A subpoena is a document that is used by lawyers to bring relevant evidence to court. A subpoena can be used to bring a person to court to give evidence or to have documents or other relevant material produced to the court.
The most commonly used subpoenas in the area of family law are subpoenas for production of documents. Once sealed by the court, the subpoena is the equivalent of an order of the court to produce the documents to the court, so it is important to know the rules around the issue of subpoenas and how they may be objected to. The most commonly issued subpoenas are to the following:-
Property Settlement
To a party’s employer, bank
Parenting
To a party’s doctor or allied health practitioner
Proper Purpose
Subpoenas can only be issued for production of documents that are relevant to an issue in the proceedings before the court. The legal term is that the subpoena must have a “legitimate forensic purpose.”
The legitimate forensic purpose test covers:-
- The material must be relevant to the case.
- The person subpoenaed must be reasonably expected to have the materials sought.
- The request must be based on relevant information rather than on mere speculation.
- The subpoenaed documents should materially assist on an identified issue in the proceedings.
- The documents should not be being sought for improper or harassing reasons.
So, if on the evidence there is no real issue about a party’s employment or their remuneration package, it is arguable that there is no legitimate forensic purpose in a subpoena addressed to their employer for production of their contract of employment and/or wage records.
If one party thinks that the other party might be seeing their doctor for a particular health condition, but there is no evidence to support that belief, then it is arguable that there is no legitimate forensic purpose to a subpoena addressed to their doctor for production of clinical notes.
Grounds for Objection
Once sealed by the court, a sealed copy must be served on the individual or company to whom it is addressed. At the time of service of the subpoena, the recipient should also be provided with a cheque for what is called “conduct money.” The conduct money is the amount that it will cost to physically get the subpoenaed material to the court. The cost of retrieving the documents from records, such as photocopying, does not need to be provided at the time of service of the subpoena, but may be later claimed as part of subpoena compliance expenses.
Usual grounds for objection are that the recipient doesn’t have the records described in the subpoena, that no conduct money was tendered, or that there is no legitimate forensic purpose to the subpoena. A sealed subpoena will show the date by which the documents are to be received by the court, known as the “return date”. So, if a subpoena is served only a few days before the return date, another ground for objection is insufficient notice.
A recipient of a subpoena who wishes to object must complete one of the court’s Notice of Objection Forms (www.fcfcoa.gov.au/resources/forms) and send it in to the court. The objection then will be ruled on by the court on the return date.
If the objection is to production or inspection of the subpoenaed material, technically the recipient should still send the subpoenaed material to court at the same time as sending in the Notice of Objection. If the objection is disallowed, then the issuing party will still be able to inspect the material as soon as the court makes its ruling. If the objection is because the subpoena has been served late, then the court will set a new return date and the issuer of the subpoena must notify the recipient of that new date.
When Must a Subpoena be Served
As a subpoena for production of records usually involves the exercise of collating and copying what are at times quite voluminous records, it is usual to allow at least 10 clear days between the date of service and the return date.
Time to Object
Any objection to the subpoena must be filed in sufficient time for it to be on the court record on the return date. If you are served with a subpoena and you wish to object, you should do so without delay, as there is usually a fairly short time-frame between the date when the subpoena is first issued and the return date – usually a matter of only a few weeks.
All Parties Mentioned in a Subpoena Must be Served
Sometimes it is the case that the recipient of a subpoena doesn’t have any personal objection or doesn’t know whether there is an objection or not, but the non-issuing party might have the view that there is no legitimate forensic purpose to the subpoena. For that reason, all parties to the court case as well as the recipient of the subpoena must be served with a copy. If the non-issuing party then believes there is a valid basis for objecting to the subpoena, they can appear on the first return date and argue the objection at that time.
Section 10E Exception
Section 10E of the Family Law Act has the effect that anything said in the company of a family counsellor who is conducting family counselling is not admissible in any court or in any proceedings before any person authorized to hear evidence. The exemption extends to a person to whom a family counsellor refers someone for medical treatment or other professional consultation.
The effect of the exemption means that a subpoena cannot be issued to a family counsellor for production of counselling records, or to a doctor or other professional to whom a family counsellor has referred a person for production of their treatment records or other records of the service provided.
Written by
Stephen Rugendyke
Special Counsel
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