What Exactly is a Subpoena?

A subpoena is a written order issued by the Court requiring a person to

• Produce documents or things relevant to the case;
• Give evidence in person at the hearing; or
• Do both of the above.

The authority to issue subpoenas in family-law proceedings flows from the Court’s general procedural power under s 97 of the Family Law Act 1975 (Cth), which allows the Court to make “such orders … as it considers appropriate” for the just determination of each matter. Detailed mechanics are set out in Part 6.5 of the Federal Circuit and Family Court (Family Law) Rules 2021.

When Might you Need one?

• Financial disclosure gaps – where the other party will not voluntarily hand over bank statements, superannuation records or company ledgers;
• Third-party information – for example, medical files, school reports or Department for Child Protection material relevant to parenting allegations;
• Tracing assets – when property is suspected of being hidden in trusts, companies or with relatives;
• Independent witnesses – such as a treating psychologist whose opinion is central to a child-custody dispute.

Key Legal Requirements

1. Relevance and legitimacy: The document or witness sought must be genuinely relevant to an issue in the case. Fishing expeditions are not permitted.
2. Proper form: The subpoena must follow the Court-approved template and be filed with the appropriate filing fee.
3. Service: A sealed copy must be personally served on the addressee (and on every other active party) within the timeframe set out in r 6.37 of the Rules. Where the subpoena targets a non-party, you must also pay “conduct money” – a modest     sum to cover their reasonable expenses for complying.
4. Timing: Documents must reach the Court and the parties before the return-of-subpoena date specified on the face of the subpoena, usually at least 10 days before the final hearing.

Grounds for Objecting

The recipient – or another party – may file a notice of objection seeking to have the subpoena set aside or limited. Common grounds include:

• Irrelevance or oppression – the request is too broad, burdensome or intrusive;
• Privilege – the material is protected by legal professional privilege, public-interest immunity or a statutory restriction (e.g., child-protection documents require the Court’s leave under s 69ZW of the Family Law Act 1975 (Cth));
• Privacy and confidentiality – particularly sensitive medical or counselling  records.

The Court will balance the probative value of the material against any harm caused by revealing it. Orders can be made for inspection only by the parties’ lawyers, or for redaction of sensitive information.

Consequences of Non-Compliance

Ignoring a subpoena is serious. The Court can:

• Issue a warrant for arrest of a witness who fails to attend;
• Order sequestration of property or impose a fine;
• Stay or dismiss proceedings until compliance is achieved;
• Award costs against the defaulting party or witness.

Conversely, if a party misuses subpoenas – for instance, issuing dozens of blanket demands solely to harass the other side – the Court may strike out the subpoenas and order that party to pay indemnity costs.

Practical Tips for Litigants

• Plan early – identify any unavoidable gaps in evidence as soon as proceedings commence. Last-minute subpoenas risk being refused or causing an adjournment.
• Draft narrowly – specify exact date ranges, account numbers and document types. A focused subpoena is cheaper, more persuasive and less likely to be challenged.
• Budget for costs – filing fees and conduct money are payable up front. Photocopying and inspection fees may follow.
• Protect sensitive data – if you expect confidential material to be produced (e.g., health records), ask the Court for limited-access orders to safeguard privacy.
• Comply politely – if you are served, diarise the return date, seek legal advice promptly and gather the documents methodically. Early dialogue can often resolve scope concerns without court time.

Subpoenas and Alternative Dispute Resolution

Inmediation or family-dispute-resolution sessions you cannot compel documents. However, agreeing to exchange key financial records voluntarily often accelerates negotiation and reduces the need for subpoenas later. Experienced family-law solicitors will guide you on what disclosure is standard and what may need compelled production.

Why Legal Advice Matters

While the forms look deceptively simple, the strategic and procedural pitfalls of subpoenas are not. A poorly worded request can be struck out; an over-zealous fishing expedition can, and often does, lead to an adverse costs order. Skilled lawyers ensure:

• every subpoena is necessary, proportionate and admissible;
• objections are raised swiftly to protect your privacy;
• privileged material is not inadvertently waived; and
• compliance costs are kept  to a minimum.