Leave requirements for subpoenas in family law proceedings

This flowchart guides you through the requirements for leave to file subpoenas in family law proceedings under rule 6.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules 2021)  and section 67ZBK of the Family Law Act 1975.

When is leave required?

I am representing myself Always need leave to issue a subpoena: see rule 6.27(1) of the Family Law Rules 2021
I am a legal representative If there are no interim/interlocutory applications ongoing Leave to issue subpoena required: see rule 6.27(2) of the Family Law Rules 2021
If the subpoena is addressed to a party in the proceeding (regardless of whether there are interim/interlocutory applications ongoing)
If the subpoena is addressed to a prescribed information sharing agency (for example a child-welfare agency or police) and an order has been made for documents or information from that information sharing agency under section 67ZBE of the Family Law Act Leave to issue required: see section 67ZBK of the Family Law Act
If there are current interim/interlocutory applications ongoing Up to five (5) subpoenas for production can be issued per interim/interlocutory application* without leave: see rule 6.27(3) of the Family Law Rules 2021
*Please refer to paragraph 5.22 of the Central Practice Direction - Family Law Case Management in relation to limits on filing interim/interlocutory applications.
I am an independent children’s lawyer If there are no interim/interlocutory applications ongoing Leave to issue subpoena required: see rule 6.27(2) of the Family Law Rules 2021
If the subpoena is addressed to a party in the proceeding (regardless of whether there are interim/interlocutory applications ongoing)
If the subpoena is addressed to a prescribed information sharing agency (for example a child-welfare agency or police) and an order has been made for documents or information from that information sharing agency under section 67ZBE of the Family Law Act Leave to issue required: see section 67ZBK of the Family Law Act
If there are current interim/interlocutory applications ongoing Unlimited subpoenas for production can be issued without leave: see rule 6.27(4) of the Family Law Rules 2021

Leave requirements to issue subpoenas

Unless otherwise stated, subpoena in the flowchart above refers to:

  • a subpoena to give evidence,
  • a subpoena for production and to give evidence,
  • a subpoena for production for a final hearing, or
  • a subpoena for production directed to another party to the proceeding.

Seeking leave

If leave is required, the issuing party (including any independent children’s lawyer) should provide a short cover letter outlining:

  1. a list of the subpoena/s you seek to have issued;
  2. the reasons why permission should be granted (including relevance or an order of the Court); and
  3. an undertaking that the Court has made no order restricting the issuing of any subpoena.

Upon receipt of this letter, Registry will direct consideration of the request to the Docket Registrar or Docket Judge.

When leave is not required

Where leave is not required because the subpoena is being issued for the hearing of an interlocutory or interim application, the issuing party should indicate, in their cover letter to the Court, how many subpoenas, of the five (5) allowed without leave, have already been issued: see rule 6.27(5) of the Family Law Rules 2021.

More information

For more information about subpoenas in family law proceedings, see Family Law: Subpoenas at www.fcfcoa.gov.au/fl/subpoenas

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