Subpoena - Family Law

Rule 6.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 lets the court issue a subpoena for production, to give evidence, or for both, at a party's request, and requires it to be in the approved form. Rule 6.27 limits requests: a self-represented party needs the court's permission for any subpoena; permission is needed for a subpoena to give evidence, for production and evidence, for production for a final hearing, or directed to another party; and without permission a party may request up to 5 subpoenas for production for an interim hearing. A subpoena must not seek a document the court has ordered not be produced because it would disclose a protected confidence (r 6.27(2A), s 102BD of the Family Law Act 1975).

When you need it

• You need records held by someone else, such as a bank, employer, school, doctor or police, for an interim or final hearing.
• You need a witness to attend court to give evidence, with or without documents (permission is required).
• For general federal law and migration cases use the separate general federal law subpoena.

1. 1

   Leave and protected confidences (page 1)

   Say whether leave is required, and if so provide a cover letter listing the subpoenas, explaining why permission should be given and confirming no order restricts them. Say whether any order has been made under s 102BD and, if so, whether the schedule excludes the protected material.

2. 2

   Addressee and type of subpoena

   Give the name (or office or position) and address of the person subpoenaed (r 6.26(3)) and mark one box only: produce documents, attend to give evidence and produce, or attend to give evidence.

3. 3

   Parts A and B: parties and independent children's lawyer

   Give the file number, the parties' names and client IDs if known, and any independent children's lawyer.

4. 4

   Part C: details of the order

   Mark the same option as on page 1. The printed text explains that documents go to the court, not to the issuing party, preferably as PDFs at least 2 days before the production date shown on the cover sheet.

5. 5

   Part D: schedule of documents

   Describe the documents or things to be produced adequately (r 6.26(4)), with date ranges and account or reference numbers. Do not ask for production and evidence where production alone would do (r 6.26(5)).

• File at the court location where the matter is being heard. Subpoenas for production only, on initiating applications where final orders are sought, should be eFiled on the Commonwealth Courts Portal; subpoenas to attend should be filed by email, per the court's form page.
• Service: a subpoena to give evidence must be served personally; a production-only subpoena may be served by ordinary service or an agreed method (r 6.30(1)-(2)). Serve a copy on each other party, any interested person and any independent children's lawyer (r 6.30(3)).
• Timing in the form's notes: at least 7 days before attendance (evidence), and 10 days before attendance or production for the other two types. A subpoena must not be served more than 3 months after it is issued (r 2.30).
• Give the person subpoenaed conduct money for return travel to court, at least the minimum in Schedule 2 of the Rules (r 6.31).

• To inspect what is produced, file a Notice of Request to Inspect. Without an objection by the production date, parties may inspect and copy documents other than child welfare, criminal, medical and police records (r 6.37).
• Objections must be given in writing before the production date (r 6.38(1)). A person whose medical records or protected confidences are subpoenaed may inspect them first and object within 7 days after that date (r 6.38(2)-(3)).
• If a person served with conduct money does not comply, the court may issue a warrant for their arrest and order costs (r 6.41).