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Objecting to a Subpoena in a Family Law Dispute

A subpoena is usually given to a person, business or other entity to:

  • attend Court to give evidence, that is, to be a witness and be cross-examined;

  • attend Court to given evidence and produce documents; or

  • produce document or thing.

No doubt, the primary reason is that a party or related entity refuses, or is unable, to give evidence of their own free will (for example, obtaining pharmaceutical benefits scheme (PBS) records to determine the extent of legal substance misuse). Of course, it naturally follows that you strap them with a subpoena. Hold your horses though! There’s more to it.


If the subpoena requires a party to give evidence, the details of the court attendance will be set out on the document. Similarly, if it requires the production of documents, the schedule to the subpoena will list the documents for production.

Prior to and during the service of a subpoena, the issuing party has a number of strict requirements to follow. For example, it needs to be in the approved form, filed with the appropriate court, and once filed must be served in accordance with the respective rules of that court. In some cases, conduct money must also be provided to the person upon whom the subpoena is served.


When you are served with a subpoena, it is very serious.


SOME GOVERNING RULES


Rule 15.36 of the Family Law Rules states that if:

If: (a) a named person does not comply with a subpoena; and (b) the court is satisfied that the named person was served with the subpoena and given conduct money (see rule 15.23); the court may issue a warrant for the named person's arrest and order the person to pay any costs caused by the non-compliance. Note: A person who does not comply with a subpoena may be guilty of contempt (see section 112AP of the Act).

Similarly, rule 15A.16 of the Federal Circuit Court Rules provide:

(1) If a person fails, without lawful excuse, to comply with a subpoena, the Court or a Registrar may issue a warrant for the arrest of the person and order that person to pay any costs of failure to comply. (2) Subrule (1) does not affect any power of the Court to punish a person for failure to comply with a subpoena.

With all this in mind, there are some instances when a subpoena does not meet the requirements and you can object to it. Rule 15.24 of the Family Law Rules, for example, provides that:

(1) A named person does not have to comply with the subpoena if: (a) the person was not served in accordance with these Rules; or (b) conduct money was not tendered to the person: (i) at the time of service; or (ii) at a reasonable time before the day on which attendance or production in accordance with the subpoena is required. (2) If a named person is not to be called to give evidence or produce a document to the court in compliance with the subpoena, the issuing party may excuse the named person from complying with the subpoena.

Putting aside administrative rules, such as time limits conduct money, service and so on, there are other factors that can constitute and abuse of process and form the basis of an objection. Let us now explore these a little more.


Relevance


A subpoena may be set aside if the requested documents listed in the schedule are not relevant to the issues in the case.


Basically, any party issuing a subpoena must:[1]

“demonstrate [that] the documents have an apparent relevance to the issue or issues before the Court and in respect of which the subpoena was filed”

In that context, J Menzies has previously set out it is not enough for a party seeking to uphold a subpoena to show that the documents might lead to “a train of enquiry” which might assist his or her case.[2] Unfortunately, in family law, this often the game by angry parents wanting to discover something in furtherance of their case. It’s not always the case though, and sometimes it’s a spouse trying to hide the true extent of their finance resources.


Despite the angry parent rampage thought, a party intending to rely upon a subpoena must establish that it is “on the cards” and that the the documents would bear upon and have relevance to the issues in the substantive proceeding. The person issuing such a subpoena and seeking production of the documents therefore bears the onus of proof in establishing its apparent relevance.[3] And should they be unable to argue such, then it can be properly said that the subpoena should be set aside for having “…no conceivable relation to the proceedings”.[4]


Moore J in Sharpe and Dalton at 78 and 147 cited the comments of Cantor J in R v Barton & Ors 019810 2 NSWLR 414 at 419 and said:

“in relation to the subpoenaing of documents… the Court will consider possible issues. This does not include the type of documents and how they may bear upon an issue in the litigation and the Court will act realistically and not require the production of documents which only would have a bearing upon an issue on an unreal, fanciful or speculative basis”.

In the ex-tempore reasons for Judgement in the matter of Waterman and Waterman [2017] FamCA 394, the Honourable Justice Foster stated that:

“the test in relation to a subpoena is well settled, and it required the applicant to demonstrate that there is an apparent relevance in relation to the documents sought to be produced”.

This idea of relevance therefore forms question as to whether the propounding party can satisfy this court that they have a legitimate forensic interest in accessing the documents requested by the subpoenas, or that it is “on the cards” that the documents will materially assist and have relevance to the case.[5]


Often, however, in family law dispute involving children, there is argument of s 60CC (the child’s best interest factors) is a paramount consideration, even over and above this idea of abuse of process in the form of offending the rule of relevant. In the writer’s experience though, this does not always fly well.


Alternative to disclosure


Within the family law forum, each party is required to provide full and frank financial disclosure.

A subpoena, however, is different from disclosure and is not to be treated as a substitute to the process of disclosure.


Disclosure requires a party to reach an informed judgement as to the relevance of documents; whether they relate to the matters in dispute between the parties to the litigation. A subpoena cannot therefore be used as a substitute to obtain disclosure if a party has not been given the reasonable opportunity to first disclose.


Fishing


Fishing, which can be likened to ‘cross-checking’ or casting a net wide to capture everything and anything, occurs when a party issues the subpoena not to obtain evidence to support a case but to determine whether a case actually exists at all. As stated by Cronin J in the matter of Martin & Martin and Anor (No 2):

‘Fishing can be argued where the pursuit of information is random, unguided and the pursuer has no case but seeks to build one’[6]

There is a significant material distinction between seeking production of documents which, if they even exist, can be readily identified and produced in circumstances where documents may be admissible in evidence, and seeking the production of unspecified documents in the hope that, when produced, they may reveal something capable of being admissible in evidence. The former course is permissible, the latter offends both the general law and the Family Law Act 1975.[7]


Gray J said at 428:

“it is not enough for the party issuing the subpoena to raise a speculative possibility that the documents sought would assist the resolution of the dispute. The party supporting the subpoena must demonstrate that the documents sought by the subpoena are of real relevance to the issues in the case, It must be more than an outside chance that something useful might turn up in the documents.”[8]

A Subpoena that is purely “random, unguided and the pursuer has no cause but seeks to build one”[9] therefore will fail.


Oppression


A subpoena that is oppressive will generally fall on its sword.


It should be noted, however, that this does not prevent a subpoena being issued that requires many documents if they are relevant to the substantive proceeding. Rather, a subpoena would be classed as oppressive if it imposed upon the named person the arduous task of producing a large volume of documents, many of which have no relevance to the substantive proceeding.


Case Study


In the recent case of Kelton & Brady and Anor,[10] the husband issued a subpoena to an accountant of a discretionary trust, requiring him to produce several documents relating to the trust.


The accountant, upon reviewing the schedule of documents for production, filed a Notice of Objection based on “relevance” and “fishing”. Notably, however, no objection was made to the production of the Trust Deed establishing the Trust and any Deed of amendment of the Trust as sought in the subpoena, but objection was taken to producing the financial accounts including the balance sheets, profit and loss statements, and any associated notes for the Trust.


The primary judge upheld the accountant’s objection and set aside the irrelevant parts of the schedule to the subpoena. The basis to set the subpoena aside by the primary judge


was because the husband swore that he had no knowledge of the wife not having received a distribution from the trust and no knowledge of a beneficiary loan account… the husband therefore needed to point to some evidence to support the assertion the wife received a distribution or had a loan account. The absence of which mean that it could be properly described as a “fishing expedition”.


The husband sought leave to appeal against the primary judge’s decision, however, the Full Court of the Family Court of Australia decided that the primary judge’s reasons were adequate. The legal costs involved were obviously significant and you can guess what happened next…


CONCLUSION


If you are issuing a subpoena or defending one, you need to be very cautious about abiding by the rules of the relevant court.


Subpoenas are complex creatures and they do come in many shapes and sizes. That’s why you should trust us to help you.


Disclaimer: This publication is not intended to be comprehensive nor does it constitute legal advice. We are unable to ensure the information is current and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication.


REFERENCES


[1] A & the A Group (2006) FLC 93-271 at 80,596.


[2] Mulley v Manifold (1959) 103 CLR 341 at 345 as referred to in T & D [2006] FAMCA 1560 at [6].


[3] Hall & Hall and Ord [2016] FamCA 143.


[4] Strickland v State of NSW.


[5] Hatton v Attorney general of the Commonwealth of Austrlaia & Ors (2000) FLC 93-038 at 87.603.


[6] [2014] FamCA 232.


[7] Bauman and Ors & Rushbrooke and Anor [2016] FamCA 905).


[8] Andrew Garret Wine Resorts v National Australia ank Litd (No. 6) (2005) 92 SASR 419.


[9] Martin & Martin and Anor (No 2) [2014] FamCA 232; Kelton & Brady and Anor (2017) FLC 93-799.


[10] (2017) FLC 93-799.


© Scott A. Green, Associate Solicitor

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