Disclosures and subpoenas
These links jump to headings on this page
When preparing your 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.
When you need legal advice
Get legal advice if:
- you need to know about court procedures
- you are representing yourself.
How to get legal advice
Subpoenas
A subpoena is a written order from the court that tells a person to do one of the following:
- give evidence
- produce documents, records or things
- produce documents and give evidence.
To get a subpoena, you need to apply to the court to issue one.
Read more about how to apply for a subpoena.
The courts charge fees for filing a subpoena. You may not need to pay if you hold certain government concession cards.
For more information, contact the Family Court.
Documents and records
If you’re trying to see documents, you need to say in the subpoena which documents you want.
In your subpoena:
- You can only ask for things that already exist.
- 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’.
- If possible, you should identify a date range for the documents that you seek.
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
- To avoid unnecessary costs, talk to the person and find out what documents they have and what it will cost to produce them (e.g. the costs of photocopying). Make sure your subpoena only includes what is essential to the issues in dispute.
- Make sure the date for delivery of documents is earlier than the date of the court hearing—so you can see the documents and prepare for 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.
Protected Confidences
Under the Family Law Act, a protected confidence refers to private information that has been shared in a confidential setting during a professional relationship. Typically, this involves an individual and a counsellor, psychologist, doctor or other health professional.
This information is usually related to the person's emotional, psychological, or physical well-being. The law aims to protect this information from being shared in family law proceedings without proper justification. This is because people may be less likely to get help or speak openly if they fear what they’ve shared privately could be used against them in court.
The court can decide that certain evidence shouldn’t be introduced in a case if it would reveal; (a) a protected confidence or (b) the contents of a document related to that confidence.
If the court has made direction about protected confidence material, you must not request the issue of a subpoena for production of those 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 must issue your subpoena to a member of the police force. For example, the Commissioner of Police.
The person issuing the subpoena pays for all reasonable costs, including:
- 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.
- sometimes, if the witness is a professional (e.g. doctor, counsellor or teacher) paying their professional costs on an hourly basis.
Once you have issued a subpoena, you must:
- tell the other parties in writing and give them a copy of the subpoena
- once the subpoena is served, file an affidavit of service with the court. This 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 wants to cross examine:
- they must give you written notice that the witness must go to the court
- you must make sure that the witness comes to court.
You must also tell the other party, by letter, about any 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
- you could be found in contempt of court (This is serious and 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.
Disclosure in the Federal Circuit and Family Court of Australia
The Family Law Act states 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, liabilities and any relevant documents you have.
See Chapter 6 of the Federal Circuit and Family Court of Australia Rules to find out what sort of things you have to disclose.
If your case has not settled (come to an 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 it. 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.
There can be consequences if you don’t comply with your obligation to disclose. The court may:
- take non-compliance into account in property settlement
- impose sanctions such as costs orders
- punish a party for contempt of court with a fine or imprisonment
- defer or dismiss all or part of the proceedings.
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:
- serve a formal notice on the party or parties to the proceedings.
- serve a formal notice 7 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 reasonable costs for copying.
Important note: You can only use the document for your case.
Acknowledgement—Prepared using fact sheets that are the copyright of Victoria Legal Aid.
How to get legal advice
We may give legal advice about family law.
Contact us
Other places to get legal advice:
Who else can help?
Disclaimer: This content is for general purposes only and not legal advice. If you have a legal problem, please contact us or speak to a lawyer. View our full disclaimer.
- Last updated
- Last reviewed