Have you ever wondered how you will be able to obtain financial information relating to
your former partner/spouse in a family law property matter if they are unwilling to provide
such documents?
Perhaps you require certain information for a parenting dispute such as your child’s
medical or education records, and you are unable to access these records.
A subpoena to produce documents may be a helpful pathway to provide such
information.
On the other hand, a subpoena may have been filed in relation to your personal or
medical information and you have concerns, such as your confidentiality being
compromised.
What is a subpoena?
A subpoena is a legal document which is issued by the Federal Circuit and Family Court
of Australia in family law matters compelling a person to provide certain documents or to
give evidence.
Examples of documents which can be subpoenaed include:
To apply for a subpoena, you are required to prepare and file a subpoena form with the
Federal Circuit and Family Court of Australia. It is recommended that you seek legal
advice and assistance to prepare and file a subpoena form as there is no automatic right
to access another person’s financial information or other confidential information – you
may need to seek permission from the Federal Circuit and Family Court of Australia
(‘The Court’).
The Court has the power to issue the subpoena.
Why is revealing a party’s financial circumstances so important?
In Family Law property proceedings, parties have a duty to provide what is referred to as
‘full and frank disclosure’ of their assets and liabilities through a process known as
‘Disclosure’. It is vital to ensure that all parties provide accurate and complete
information regarding their income, assets, debts, expenses and other financial matters.
Examples of documents to be provided can include bank statements, valuations of
assets such as a house or car, tax returns, superannuation statements, payslips and
much more.
The provision of these documents is vital to provide a full picture of the asset pool,
income, debts, and financial dealings.
In some cases, individuals attempt to conceal their assets or underreport their income to
minimise their financial obligations or gain an unfair advantage in negotiations.
Subpoenaing financial records can therefore allow the other party to obtain
comprehensive information about their spouse or partner’s financial situation, reducing
the likelihood of hidden assets or income going unnoticed where parties do not
comprehensively provide documents during the process of Disclosure.
Does a subpoenaed body have to comply with a subpoena?
It is mandatory for the subpoenaed body (such as a bank, school or psychologist) to
comply with the requirements that the subpoena sets out (i.e., produce documents to the
court). There are however exceptions to this rule, such as where the subpoena was not
served as required by the Family Law Rules 2021.
What if I do not agree with the subpoena?
Parties have the right to object to a subpoena if there is confidential or ‘privileged’
information or perhaps the document is unable to be produced; regardless, your
objection may not always be approved by the Federal Circuit and Family Court of
Australia.
There are other reasons to object to a subpoena including:
Relevance: Where documentation to be produced is not relevant to any issue in
proceedings;
Privilege: Legal-professional privilege protects communications which are shared
between a client and their lawyer for the purposes for the client to obtain, or the
lawyers to provide legal advice; and
Ambiguity: Where the terms provided in the subpoena are too broad which
causes difficulty to comply with what documents are required.
The non-agreeable party will be required to file a ‘Notice of Objection’ before the Federal
Circuit and Family Court of Australia hears parties in relation to the objection.
There are, however, time limits to objecting, therefore, it is advisable you seek legal
advice if you are served with a subpoena.
Who can see documents produced as a result of a subpoena?
Where sensitive information is contained within the subpoenaed documents, only
specific persons may be able to physically review the documents. This may include the
parties’ legal representatives only.
In such cases, the parties themselves may be restricted from inspecting the documents.
Parties involved in family law property matters often seek legal representation to
navigate the complexities of financial disclosure and issuing subpoenas. At Hartleys Lawyers,
our solicitors can ensure that subpoenas are properly drafted, served and enforced in
accordance with the law.
A subpoena to obtain financial disclosure or other documents relevant to a parenting
dispute is a critical legal mechanism which promotes fairness, accountability, and
transparency in family law matters, ultimately facilitating the resolution of family law
issues in a way which is just and equitable for all parties involved.
If you or someone you know wants more information or needs help or advice with family
law property matters, please contact our Intake team on (03) 8415 5600 or email us at
reception@hartleyslawyers.com.au.
This article is intended to provide general information only and is limited to the Victorian
jurisdiction only. You should obtain professional advice before you undertake any
course of action.