Subpoenas - FED

A new Practice Direction concerning electronic inspection of material produced under subpoenas has come into force in the Federal Circuit and Family Court of Australia. It applies to family law proceedings filed in the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) and replaces the Court's Special Measures Information Notice – COVID-19 Electronic Subpoena Inspection. The new practice direction is to be read together with the Family Law Act 1975 (Cth) and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. When seeking to inspect subpoenaed material, parties and legal practitioners must provide the following information in their request:

• file number;
• date and type of court hearing, conference or expert report;
• specific material that access is being requested to, and whether it is ‘inspection only’ material (see below, as defined in rule 6.37(2)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021);
• confirmation that a Notice of Request to Inspect has been filed;
• whether electronic access to the material is sought;
• a copy of photo identification or confirmation that they are a lawyer acting on behalf of a party, and the law firm at which they work.

Requests can be made by email. Each registry has a subpoena email address, as listed in the practice direction. If the material to which access is sought is not inspection only material, and photocopy access is permitted, the registry will provide the material electronically if possible directly to the party or practitioner requesting the material, usually by email. Inspection only material is:

• child welfare records, criminal records, medical records and police records, as defined in the Rules; and
• any other material excluded from photocopy access by order of the court.

Electronic access to inspection only material will not be permitted unless there are exceptional circumstances. Instead, the material needs to be inspected in person at a registry. The practice direction also makes provision for the tendering of subpoenaed material at a hearing. The By Lawyers Family Law Property Settlement and Children publications have been updated accordingly, along with the information about subpoenas in family law matters in the 101 Subpoena Answers reference materials.