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Disclosures and subpoenas

When preparing you case, you may need to use evidence that someone else has. You can get this evidence by using a subpoena.

You and the other people in your case have a duty of disclosure. During a case, you may need to send information to the other parties in your case. This is known as disclosure or discovery.

You should get legal advice.

Subpoenas

A subpoena is a written order from the court that tells a person to:

  • give evidence
  • produce documents, records or things
  • produce documents and give evidence.

To get a subpoena, you need to apply to the court for one to be issued.

You need to convince the court that the subpoena is needed, and say what kind of subpoena you need.

Attach to the application form a letter that explains why you want the subpoena. If you are representing yourself in the Family Court, you must get permission from a registrar before applying to the court for a subpoena to be issued.

You can get up to 3 subpoenas in the Family Court and up to 5 in the Federal Circuit Court.

The courts charge fees for filing a subpoena. An exemption from payment of this filing fee may apply if you hold certain government concession cards. Contact the Family Court National Enquiry Line for more information.

Documents and records

If you’re trying to see documents, you need to say in the subpoena which documents you want.

You can only ask for things that already exist, and you can’t ask for ‘everything you have about X’ or ‘every relevant thing you have about X’. You must say what is relevant to the issues in dispute. For example, ‘every relevant document about X’s learning disability’.

In most cases you should allow at least 7 days to get the documents. If you want to get documents more quickly, you need to show the court that the other party has agreed to provide them with less notice.

Tips

  1. To avoid unnecessary costs, talk to the person and find out what documents they have and what it will cost to produce them (eg the costs of photocopying). Make sure your subpoena only includes what is essential to the issues in dispute.
  2. Make sure the date for delivery of documents is earlier than the date of the court hearing. This is so you can see the documents and prepare the relevant part of your case.

There may be a small number of documents that do not need to be disclosed due to privilege. See Some important rules about evidence.

Even if privilege applies to a document, you must still list it in the affidavit of documents.

Serving a subpoena

A subpoena must be personally served on an individual. It can’t be served on an organisation. For example, if you wish to subpoena police records, you cannot issue a subpoena on the Queensland Police. In this situation, you must issue your subpoena to a member of the police force. For example, the officer in charge of police records.

The person issuing the subpoena pays for all reasonable costs of:

  • finding, gathering, copying and delivering the documents to court
  • getting the witness to court to give evidence. For example, transport or petrol costs. This is called ‘conduct money’. You must get a money order or bank cheque for the conduct money
  • if the witness is a professional, for example, doctor, counsellor or school teacher, the person issuing the subpoena may have to pay their professional costs on an hourly basis.

Once you have issued a subpoena, you must tell the other party or parties in writing and give them a copy of the subpoena. Once the subpoena is served, an affidavit of service needs to be completed and filed. This is an affidavit which tells the court that the subpoena has been served.

Witnesses

If you have filed affidavits by witnesses who support your case, then the other party may wish to cross examine those witnesses.

If the other party or parties wants to cross examine, they must give you written notice that the witness must go to the court. If you get this kind of notice, it is your responsibility to make sure that person comes to court. It is also your responsibility to tell the other party, by letter, about the witnesses you want to cross examine.

If the witness can’t come to court unless ordered to, then you need to ask the court to issue a subpoena. Expert witnesses or witnesses appearing on behalf of an organisation almost always need a subpoena so they can recover their costs from you for coming to court. It also protects them from allegations of unlawful disclosure of information. Serve the subpoena in plenty of time so the witness can organise to be there.

Duty of disclosure

You and the other people involved in your case must make available all the information relevant to the case. This must be done during the time period that the court requires.
If you don’t do this, you could be ordered to pay financial costs, your case could be delayed and you could be found in contempt of court. Contempt of court is when the court finds you have interfered with or ignored the rules of the court. This is serious and is against the law.

You may also be stopped from using information in your case if you have not disclosed it.

‘Information’ includes (but is not limited to) documents, and information that may support the other party’s case.

The information that you have to disclose is to do with the issues in dispute, so it’s important that you write these out clearly. The type of information you must give depends on what kind of case it is. In financial cases, the list of information you need to disclose is very detailed.

Disclosure in the Family Court

The Family Law Rules say that parties have an ongoing duty to disclose information relevant to the dispute. The process of making documents available for inspection by the parties in your case is called discovery. For example, in property cases you must provide a list of assets, income and liabilities and a list of any relevant documents you have.

See Chapter 13 of the Family Law Rules to find out what sort of things you have to disclose.

If your case has not settled (come to agreement) and you are preparing for trial, check that your disclosure statements are still current and complete. You also need to promise the court that you have disclosed all relevant documents.

Disclosing that a document exists doesn’t always mean that you must supply copies of the document. For example, if you have seen a lawyer about your case and have a letter setting out the lawyer’s advice, you may need to say you have the letter.

However you may be able to claim privilege against providing a copy of the letter. The privilege against producing information is because it is confidential communication between you and your lawyer (see Some important rules about evidence).

Asking to see a document

You can write to another party asking them to produce a disclosed document. The other party must post or make the document available within 21 days.

If someone who is not involved in the case has a document, you must first:

  • serve a formal notice on the party or parties to the proceedings
  • serve a formal notice seven days later, on the person who holds the document.

The person who has the document must let you see it within a further 7 days, unless there is an objection.

A party to proceedings must object (formally disagree) within 7 days of being served with your notice. The person with the document also has 7 days to object. If a party or third party objects to producing a document, you can apply to the court for an order that the document be produced.

If a document is produced, you may take a copy after you pay the reasonable costs of copying.

Important note: You can only use the document for your case.

Disclosure in the Federal Circuit Court

You and the other party can agree between yourselves about exchanging documents.

If you can’t agree with the other parties about documents, you can apply to the court. You need to satisfy the court that this step is necessary. If the court agrees, it is likely that both parties have to provide an affidavit about the documents.

You can only get an order about producing documents if the court says that it is appropriate in the administration of justice.

Acknowledgement - Prepared using fact sheets which are copyright to the Victoria Legal Aid.

Do I need legal advice?

You may need legal advice if you need to know about court procedures or if you are representing yourself.

How to get legal advice

We may give legal advice about family law.

The following organisations may also be able to give you legal advice.

Community legal centres give legal advice on a range of topics. Contact them to find out if they can help.

Queensland Law Society can refer you to a specialist private lawyer for advice or representation.

Who else can help?

These organisations may also be able to help. They don’t give legal advice.

Family Relationship Advice Line gives information about the family law system in Australia.

Family Relationship Centres give information, referrals, dispute resolution and advice on parenting after separation.

Family Court of Australia deals with family law cases. Court forms and information on family court processes are accessible from their website.

Federal Circuit Court of Australia can decide some family law cases. Court forms and information on court processes are accessible from their website.

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