Family Law Parenting Disputes - How to comply when issued with a subpoena?
Posted: 26th March 2015
Posted in: News
Posted by: Dean Evans, Partner
Childcare centres are often issued with a subpoena to produce documents in family law parenting matters. This article has been authored to provide child care centres with general information regarding their obligations should they be issued with such a subpoena.
Your centre may be issued with a subpoena in family law matters proceedings filed in either the Family Court of Australia or the Federal Circuit Court of Australia. The rules in respect of compliance are similar in both courts.
The most common type of subpoena is one where you are required to produce documents to the court. Less common is a subpoena that requires you to attend court in person and give evidence.
A subpoena issued for the purpose of producing documents, enables a litigant to obtain documents from a child care centre and rely upon these documents in their family law matter.
Such documents may be relevant to issues such as:
- Who is responsible for the care of the children;
- Whether there have been any issues which would support one party’s allegations of family violence or child abuse;
- A party’s conduct in general;
- Who has provided financially for the children; and
- How the children are progressing with their social and educational milestones and whether there current living arrangements are meeting their needs.
Answering a subpoena can be onerous, particularly for a childcare centre. Records may go back as far as 5 years in some cases.
You should be provided with what is known as conduct money.
Conduct money normally ranges between $25 to $50.
If your personal attendance at court is required then the amount would be higher to compensate you for your costs in attending court.
The costs of compliance may be significantly greater than the usual $25 to $50. The court can make an order for payment of any loss or expenses incurred in complying with the subpoena.
Conduct money is not standard and you may have a strong argument to be paid at a greater rate depending upon the time taken to comply with the subpoena. The court may order the party on whose behalf the subpoena was issued to pay all or part of the losses and expenses including your legal costs incurred in responding properly to the subpoena.
Rule 42 of the Federal Circuit Court Rules sets out how you must comply with a subpoena for production.
- Give the documents to the Clerk of the relevant court in a sealed envelope clarly marked “documents produced pursuant to subpoena” at least one clear day before the time stated for production in the subpoena;
- You must attach a copy of the subpoena to the front of the envelope; and
- You must indicate to the court whether you require the documents returned to you or destroyed.
You will be issued with a receipt by the Clerk of the court.
A party issued with a subpoena can object to the production of records. Possible grounds for objection include privilege, relevance, abuse of process, oppressiveness, lack of conduct money, late service or defective wording.
Such objections would not normally apply to the records of a child care centre.
Family lawyers are required by the relevant guidelines issued by the Family Law Section of Australia to encourage parents to engage in family counselling.
Counsellors are available to help parents individually or jointly work through personal issues and care arrangements for children.
There are government funded services but there are also a number of private practitioners on the Gold Coast to whom we refer clients. Should you have need of any recommendations please do not hesitate to contact our firm.
We are also able to recommend as reading for parents going through separation the booklet entitled “Me and my Kids; Parenting from a Distance” which is downloadable by any of your clients at here.