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Kim Wilson & Co Family Lawyers’ Adam Somerville-Brown, Consultant, and Elyce Lines, Associate, discuss how to object to a subpoena to produce documents in the Family Court of WA.
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Who can object?
The named person in the subpoena, an interested person, or the Independent Children’s Lawyer may seek an order for the subpoena to be set aside in whole or in part, or seek other relief relating to the subpoena – eg. any substantial loss or expense relating to the production of documents.
How do I object?
To object, you should complete, sign and file with the Family Court of Western Australia (“FCWA”) the Part F Notice attached to the subpoena as soon as possible and no later than 10 days before the Return of Subpoena Hearing date. A sealed copy of the Notice must be provided to the named person, the other parties and any Independent Children’s Lawyer.
If you object, you must attend the FCWA at the time, date and location specified in the top right-hand corner of the subpoena, this is the Return of Subpoena Hearing. The Court will then determine the objection.
You should bring to the Return of Subpoena Hearing the documents set out in the schedule to the Subpoena in case it is necessary for the Court to view the documents in order to decide on your objection.
Grounds for objection
Common grounds for objection are set out below. These grounds are summarised only and are not exhaustive. It is important to note that the grounds for objection can, and often do, overlap. The key is to be succinct and clear in expressing your grounds for objection.
Legal professional privilege
Legal professional privilege protects the confidentiality of communications between lawyer and client. The privilege may be availed of by a client to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services. The term dominant purpose means the most prevailing or influential purpose.
The privilege attaches to the client and is theirs to claim, not the lawyers or the financial advisors.
A waiver of the privilege can occur where there is inconsistency between the conduct of the client and the maintenance of the confidentiality.
Oppression or abuse of process
A subpoena may be oppressive or an abuse of process if:
1. It does not identify the specific documents or things to be produced or include an adequate description of the documents or things.
2. It requires a person or organisation to create a document to comply with the subpoena.
3. It seeks the production of a class of documents which is unnecessarily wide.
4. It is written in a way that requires the named person to form a conclusion or make a judgment as to whether a document is relevant.
The issuing party is “fishing”?
A subpoena may be set aside if the Court is satisfied that it is being used for an impermissible purpose such as fishing. Fishing may be described as issuing a subpoena for the purpose of ascertaining whether a case exists, as distinct from the purpose of compelling the production of documents where there is already some evidence that a case exists.
Relevance
A subpoena may be set aside if the documents sought lack ‘apparent relevance’ to the issues in the case. The test has been described as the documents needing to have “a sufficient apparent connection to justify their production or inspection”. The degree of relevance for this purpose is not high. The inspecting party need only show a legitimate forensic purpose in the inspection.
Sensitive or confidential information
You can object to producing documents pursuant to a subpoena if you consider the documents will provide other parties with an advantage that is unrelated to the proceedings (eg. competing business interests between the parties to the proceedings and third parties). This category can also include medical or psychiatric records.
Objection to the production of documents based on the sensitive or confidential nature of the documents is most often overcome by restrictions being placed on the inspection and or copying of the documents produced under the subpoena.
There are also express and implied obligations on parties involved in family court proceedings not to use information and documents they obtain during the proceedings for any other purposes.
Not enough time to comply
Unless determined by the Court otherwise, a named person must be given at least 10 days from the date of service to produce documents in compliance with the subpoena.
If there is insufficient time for you to comply with the subpoena and the issuing party will not respond or agree to an adjournment of the time for compliance, you can seek an extension of time from the Court. You should file an Affidavit setting why you have not complied and attend the Return of Subpoena Hearing.
No conduct money
When serving a subpoena, the issuing party must pay you conduct money of an amount that is:
1. sufficient to meet the reasonable expenses of complying with the subpoena; and
2. at least equal to the minimum amount stated in the Family Law Rules 2004 (Cth) (“FLR”), which is currently $25. This is increased from time to time.
In addition, a named person may apply to be reimbursed if the named person incurs a substantial loss or expense that is greater than the amount of the conduct money payable under the FLR.
The cost of complying with a subpoena for production needs to cover reasonable costs such as identifying, copying and collating the documents required.
If you do not receive any conduct money, you are not required to comply with the subpoena.
Not correctly addressed or served
A subpoena must identify the person to whom it is directed by name or description of office. Often subpoenas for production of documents are directed to the “Proper Officer” of a company or institution. This means the person with authority for complying with subpoenas within that company, institution or organisation must attend to compliance with the subpoena.
The issuing party must serve a sealed copy of the subpoena on the following:
1. The named person in the subpoena.
2. Each other party to the proceedings.
3. Each interested person in relation to the subpoena.
4. The Independent Children’s Lawyer (if appointed).
A subpoena for production of documents requires service by hand, post, fax, or email to your address.
Penalties for Non-Compliance
Failing to comply with a subpoena is a serious offence. You may be found guilty of contempt of court and a warrant may issue for your arrest from the Court if you do not comply. It is also open to the Court to Order you to pay legal costs incurred by way of your non-compliance.
Should I get legal advice?
Yes. If you intend to object or if you do not intend to comply or if you cannot comply, you should always approach a lawyer who specialises in the area of family law for legal advice. There is also extensive information and resources on the FCWA website including access to all the forms and information as to Court process.
Adam Somerville-Brown is an Accredited Family Law Specialist and is known for his efficiency and ability to achieve timely and amicable resolutions. He has been recognised by Doyle’s Guide as one of the Family Law Rising Stars – Western Australia, 2018. Adam has assisted and represented clients across the spectrum of Family Law issues with a special focus on more substantial and complex property settlement cases and parenting disputes. He takes a practical and common-sense approach which helps to resolve matters as efficiently as possible. Adam has extensive experience in negotiations including mediations. He represents clients at all stages of litigation including interim hearings, conferences and trials. Adam is a consultant author for the CCH Database providing legal commentary on Family Law matters in Western Australia. He is a casual lecturer for the College of Law teaching other lawyers in the field of Family Law. Adam has prepared a number of articles and presented seminars to other lawyers on topics in Family Law. Adam is admitted to the Supreme Court of Western Australia and the High Court of Australia. He is a member of the Family Law Practitioners’ Association of WA and a member of the Law Society of WA. Contact Adam at adam.somerville-brown@kimwilson.com.au
Elyce Lines joined the team at Kim Wilson & Co Family Lawyers in October 2016 and was appointed an Associate of the Firm effective 1 January 2018. She works closely with the Directors, Family Lawyers and Law Clerks at Kim Wilson & Co Family Lawyers to achieve cost effective outcomes for her clients. Elyce graduated from Murdoch University with a Bachelor of Laws degree in 2014. She also holds a Graduate Diploma in Legal Practice through the College of Law Australia which was completed in early 2015. Elyce was admitted as a Lawyer to the Supreme Court of Western Australia in June 2015. Since then she has worked as a Lawyer exclusively in the Family Law area, working in the Family Law Department of a small Law Firm in Perth before joining Kim Wilson & Co. Elyce is a member of the Family Law Practitioners Association of Western Australia, and Women Lawyers of Western Australia. Elyce serves on the Law Reform Sub-Committee of the Family Law Practitioners’ Association of WA and is a consultant author for the CCH Database providing legal commentary on Family Law. Contact Elyce at elyce.lines@kimwilson.com.au
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