Subpoenas- Part 1

In this VLOG Amy looks at subpoenas in Family Law matters.

What is a subpoena?

Subpoenas are very common, but often people don’t know exactly what they are. In short, Subpoenas are a legal document, which compels a party to provide evidence in a matter. That evidence can be by way of producing documents or it can be given by appearing in court to give evidence orally.

In Family Law matters there is an obligation of full and frank disclosure, so parties to proceedings are required to exchange certain documents under that obligation. If a Subpoena is required, it is generally because a party to proceedings has refused to provide documents, or because it has been issued to a third party that is legally unable to give documents without a subpoena being filed (for example, a party’s bank, the Police, or Family and Community Services).

What is the process of filing a subpoena?

In terms of the process of filing a subpoena, a common misconception is that subpoenas can be filed in any Family Law matter. That is not correct – your matter has to be before the Court, meaning that you cannot file a subpoena unless one of the parties has initiated proceedings (i.e. you cannot file a subpoena if you are negotiating and trying to avoid the court system).

The process for issuing a subpoena is that your solicitor will prepare the subpoena document, which sets out exactly what the subpoenaed party is required to provide by way of evidence. That has to be quite specific, because if it is not, there may be grounds for an objection to the subpoena.

Can a subpoena be objected?

If a subpoena is issued, the other side or the subpoenaed party are afforded the opportunity to issue an objection.  This is only allowed in certain circumstances, such as if the documents are irrelevant or the request is too broad. To object to the subpoena, that objecting party is required to file a Notice of Objection.

If the subpoena is objected to, the parties then have to go to court and satisfy the court as to why that subpoena is relevant.

What happens once a subpoena is filed?

Once the subpoena is filed, the subpoenaed person will be formally served with the Subpoena. That party is then required to comply with the subpoena within 28 days. If the subpoena requires the production of documents, then the documents are sent to the court and stored by the court. The parties to the proceedings then have the opportunity to “inspect” those documents.  The parties may be able to copy the documents depending on their contents, but if they contain sensitive information, such as medical records or documents relating to children, then the inspecting parties may not be allowed to photocopy the documents and can only view the documents while present at court.

If you have any questions or should you need any assistance please do not hesitate to contact us at Southern Waters Legal.

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