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What is a Subpoena?

by | Dec 12, 2021 | Family Law

A Subpoena is a legal document issued by the Court at the request of a party to a case. A subpoena compels a person to produce specific documents or give evidence at a hearing or trial.

There are three types of subpoena:

  • a Subpoena for production
  • a Subpoena to give evidence, and
  • a Subpoena for production and to give evidence.

A party to a case can request a Subpoena if a person refuses or is unable, of their own free will, to give evidence in the case or to provide documents to the Court that are relevant to the case. However, the party should make attempts to get the required document or evidence by, for example, asking the person to provide it before requesting the Court to issue a Subpoena.

A Subpoena for production and to give evidence should not be sought if production of the document/s and/or thing/s alone would be sufficient.[1]

There are a few scenarios where seeking a Subpoena may be beneficial for progressing your case:

  1. Subpoena to Police – where a party has been involved with Police, Police records could provide clarity on each incident and any prior criminal record, investigations or charges.
  2. Subpoena to Medical Practitioner or Psychologist – where a party has attended upon medical professionals and information regarding their medical history, treatment and diagnosis is relevant to the case.
  3. Subpoena to Banks/Finance Lenders – bank and loan statements may be necessary where a person has failed to provide adequate disclosure of the accounts or certain transactions. Prior to filing a Subpoena it is important to determine the age of the statements requested as Australian banks are only required to maintain records of account statements for a period of seven (7) years.
  4. Subpoena to Schools – in children’s matters a party can request that the children’s school, kinder or day care provide academic/development reports for the child, school reports and a copy of all documents held on file relevant to the child.
  5. Subpoena to Accountant – in circumstances where a party owns a company, trust or significant assets, information from the party’s Accountant may provide clarification on certain financial issues in dispute. Accountants can often provide further details on the information included in a party’s tax return or company/trusts financial statements.

Before determining whether it is appropriate to file a Subpoena it is important to consider whether the cost of obtaining the Subpoena is balanced with the amount of helpful information that the Subpoena will provide. It may also be tactically advantageous not to have the information but to be able to suggest that the other party is hiding something by not providing it themselves.

Also, it is important to note that a party who receives a Subpoena has the opportunity to object to the Subpoena up until the date that the documents are required to be produced to the Court.

If you are in need of advice regarding subpoena and the Court process please contact our experienced best family lawyers in Melbourne on (03) 9614 7111.

[1] Federalcircuit.gov.au