Subpoenas in the Family Court (WA)

A subpoena is a form of summons issued by the court at the request of a party to legal proceedings requiring a person to produce certain documents and/or give evidence for the purposes of a trial. In Western Australia, subpoenas in family court matters are governed by the Family Court Act 1997 (WA) and the Family Court Rules 2004 (WA). Understanding the subpoena process is crucial for anyone involved in family law proceedings, whether as a party to the case or a third party who has been served with a subpoena.

Subpoenas are generally required to be personally served on the named person either in their personal capacity or on behalf of an organisation. The document must be served in accordance with proper legal procedures to ensure it is valid and enforceable. There are two main types of subpoenas: subpoenas to produce documents and subpoenas to give evidence (also known as subpoenas ad testificandum).

Types of Subpoenas in Family Court

Subpoena to Produce Documents

A subpoena duces tecum requires the named person to produce specific documents or records relevant to the family court proceedings. These documents might include financial records, medical reports, school records, employment documents, or correspondence that could be material to the case. The subpoena must clearly specify which documents are required and provide sufficient detail for the recipient to identify what needs to be produced.

Subpoena to Give Evidence

A subpoena ad testificandum compels a person to appear before the court to give oral testimony. This type of subpoena is commonly used to secure the attendance of witnesses who may have relevant knowledge about the family law matter, such as childcare providers, teachers, healthcare professionals, or family friends who can provide evidence about parenting arrangements or family dynamics.

Do I have to respond?

You are required to respond to a subpoena, and failure to do so may amount to a criminal offence under the Family Court Act 1997 (WA). A person can respond to a subpoena either by complying with it or by objecting to it. If a person neither complies nor objects to a subpoena, they are in contempt of court and a warrant may be issued for their arrest.

When accepting service of a subpoena, it is prudent to confirm that you have received all documents which the receipt says have been provided to you. The consequences of non-compliance can be severe, including fines and potential imprisonment for contempt of court.

Legal Obligations Under WA Law

Under Western Australian family court procedures, recipients of subpoenas have specific legal obligations that cannot be ignored. The Family Court Rules 2004 (WA) set out the requirements for compliance, and failure to meet these obligations can result in enforcement action by the court. It is important to understand that even if you believe the subpoena is inappropriate or unreasonable, you cannot simply ignore it - you must either comply or formally object through the proper legal channels.

How do I respond?

You will need to check whether you are required to produce documents or give evidence at court. Check the date and time when you are required to comply with the subpoena. If you are unable to process documents by the specified date, it is recommended that you contact the solicitor who has arranged for the subpoena to be issued.

If there will be an additional cost associated with compliance with the subpoena, you should speak to the solicitor who issued the subpoena about whether those costs can be met. Document production can involve significant time and expense, particularly for businesses or organisations with extensive records.

Preparing Documents for Production

When preparing documents in response to a subpoena, ensure they are organised, complete, and accurately reflect what has been requested. Create an index of documents produced and consider whether any documents might be subject to privilege or confidentiality restrictions. If original documents are requested, it may be appropriate to seek court directions about their handling and return.

Conduct money

When subpoenas are issued, conduct money must be paid to the named person to cover the cost of complying with the subpoena. This payment is required under the Family Court Rules 2004 (WA) and must be provided at the time of service. Conduct money for a subpoena to produce documents must cover the costs of identifying, copying and collating the named documents. Conduct money for a subpoena to give evidence must cover the cost of travel to and from court and a reasonable allowance for meals and accommodation during the trial.

If you incur losses or expenses which exceed the amount of conduct money paid, you can apply to the court to be compensated for this. The court has discretion to order additional compensation where the actual costs of compliance significantly exceed the initial conduct money provided.

Calculating Reasonable Expenses

Reasonable expenses may include staff time for locating and copying documents, travel costs, lost wages for time spent complying with the subpoena, and any necessary professional fees. Keep detailed records of all expenses incurred in complying with the subpoena to support any application for additional compensation.

Who can object?

Anyone involved in legal proceedings can object to a subpoena. This includes the person named in the subpoena, an interested person, a party to the proceedings or the Independent Children's lawyer. Any of these persons can request that a subpoena be set aside or seek another form of relief.

The right to object exists to prevent abuse of the subpoena process and to protect individuals and organisations from oppressive or inappropriate requests for documents or evidence. Courts carefully balance the need for relevant evidence against the burden placed on third parties.

How do I object to subpoenas?

If you want to object to a subpoena, you will need to complete the 'Part F Notice' attached to the subpoena and file it with the court as soon as you can. The notice must not be filed later than 10 days before the hearing date. A sealed copy of the completed notice must be served on all other parties in the proceedings.

Some common reasons for having subpoenas set aside are:

• The subpoena constitutes oppression or does not give adequate time to comply;
• The subpoena has not been issued in good faith or for a proper purpose;
• Compliance with the subpoena requires unreasonable effort;
• The subpoena has been issued to obtain documents which are otherwise covered by professional or medical privilege;
• The subpoena requests documents that are commercially sensitive, confidential and personal;
• The subpoena requests documents that are unrelated to the proceedings or are used as a form of discovery.

If you are objecting to a subpoena, you must attend the court hearing and bring any documents detailed in the schedule of the subpoena to allow the court to determine the objection.

Privilege and Confidentiality Issues

Professional privilege, including legal professional privilege and medical privilege, can provide grounds for objecting to a subpoena. Similarly, documents that are commercially sensitive or contain personal information may be subject to protection. The court will weigh