The Law
Under rule 6.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules“) the Court has the power to issue a Subpoena.
Pursuant to rule 6.33, a person Subpoenaed can apply to have the Subpoena set aside (whether you’re a person or an entity, i.e., company), in whole or in part.
Under Rule 6.35, a person served with a Subpoena can seek payment for any loss or expense relating to the production of documents in compliance with the Subpoena (this can include legal costs).
Subpoenas can require you to produce documents or to give evidence at Court, or both.
The Subpoena process
The Subpoena process follows three steps as follows:
1. The person Subpoenaed needs to bring the documents to the Court and they should be handed to the Judge. The Judge will then determine objections or set aside the Subpoena.
2. The Judge then decides as to the use of the documents (i.e., can the subpoenaed documents be inspected by the parties).
3. Finally, the Judge then decides whether the evidence and information in the Subpoenas are going to be admitted into evidence, wholly or in part.
The 10 principles
When dealing with step one above (Court to determine any objections or to set aside the Subpoena), the following 10 principles guide the Court’s consideration.
1. A subpoena may be set aside if it is oppressive (burdened with onerous tasks), invades important rights such as privacy, or effectively forces a non-party to make a decision if the documents in their possession are discoverable or not.
2. A subpoena is an abuse of process if it lacks a legitimate forensic purpose. The Court’s role is to prevent injustice both in why the subpoena was issued and in its effect on the recipient.
3. A subpoena cannot be used as a fishing expedition to see whether a case might exist or whether unspecified documents might reveal something useful.
4. The issuing party must show a legitimate forensic purpose and that the documents are likely to materially assist on an issue in the case.
5. The documents must have apparent relevance to an issue in the proceeding. A speculative or remote possibility is not enough.
6. A useful test is whether the documents could reasonably throw light on an issue in the proceeding. If not, production should not be ordered.
7. A subpoena must describe the documents with reasonable particularity and not be so broad, vague, or burdensome that it captures irrelevant material.
8. A subpoena is not a substitute for discovery. It must have a direct connection to the issues and cannot be used to fix inadequate discovery by a party.
9. In assessing oppression, the Court considers whether the subpoena is seriously and unfairly burdensome, prejudicial, or damaging.
10. For subpoenas to non-parties, the Court balances the recipient’s privacy against the public interest in allowing parties to properly present their case.
Gotti v Gevorgyan [2025] FedFamC1F 512 (31 July 2025)
The husband sought documents about a family trust of which the wife was only a beneficiary, not an officeholder or alter ego. Because she had no proprietary interest in the trust, its assets were not part of the matrimonial pool. Any possible distribution to her was only a financial resource, and there was no basis to assign it real value.
The Court also found the subpoena was a fishing expedition. It sought documents to see whether the wife might have a claim to further funds from the trust or her father, despite no evidence of such a claim and the wife’s denial that any claim existed.
The subpoena was also oppressive. Its wording was extremely broad, multiple subpoenas had been issued to a third party, and compliance would impose further unnecessary burden and cost on the trust, especially given the husband had not paid earlier costs.
The subpoena was set aside on the basis that it was both oppressive and an abuse of process as a fishing expedition.