Filing a Subpoena

• A party seeking the issue of a subpoena (the ‘issuing party’) needs to eLodge:

  • the completed subpoena (Form 14) – see below
  • a letter to the Court advising:
  • whether the subpoena is in relation to property and financial issues, parenting issues or other issues
  • whether permission to issue the subpoena has already been given (and if so, the date of the order or direction when permission was given), and if not, the reasons why permission should be given
  • why the subpoena should be issued on short notice (if applicable, see ‘notice to named persons’ below for details)
  • the subpoena filing fee.

  The Court will notify the party (“the issuing party”) by email if the subpoena has been accepted for filing, and copies will be available for download from the eCourts Portal which will be sealed with the Court’s stamp.
  
  The production date, or hearing date, will be shown on the front panel of the subpoena.
  
  The issuing party must keep one sealed copy for themself and serve sealed a copy of the subpoena on the named person (the person to whom the subpoena is directed), and a copy on each other party to the proceedings, including the Independent Children’s Lawyer, if appointed, and any person who may have a sufficient interest in the subpoena (an ‘interested person’, for example a person whose documents or records are sought to be produced pursuant to the subpoena).

Completing the subpoena

It is important that when completing the subpoena you:

1. Complete Part “A”; and either
2. Part “B” if you only require the person to come to Court to give evidence; or
3. Part “C” if you require the person to come to Court to give evidence and produce documents; or
4. Part “D” if you only require the person to produce documents.

Please keep in mind that subpoenas for production often have additional requirements attached to them.

To make sure your Subpoena satisfies the Family Court Rules, you should remember the following:

• A subpoena must identify the person to whom it is directed by name or by description of office or position. If you wish to subpoena an organisation, the subpoena should be directed to a person authorised to act on behalf of the organisation, for example:

The Proper Officer

XYZ Pty Ltd

Some Street

Some Town, WA 0000

• A subpoena may be directed to two or more persons if the subpoena is to give evidence only or if the subpoena requires the production of the same documents from each person named.
• A subpoena for production must identify the specific document or thing to be produced.
• A document or thing requested in a subpoena should be properly described so that the person subpoenaed knows what to produce.
• A subpoena must always require the production to the Court of a document or thing which already exists (that is, it cannot require a person/organisation to create a document to comply with the subpoena).
• A subpoena cannot be written in a way that requires the person/organisation to form a conclusion as to whether a document or book is relevant. For example, the subpoena could not ask for ‘all documents relating to any account held by the wife/husband in a false name’.

Special requirements for a subpoena for production only

All parties and an Independent Children’s Lawyer (if any) may be automatically permitted to inspect and copy documents (other than child welfare, medical, police and criminal records) produced under a subpoena for production, only if the following all occur:

• The named person is properly served with the subpoena, the notification letter from the Court, the required Information brochure and conduct money at least 10 days before the production date;
• all other parties to the proceedings and the Independent Children’s Lawyer (if one has been appointed), and any interested person are served with the subpoena, the notification letter from the Court, and the required Information brochure at least 10 days before the production date; and
• The named person produces the documents on or before the production date and does not object to any party inspecting or copying the documents.

Notice to Named Persons

Named Persons should be given as much notice as possible that they are required to provide evidence and/or produce documents.

A subpoena to attend Court and give evidence must be filed and served at least 7 days before the hearing date.

A subpoena to produce documents and attend Court to give evidence must be filed at least 10 days before the hearing date.

If you are requesting a subpoena that would be served and give less than 7 days’ notice (to give evidence) or 10 days’ notice (to produce documents), you will need to support your request with information to satisfy the Court that permission should still be given, despite the short notice.

You will need to advise the Court that you have contacted the person or organisation to be subpoenaed and they have agreed they will be able to comply with the subpoena notwithstanding the very short notice.

Last updated: 9-May-2022

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