Subpoena in family law proceedings

A subpoena is a document that may be issued by the Court in family law proceedings at the request of a party requiring a person, company or other organisation to produce documents to Court concerning the other party.

However,there must be a legitimate forensic purpose for the subpoena. If there is not such a purpose, an objection may be made and the other party (or the person or body who is subpoenaed) may seek that the subpoena be set aside.

If you require assistance in relation to a subpoena, contact our experienced family lawyers Brisbane or our family lawyers Brisbane Northside.  We can assist you to resolve any family law issue no matter where you may be located, including regarding parenting arrangements, child custody or family law property settlement. We provide a fixed fee initial consultation and can in many cases provide other fixed fee family law services.  You are also welcome to read on………………..

In the matter of Iannello & Iannello [2018] FCCA 3528 (12 December 2018), the Federal Circuit Court of Australia considered amongst other things an objection made by the Wife to a subpoena issued by the Husband seeking information relating to the Wife’s telephone records.

The Husband had issued two subpoenas to Telstra Corporation.

The second subpoena issued to Telstra Corporation (“Second Telstra Document” or “Second Telstra Subpoena“) ) sought the following records relating to the mobile number of the Wife for the period from 1 July 2016 to present. The Husband claimed that the purpose of the document was to demonstrate that the Husband had primary care of the children during the relationship of the parties.

The Court made orders setting aside that document because:

  • The Husband did not establish a legitimate forensic purpose; and
  • It was issued for an improper purpose and was an abuse of process.

The Court when considering the purpose of the Second Telstra Subpoena noted Section 60CA of the Family Law Act 1975 (Cth) (“FLA”) which requires that “in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration”.

Further, the Court referred to section 60CC(2) FLA which sets out the two primary considerations that  the Court must take into account in determining
what is in a child’s best interests. The first mentioned consideration is “the benefit to the child of having a meaningful relationship with both of the
child’s parents”.  

The decision of the Full Court of the Family Court of Australia in McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 was adopted where the Full Court had said that a prospective approach should be adopted, meaning that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents.

The Full Court approved the interpretation of “meaningful relationship” given in Mazorski & Albright [2007] FamCA 520 where the Court determined that “a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering ….the requirement for time with children to be, where possible and in their best interests, substantial and significant”.

The purpose of the Second Telstra Subpoena was to prove that the Wife was “often working long hours” and that her involvement with the children was mainly during weekends, when she was not working or attending at her gym.

That document was an attempt at a quantitive assessment of the time that the Wife was either working late or at the gym. The Court said that that information does not assist the Court in determining orders to be made pursuant to s.60CC(2)(a) FLA.

Neither would that information assist the Court in determining the additional considerations of what is in a child’s best interests under s.60CC(3)(a) to (m) of FLA. The relationship between the child and each of his or her parents is one of a number of the additional considerations (s.60CC(3)(b)(i) FLA).

The Court said that the amount of time that the Husband or Wife spends with the children “does not define the nature of the relationship with each of the Children”.

Any information that was obtained under the Second Telstra Document “will not prove that the Children were at home when the Wife was not there. It will not prove that the Husband was home when the Wife was not there. It will not prove what the Husband was doing at home. The evidence it would produce would not be relevant for the purposes of ss60CC(2) and (3). It would serve no forensic purpose for the assessment of the considerations in ss.60CC(2) and (3)” of the FLA.

The Court said that it must refuse access to documents and set aside the subpoena as a legitimate forensic purpose for the subpoena had not been established.

The Court further set aside the Second Telstra Subpoena on the ground that it was an abuse of process. Taking into account the then available evidence, the Court concluded that theHusband intends to use the information obtained from the Second Telstra Subpoena to inquire into the Wife’s life. I am of the opinion that the Husband is intending to try to find out more information than what time the Wife arrived home from work each night.
This is an improper purpose and an abuse of process

Contact our experienced Brisbane family lawyers or our family lawyers Brisbane Northside (Ph.: 07 3506 3651). You can expect to obtain practical and effective advice from our family law solicitors. Our goal is to assist our clients to achieve an amicable agreement with their former partner without going to court, whether regards child custody orders or other parenting arrangements or family law property settlement. However, if court action is necessary, we have the experience to represent you effectively in court.

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from our Brisbane family lawyers or our family lawyers Brisbane Northside.