The rules in relation to issuing a subpoena were recently amended by the Family Law Amended (Arbitration & Other Measures) Rules 2016.
In summary, these changes are:
- Rule 13.07A – Use of documents - A person who inspects or copies subpoenaed documents, under the Rules or a Court Order, must use the documents for the purpose of the case only and must not otherwise disclose the contents of the documents, or give copies of the documents, to any other person, without the Court's permission.
- Rule 15.17 (3A) – A party must not request the issue of a subpoena for production and to give evidence if production would be sufficient in the circumstances.
- Rule 15.29 (4) – the definition of 'copy' may include 'any other electronic form' as indicated by the issuing party is acceptable.
Service of subpoenas
Rule 15.22 has been replaced with the following (in summary):
- The issuing party must serve the named party (recipient) by hand with:
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- The subpoena
- The brochure, approved by the Principal Registrar, containing information about subpoenas
- The issuing party must serve by ordinary service, each other parties, each other 'interest person' and ICL (if applicable).
- Unless otherwise directed by the Court the Subpoena must be served:
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- In relation to a Subpoena for production, at least 10 days before the day on which production is required.
- In relation to a Subpoena to give evidence, at least 7 days before the day on which attendance in accordance with the Subpoena is required; and
- In relation to a subpoena for production and to give evidence, at least 10 days before the day on which production is required.
Arguably, the largest change to the issuing of Subpoena in the Family Court is that there is no longer a requirement to attend court in respect to production of subpoenas, provided the criteria set out below is met, so the process will operate in the same manner as the Federal Circuit Court of Australia.
Rule 5.30 has been repealed and a new Rule 15.30 included – Right to Inspect and Copy Documents. If this Rule has been complied with and there is no objection to the production of the documents, then the parties have leave to inspect and photocopy the documents produced (with the exception of child welfare record, criminal records, medical records and police records), provided the following documents are filed with the Court:
- Notice of Request To Inspect is filed with the Court
- An Affidavit of Service setting out service details in accordance with r 15.30(b).
However, if an objection is made pursuant Rule 15.26 the subpoena must be referred to the court for the hearing and determination of the objection which requires attendance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
