23 February 2018

You’ve been served!

A guide for professionals on what to do if you’ve been served with a family law subpoena

We often receive calls from accountants, financial advisors, counsellors, business owners and other professionals asking us what they should do after being served with a subpoena to produce documents to the court or to appear as a witness in court.

We have put together a guide to help our clients and referrers be better prepared the next time that they are served with a subpoena.

What is a subpoena?

A subpoena is issued by a court at the request of a party to Family Court proceedings.  A subpoena requires a person to either produce documents to the court or attend court to give evidence.  Sometimes, a subpoena will require a person to do both.  The schedule to the subpoena will describe the documents that must be produced.

A subpoena must be complied with unless:

  1. it is served incorrectly;
  2. you are not provided with ‘conduct money’;
  3. the person who applied for the subpoena has written to you and advised that you no longer need to comply with the subpoena; or
  4. you complete an objection to the subpoena.

If you do not comply with a subpoena

The consequences of not complying with a subpoena or objecting to a subpoena is that you may be found in contempt of court and you may be ordered to pay costs of your non‑compliance, or a warrant may be issued for your arrest.

The court takes non‑compliance seriously which is why you should obtain legal advice from a family lawyer if you intend not to comply with a subpoena or do not understand what you are required to do to comply with the document.

Service of the subpoena

The subpoena must be served on you at least 10 days prior to the time and date stated in the subpoena for the production of the documents.  If you are served with a subpoena less than 10 days prior to the time and date for production, the party serving you may request that you consent to a reduction in the time for compliance.  You should not agree to reduce the time for compliance unless you are certain that you will be able to produce the documents to the court on or before the date stated in the subpoena.

Conduct money

The party who has requested the subpoena must provide you with at least $25.00 to meet your costs of complying with the subpoena.  If you have not been provided with conduct monies, then you do not need to comply with the subpoena.

If the money that has been provided to you is insufficient to meet your costs of complying with the subpoena, then you must still comply with the subpoena and produce the requested documents or attend court to give evidence.  However, you can write to the issuing party directly giving them notice that you will incur substantial loss or expense in complying with the subpoena and estimating that loss or expense.  If the party does not supply you with sufficient conduct money to cover your loss or expense you may apply to the court (prior to the court date) for an order that the party pay to you an amount in addition to the conduct money supplied to cover your loss or expense.  You will then need to attend court at the next court date for the hearing of your application.

Objecting to a subpoena

You cannot just object to the subpoena if you do not want to comply with it.

Typical reasons for objecting to a subpoena include:

  1. it is an abuse of process. This means you cannot issue a subpoena in the hope of finding information.  This is commonly referred to in family law as a ‘fishing expedition’;
  2. the documents are privileged, e.g. generally speaking a solicitor’s file is privileged; or
  3. the terms of the subpoena are too broad or oppressive.

You must communicate your objection in writing and on the required form.

We strongly recommend that you obtain legal advice prior to objecting to a subpoena.  Our team of family lawyers are able to review the subpoena and determine whether an objection can be made on any of the above grounds.

Producing the documents

To comply with the subpoena you must produce to the court (and not to the issuing party) the documents specified in the subpoena, with a copy of the subpoena.

Documents can be produced by attending at the court registry in person on or before the date and time for production that is stipulated in the subpoena.  Otherwise you may post, or otherwise deliver the documents not less than two days before the date and time stipulated for production in the subpoena.

If you are producing original documents, then you will need to complete the ‘notice’ on the last page of the subpoena.  You can produce copies but you must complete an ‘affidavit for producing document under subpoena’.

Recent changes to law now permit persons served with a subpoena to produce copies of documents in any electronic format, i.e. on a USB.

If you are unable to produce the documents by the date stated by the court, then you should contact the court and explain why you are unable to comply within the required time and request an extension.

What happens to the documents after the matter has been determined?

When producing the documents, you may inform the court that the documents may be destroyed rather than returned to you.  If you do not specify that the documents can be destroyed, then the court will return the documents to you.

The subpoenaed documents can only be used by the parties for the court proceedings and cannot be disclosed to any other persons except their legal representatives without prior authority from the court.

For more information about this issue and all family law matters please contact our family lawyers on 07 4036 9700.

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