A recent matter heard in the family court in Cairns demonstrates the wide range of material which can potentially be subpoenaed in the family courts. The case of Henley & Henley (court-appointed pseudonyms) centred on a father’s request to issue a subpoena for school attendance records—and interestingly, not the records of his own child, but those of the child’s half-sibling from the mother’s previous relationship. The father’s original subpoena request had been denied on the basis that there was insufficient “legitimate forensic purpose”, but the father was successful in appealing that decision and the family court then permitted the father to issue the subpoena to the principal of the half-sibling’s high school.
The father had questioned the genuineness of the mother’s explanations for their 8 year old child’s school absences and instead suspected that the mother was actually taking their child out of school to travel to another town to see her boyfriend. The father believed that by viewing the school attendance records of the half-sibling, he could establish whether or not there were “coincidental absences” where both children had been absent on exactly the same days, negating the idea that the youngest had been kept from school for genuine reasons.
The dad argued the child had had significant absences from school while in the mum’s care. The child was absent from school for 28 days in one year, 25 days in another and 28 days in another, all while the child was in the mother’s care. The mother had asserted that the child’s absences “are of no concern to the school staff as ‘all absences have been explained’”. She said only a single school absence was for the purpose of travelling to another town to see her boyfriend.
The subpoena issue came after parenting proceedings involving the 8 year old child. Orders had been made that gave the parents equal shared parental responsibility for that child, who was to live with the mother and spend time with the father. The dad appealed against the orders relating to time he would spend with the child during school terms; instead he sought an equal time regime with the child.
While preparing to be re-heard on this one issue, the father sought leave to issue a subpoena to the high school principal of the half-sibling. The dad argued that if the mother was not genuine about the child’s absences, this should affect the child’s time spent with him, because the more time he spent with his dad, “the less opportunity there will be for the mother to take the child out of school for such purpose”. When a registrar subsequently refused that request, the dad sought a review of the decision.
The Family Law Rules say that a review of a registrar’s determination is an original hearing, so error does not need to be established as in ordinary appeals. The sole issue to be determined in this instance was is if there was “legitimate forensic purpose” to the subpoena request.
According the Family Law Rules, the subpoena should be allowed if the material to be supplied would “throw light on the issues in the main case” or would “materially assist a party in their case”.
In this case, the judge found that the school absence issue could in fact “throw light on the issues in the main case” and could “materially assist the father in the resolution” of the parenting proceedings. The judge said that “certainly I cannot exclude at this point the legitimacy of that forensic purpose”.
What is a subpoena?
Subpoenas are legal documents that are issued by a court on the request of a party to a proceeding, which force someone to produce documents or provide evidence in court. In some cases subpoenas are issued if someone refuses to give evidence or supply requested documents, but they can also be issued if someone is unable of their own free will to do so. A school principal may be bound by privacy or other legal obligations and cannot simply issue school attendance records to anyone who might express a desire to see them. In this case, because the father requesting the subpoena was not related to the half-sibling or legally his parent, it seems unlikely the school principal could have complied with the request to produce the evidence without such a subpoena.
Subpoenas can be requested for the hearing of any application seeking interim, procedural, ancillary or other incidental orders. For hearings or trials or applications seeking final orders or in an appeal, a subpoena won’t be issued without the permission of a judge or registrar. Self-represented litigants too must obtain a registrar’s permission first.
To request a subpoena, people need to fill out a form that is approved through the family court. Self-represented litigants need to prepare a letter in support of their request as well. The subpoena is then filed at a family law registry before being served. For more information on the process, please see here.
As can be seen, what can be subpoenaed in the family court might be broader than what you may have previously thought and may be something for you to consider if you are preparing a case in the family court.
You can read the whole case here.
Do you need help with a parenting matter or perhaps you would like advice on what can be subpoenaed in the family court? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.
