas to the child/ren’s schools and doctor and either of the parties’ doctors especially if health issues have been raised.
In some proceedings, it is necessary to seek leave of the Court before issuing a subpoena especially when there are Court orders in place in relation to same or there is less than seven (7) days prior to a hearing commencing. Once leave is granted, the filing of the subpoena can proceed as normal.
There is a filing fee of $55.00 for a subpoena. Each party is only allowed to issue up to five (5) subpoenas during the course of the proceedings. If further subpoenas are required, leave must be obtained by the Court to issue further subpoenas.
The issuing of subpoenas cannot be treated as a fishing expedition and the documents requested from the relevant entity must be in relation to the hearing of any application seeking interim, procedural, ancillary or other incidental orders. A subpoena for the hearing or trial of an application seeking final orders or in an appeal will not be issued unless a Judge, or Registrar gives permission.
Once filed, the subpoena must be served on the relevant body with conduct money and a copy of the Court’s relevant brochure. Some entities such as banks will charge a set amount for conduct money and it is important to find out what the production of documents to the Court may cost the client prior to the entity commencing work in relation to the production of same.
If the entity the subpoena is issued to or the other side object to the subpoena, there is an opportunity for them to file a Notice of Objection to the Subpoena and the matter is listed before the Court.
On the day that the documents are due to be produced to the Federal Circuit Court of Australia or the Family Court of Australia, it is necessary to attend Court to obtain the orders sought in relation to the accessing and copying the documents. If the documents have not been produced to the Court on that occasion, the matter will be given a short adjournment. Neither the parties nor their solicitors can view or copy the documents produced until the orders have been granted by the Court. If there is an objection to the Subpoena, this must also be dealt with by the Court in the first instance.
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