What you should do if you are a professional and are served with a Family Law Subpoena! Law Graduate and member of Attwood Marshall Family Law department, Emily Edmonds, provides some useful advice for accountants and financial planners who receive the dreaded subpoena.
Being a party to a family law matter is rarely enjoyable for anyone. Even when the parties are amicable, and the matter can be settled out of Court, it can be stressful and costly for all involved. On a more positive note, when there is little animosity and an agreement can be reached, it is less common for third parties to become involved. The same cannot be said for litigious matters where professional third parties, such as accountants and financial advisers, find themselves the recipients of subpoenas, directing them to provide copies of documents, information, and undertake tasks on short time-lines which seem unfairly onerous.
What is a family law subpoena?
Family law proceedings are commenced in either the Federal Circuit Court of Australia or Family Court of Australia. During the course of the proceedings, a party may file a subpoena, either directed to the opposing party or directed to a third party. There are three types of subpoenas:
- Subpoena for production of documents;
- Subpoena to give evidence; and
- Subpoena for production of documents and to give evidence.
If the subpoena is one which requires the subpoenaed party to give evidence, the details of the court attendance will be set out on the document. Similarly, if the subpoena is one which requires the production of documents, the schedule to the subpoena will list the documents for production.
Prior to and during the service of a subpoena, the issuing party must fulfil a number of requirements. The subpoena needs to be filed with the appropriate court, and once filed must be served in accordance with the respective rules of that court. Conduct money must also be provided to the person upon whom the subpoena is served.
What to do if you’re served with a subpoena
Being served with a subpoena is a serious matter. Rule 15.36 of the Family Law Rules states that if:
- a named person does not comply with a subpoena; and
- the court is satisfied that the named person was served with the subpoena and given conduct money;
you may be faced with a contravention application, the court may issue a warrant for the named person’s arrest and order the person to pay any costs caused by the non-compliance.
That being said, there are some instances where a subpoena does not have to be complied with and Rule 15.24 of the Family Law Rules provides that:
- A named person does not have to comply with the subpoena if:
a. the person was not served in accordance with these Rules; or
b. conduct money was not tendered to the person:
i. at the time of service; or
ii. at a reasonable time before the day on which attendance or production in accordance with the subpoena is required.
2. If a named person is not to be called to give evidence or produce a document to the court in compliance with the subpoena, the issuing party may excuse the named person from complying with the subpoena.
Apart from these administrative issues, factors which may constitute an abuse of process can also form a basis for an objection to a subpoena. The grounds for an objection include:
(a) Relevance – A subpoena may be set aside if the requested documents listed in the schedule are not relevant to the issues in the case;
(b) Alternative to disclosure – Within the family law forum, each party is required to provide full and frank financial disclosure. A subpoena, however, is different from disclosure and is not to be treated as a substitute to disclosure. Disclosure requires the person doing so to reach a judgment as to the relevance of documents and as to whether they relate to the matters in dispute between the parties to the litigation. A subpoena cannot require the named person to make these decisions.;
(c) Fishing – Fishing, which can be likened to ‘cross-checking’, occurs when a party issues the subpoena not to obtain evidence to support a case but to determine whether a case actually exists. As stated by Cronin J in the matter of Martin & Martin and Anor (No 2)  FamCA 232, ‘Fishing can be argued where the pursuit of information is random, unguided and the pursuer has no case but seeks to build one’.; and
(d) Oppression – A subpoena cannot be oppressive. This does not prevent a subpoena being issued requiring a large number of documents if they are relevant to the case. However, a subpoena would be classed as oppressive if it imposed upon the named person the arduous task of producing a large volume of documents, many of which had no relevance to the matter.
In the recent case of Kelton & Brady and Anor (2017) FLC ¶93-799 , the husband issued a subpoena to an accountant of a discretionary trust, requiring him to produce a number of documents relating to the trust. The accountant, upon reviewing the schedule of documents for production, filed a Notice of Objection on the basis of relevance and “fishing”. No objection was made to the production of the Trust Deed establishing the Trust and any Deed of amendment of the Trust as sought in the subpoena, but objection was taken to producing the financial accounts including the balance sheets, profit and loss statements, and any associated notes for the Trust. The primary judge upheld the accountant’s objection and set aside the relevant part of the schedule to the subpoena. In providing the basis to set the subpoena aside, the primary judge held that the husband swore that he had no knowledge of the wife not having received a distribution from the trust and no knowledge of a beneficiary loan account…the husband would need to point to some evidence to support the assertion the wife received a distribution or has a loan account otherwise the issue of the subpoena could be described as a fishing exercise. The husband sought leave to appeal against the primary judge’s decision, however, the Full Court of the Family Court of Australia decided that the primary judge’s reasons were adequate to explain her conclusions and orders. The legal costs involved were significant.
Accountants and financial advisors need to be very careful that they abide by the Court rules but at the same time, they must also protect their client’s confidentiality, where it is appropriate. Sometimes it can be difficult to determine where these duties intersect and the best way to determine this is to seek independent legal advice. In many cases, if the issues are very complex and there are legal issues concerning disclosure, you should obtain your own legal representation. It is also possible to have your reasonable legal costs and other compliance costs paid for by the person issuing the subpoena in certain circumstances.
When it comes to family law matters and the serving of subpoenas, it can be difficult to distinguish which subpoenas comply with the requirements of the court, and which may be able to be set aside. If you are served with a subpoena and are unsure of your obligations, or have any general queries with regard to subpoenas, please contact our Family Law and Wills and Estates Department Manager, Donna Tolley on direct line 07 5506 8241, email firstname.lastname@example.org or free call 1800 621 071.
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