What is an Objection to a Subpoena in the Family Court?

Objection to a subpoena

By Ezra Sarajinsky

· Read time: 5 minutes

There are instances where a party may wish to object to a subpoena on the grounds that it is overly broad, irrelevant, or seeks privileged information.

Understanding the grounds for objection to a subpoena is important for both parties involved in a family law matter.

What is a Subpoena?

In family law proceedings, subpoenas are often used to compel the production of documents or testimony from third parties.

A subpoena is a court order that compels a person to produce documents or testify in a legal proceeding. In family law cases, subpoenas are often issued to obtain information from third parties, such as medical professionals, financial institutions, or former partners.

The purpose of a subpoena is to gather evidence relevant to the issues in dispute.

Types of Subpoenas in Family Law

There are three primary types of subpoenas commonly used in family law proceedings:

  1. Subpoena for Production: This type of subpoena compels a person to produce documents or other tangible evidence relevant to the family law case. These documents could include financial records, medical records, employment records, or any other materials that may shed light on the issues in dispute.
  2. Subpoena to Give Evidence: This type of subpoena compels a person to testify in court and provide oral evidence relevant to the family law matter. The person subpoenaed may be asked to answer questions about their knowledge of the parties, their relationship to the parties, or any other relevant facts.
  3. Subpoena for Production and to Give Evidence: This type of subpoena combines the elements of both a subpoena for production and a subpoena to give evidence. The person subpoenaed is required to produce documents and also testify in court.

In addition to these three primary types, there are also specialised subpoenas that may be used in specific circumstances. For instance, a subpoena duces tecum is used to compel the production of records held by a third party, such as a government agency or a financial institution.

Do You Have to Comply with a Subpoena?

Yes, you have to comply with a subpoena if you are properly served with one.

A subpoena functions as a Court Order, and there are significant repercussions for non-compliance. Failure to adhere to a subpoena may result in the Court imposing penalties, such as requiring the non-compliant party to cover costs, issuing an arrest warrant, or finding them in contempt of court.

The obligation to comply with a subpoena can be exempted under the following circumstances:

  • If the subpoena was not properly served.
  • If the individual served is under 18 years old.
  • If conduct money was not furnished.

Grounds for Objection to a Subpoena

There are several grounds on which a party may object to a subpoena in family court. These grounds include:

  1. Overbreadth: A subpoena is considered overbroad if it seeks too much information or is not specific enough in its scope. For instance, a subpoena that demands all financial records from the past five years may be deemed overbroad.
  2. Relevance: A subpoena must be relevant to the issues in dispute in the family law case. If the information sought is not directly related to the matter at hand, the subpoena may be objected to on the grounds of relevance.
  3. Privilege: Certain types of communication are considered privileged and cannot be compelled through a subpoena. This includes communications between a lawyer and client, as well as those protected by doctor-patient or therapist-client privilege.
  4. Undue Burden: A subpoena may be objected to if it places an undue burden on the person being subpoenaed. This could include requiring the production of a large amount of documents or travelling a significant distance to testify.
  5. Public Interest: In some cases, the production of information may be against the public interest. For example, a subpoena seeking disclosure of sensitive personal information may be objected to on the grounds of public interest.

Can counselling / psychologist / psychiatrist records be subpoenaed?

A psychiatrist or psychologist may raise objections to a subpoena based on the sensitive nature of the sought-after evidence.

Additionally, objections can be made on grounds of public interest immunity, asserting that the disclosure of the information would be contrary to the public interest.

Under the Family Law Act 1975, the disclosure of counseling records in legal proceedings is restricted unless:

  1. The counsellor reasonably believes that disclosure is necessary to comply with the law.
  2. The person who made the communication is over 18 and consents to disclosure.
  3. The person who made the communication is under 18, and each person with parental responsibility consents to disclosure.
  4. The counsellor reasonably believes that disclosure is necessary for specified purposes, such as protecting a child from harm or preventing or mitigating a serious and imminent threat to a person.

However, this exclusion does not apply if an admission or disclosure indicates that a child under 18 has been abused or is at risk of being abused.

Objection Procedure

If a party wishes to object to a subpoena, they must file a notice of objection with the Federal Circuit and Family Court of Australia. 

The notice of objection must clearly state the grounds for the objection and provide any supporting evidence. 

The court will then review the objection and determine whether to uphold or quash the subpoena.

Conclusion

Subpoenas are treated seriously by the Courts, and should never be ignored. If you wish to object to a subpoena, then it should be made within time and in the matter proscribed by the FCFOA.

If you need assistance with an onjection, or any area of family law litigation contact Movement Legal today.

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