Objecting to a Subpoena
A subpoena is a summons to attend court to give evidence, be cross-examined or produce documents. Subpoenas are usually used in family law proceedings to compel a person to produce documents, or to compel someone to give evidence when they are otherwise unable or unwilling to appear. Generally speaking, an individual is obliged to comply with a subpoena. However, someone who receives a subpoena has the right to object on certain grounds. This article looks at the process and grounds to object to a subpoena.
Subpoena
A subpoena is a legal document that a court issues at the request of one of the parties in a proceeding. Before asking for a subpoena, the person should make a fair effort to obtain the evidence directly. The Federal Circuit and Family Court (General Federal Law) Rules 2021 govern the use of subpoenas and the basis for objection to subpoenas in the Federal Circuit and Family Court of Australia. There are three types of subpoenas: a subpoena for production of a document, to give evidence, or for both production and to give evidence. Where production of documents is sufficient, the party requesting the subpoena should not ask for both production and testimony.
Objecting to a subpoena
The subpoenaed person or another party to the proceedings can raise an objection to the subpoena within set time limits. The objecting person files a notice of objection before the date specified on the subpoena and serves the document on all parties and the Independent Children’s Lawyer. This document must detail the grounds for the objection to the granting of the subpoena.
Grounds for objection
Sometimes subpoenas are not legally valid for a technical reason, such as the court not having jurisdiction over the issue. A person can also object to a subpoena if the material is not in their possession, or they believe that it is not relevant to the matter at hand. The court will set aside a subpoena if it is immaterial to the issues in dispute in the proceedings.
Parties to a family law matter are not permitted to use subpoenas indiscriminately as ‘fishing expeditions’ to secure evidence for their case. The relevance of the document must be established in the subpoena itself. In Alister & The Queen [1984] the precedent was set that a subpoena would only be granted if the request:
- identified a ‘legitimate forensic purpose’ for seeking access to documents, and
- the document was likely to materially assist the applicant’s case.
However, there is now substantial case law (including Sharp & Dalton [1990] and Hatton & Attorney-General [2000]), that suggests that an inability to prove the second element does not mean that the Court will set the subpoena aside or refuse access to the documents. As the Family Court described in Hatton, it is generally sufficient to have prima facie evidence of a legitimate forensic purpose for the documents. In recent cases, such as Waterman and Waterman [2017], the Courts have used the two elements as a guide, rather than a test, to help determine whether there is sufficient relevance to grant a subpoena.
Scope of subpoena
Subpoenas must have reasonable specificity about the scope of the documents that are sought. It is important to consider the time and cost that will be incurred in locating and producing the documents.
If the subpoenaed party considers the subpoena too broad, they can contact the issuing party’s solicitors to negotiate the scope of the request. If the parties cannot come to an agreement, it may be necessary to apply to the court for a variation that narrows the scope or for the subpoena to be set aside.
Privileged communications
Sometimes a party in a family law proceeding will seek privileged communications, such as counselling records. In fact, all communications with therapists, GPs, paediatricians, counsellors and psychologists can be subpoenaed and disclosed. The court’s focus in family law proceedings is to discover the truth and determine the best interests of the child. For instance, if these records reveal evidence of child abuse, then this is clearly relevant to a parenting proceeding.
Still, psychiatrists and psychologists can object to a subpoena on the grounds that this evidence is privileged communications. The Family Law Act 1975 stipulates that counselling records should not be disclosed in family law proceedings unless:
- the counsellor has a reasonable belief that disclosure is necessary under the law
- the person making the communication is over the age of 18 and gives their consent to disclosure, or is under the age of 18 and all those with parental responsibility for the child consent to disclosure, or
- the counsellor has a reasonable belief that the disclosure is necessary on the basis of a specified purpose, such as protecting a child from harm or to prevent an imminent threat to a person.
There is also a provision for medical professionals to claim public interest immunity and object to the subpoena on the basis that the disclosure would be against the public interest. In addition, the court can exclude evidence if the probative value is outweighed by the risk that it is misleading or confusing, unfairly prejudicial to a party, or would be a waste of time.
Go To Court Lawyers can provide advice on applying for a subpoena in a family law proceeding, and also how to successfully object to a subpoena. Please get in touch without our helpful staff on 1300 636 846.