Division 6.5.3Non‑compliance with subpoena

## Part 6.1—Duty of disclosure ### Division 6.1.1—General duty of disclosure #### 6.01 General duty of disclosure (1) Subject to subrule (4), each party to a proceeding has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the proceeding, in a timely manner. > Note: The proceedings to which the duty of disclosure applies include both parenting proceedings and financial or property proceedings. For the duty of disclosure in proceedings relating to financial or property matters, see subsections 71B(1) and 90RI(1) of the Family Law Act. Failure to comply with the duty may result in the court excluding evidence that is not disclosed or imposing a consequence, including punishment for contempt of court. (2) The duty of disclosure applies from the start of the proceeding and continues until the proceeding is finalised. > Note: Parties are also expected to comply with the duty of disclosure when complying with the pre‑action procedures. For the duty of disclosure while preparing for a proceeding relating to financial or property matters, see subsections 71B(5) and 90RI(5) of the Family Law Act. (3) The duty of disclosure also applies to a litigation guardian appointed under Part 3.5 to the extent they are capable of complying with the duty. > Note: For financial or property proceedings, see subsections 71B(3) and 90RI(3) of the Family Law Act. (4) This rule does not apply to a respondent to an application alleging contravention or contempt. > Note: For financial or property proceedings, see subsections 71B(4) and 90RI(4) of the Family Law Act. #### 6.02 Undertaking by party (1) A party (but not an independent children’s lawyer) must file a written notice: (a) stating that the party: (i) has read section 71B or 90RI of the Family Law Act (as applicable) and Parts 6.1 and 6.2 of these Rules; and (ii) is aware of the party’s duty to the court and each other party (including any independent children’s lawyer) to give full and frank disclosure of all information relevant to the issues in the proceeding, in a timely manner; and (b) undertaking to the court that, to the best of the party’s knowledge and ability, the party has complied with, and will continue to comply with, the duty of disclosure; and (c) acknowledging that a breach of the undertaking may be a contempt of court. (2) A party commits an offence if the party makes a statement or signs an undertaking the party knows, or should reasonably have known, is false or misleading in a material particular. Penalty: 50 penalty units. > Note: Subrule (2) is in addition to the court’s powers under section 112AP of the Family Law Act relating to contempt and the court’s power to make an order for costs. (3) If the court makes an order against a party under section 112AP of the Family Law Act in respect of a false or misleading statement referred to in subrule (2), the party must not be charged with an offence against subrule (2) in respect of that statement. (4) A notice under subrule (1) must be in accordance with the approved form and must be filed before the first court date, unless the court otherwise orders. #### 6.03 Duty of disclosure—documents The duty of disclosure applies to each document that: (a) is or has been in the possession, or under the control, of the party disclosing the document; and (b) is relevant to an issue in the proceeding. > Note 1: In particular types of proceedings, practice directions may specify the documents that must be disclosed in those proceedings. See also rules 6.05 and 6.06. > Note 2: A document, or part of a document, must not be disclosed if the court has made an order under subsection 102BD(1) of the Family Law Act in relation to the document or part of the document. #### 6.04 Use of documents (1) Unless the court gives permission, a person who inspects, copies or receives a document, in relation to a proceeding, under these Rules or an order: (a) must use the document for the purpose of the proceeding only; and (b) must not otherwise disclose the contents of the document, or give a copy of it, to any other person. (2) However: (a) a solicitor may disclose the contents of the document or give a copy of the document to the solicitor’s client or counsel; and (b) a client may disclose the contents of the document or give a copy of the document to the client’s solicitor or counsel; and (c) this rule does not affect the right of a party to use a document or to disclose its contents if that party has a common interest in the document with the party who has possession or control of the document. > Note: For permission to use a document or information in proceedings for another purpose, see rule 15.26. ### Division 6.1.2—Duty of disclosure in specific types of proceedings #### 6.05 Duty of disclosure—parenting proceedings (1) The duty of disclosure applies to a parenting proceeding. (2) Documents that may contain information relevant to a parenting proceeding may include, among other documents: (a) criminal records of a party; and (b) documents filed in intervention order proceedings concerning a party; and (c) medical reports about a child or party; and (d) school reports. > Note: A document, or part of a document, must not be disclosed if the court has made an order under subsection 102BD(1) of the Family Law Act in relation to the document or part of the document. #### 6.06 Duty of disclosure—financial or property proceedings (1) Subrules (2) to (8) do not apply to a party to a financial or property proceeding who is not a party to the marriage or de facto relationship to which the application relates, except to the extent that the party’s financial circumstances are relevant to the issues in dispute. (2) A party to a financial or property proceeding must make full and frank disclosure of the party’s financial circumstances, including the following: (a) the party’s earnings, including income that is paid or assigned to another party, person or legal entity; (b) any vested or contingent interest in property; (c) any vested or contingent interest in property owned by a legal entity that is fully or partially owned or controlled by a party; (d) any income earned by a legal entity fully or partially owned or controlled by a party, including income that is paid or assigned to any other party, person or legal entity; (e) the party’s other financial resources; (f) any trust: (i) of which the party is the appointor or trustee; or (ii) of which the party, the party’s child, spouse or de facto spouse is an eligible beneficiary as to capital or income; or (iii) of which a corporation is an eligible beneficiary as to capital or income if the party, or the party’s child, spouse or de facto spouse is a shareholder or director of the corporation; or (iv) over which the party has any direct or indirect power or control; or (v) of which the party has the direct or indirect power to remove or appoint a trustee; or (vi) of which the party has the power (whether subject to the concurrence of another person or not) to amend the terms; or (vii) of which the party has the power to disapprove a proposed amendment of the terms or the appointment or removal of a trustee; or (viii) over which a corporation has a power referred to in any of subparagraphs (iv) to (vii), if the party, the party’s child, spouse or de facto spouse is a director or shareholder of the corporation; (g) any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity referred to in paragraph (c), a corporation or a trust referred to in paragraph (f) that may affect, defeat or deplete a claim: (i) in the 12 months immediately before the separation of the parties; or (ii) since the final separation of the parties; (h) liabilities and contingent liabilities. (3) Paragraph (2)(g) does not apply to a disposal of property made: (a) with the consent or knowledge of the other party; or (b) in the ordinary course of business. (4) A party to a marriage or de facto relationship starting, or filing a response or reply to, a financial or property proceeding (other than by an Application for Consent Orders) must file, at the same time: (a) a Financial Statement; and (b) a financial questionnaire in accordance with the approved form, unless the party is required by these Rules to file an affidavit. (5) If a party is aware that the completion of a Financial Statement will not fully discharge the duty to make full and frank disclosure, the party must also file an affidavit giving further particulars. (6) If a party’s financial circumstances have changed significantly from the information set out in the Financial Statement or an affidavit filed under subrule (5), the party must, within 21 days after the change of circumstances, file: (a) a new Financial Statement; or (b) if the changes can be set out clearly in 300 words or less—an affidavit containing details about the party’s changed financial circumstances. (7) Unless the court otherwise orders, a party (the first party) who is required by this rule to file a Financial Statement (other than a respondent to an application for maintenance only) must, before the first court date, serve on each other party who has an address for service in the proceeding the following documents: (a) a copy of the party’s 3 most recent taxation returns; (b) a copy of the party’s 3 most recent taxation assessments; (c) if the first party is a member of a superannuation plan: (i) the completed superannuation information form for any superannuation interest of the party (unless it has already been filed or exchanged); and (ii) for a self‑managed superannuation fund—the trust deed and a copy of the 3 most recent financial statements for the fund; (d) if the party has an Australian Business Number—a copy of the last 4 business activity statements lodged; (e) if there is a partnership, trust or company (other than a public company) in which the party has an interest—a copy of the 3 most recent financial statements and the last 4 business activity statements lodged by the partnership, trust or company. (8) A respondent to an application for maintenance only must bring to the court on the first court date the following documents: (a) a copy of the respondent’s taxation return for the most recent financial year; (b) a copy of the respondent’s taxation assessment for the most recent financial year; (c) copies of the respondent’s bank records for the 12 months immediately before the date when the application was filed; (d) the respondent’s most recent pay slip; (e) if the respondent has an Australian Business Number—a copy of the last 4 business activity statements lodged; (f) any document in the respondent’s possession, custody or control that may assist the court in determining the income, needs and financial resources of the respondent. (9) This rule does not require a party to be served with a document that has already been provided to the party. ## Part 6.2—Disclosure procedures ### Division 6.2.1—Introduction #### 6.07 Application of Part 6.2 This Part does not apply to the following applications: (a) an application for an order that a marriage is a nullity; (b) an application for a declaration as to the validity of a marriage; (c) an application for a declaration as to the validity of a divorce or annulment of marriage. > Note: This Part also does not apply to child support and child maintenance proceedings (see rule 1.13). ### Division 6.2.2—Processes of disclosure, production and inspection #### 6.08 Application of Division 6.2.2 This Division does not affect: (a) the right of a party to inspect a document, if the party has a common interest in the document with the party who has possession or control of the document; or (b) any other right of access to a document other than under this Division; or (c) an agreement between the parties for disclosure by a procedure that is not described in this Division. #### 6.09 Disclosure by list of documents (1) After a proceeding has been allocated a first court date, a party (the requesting party) may, by written notice, ask another party (the disclosing party) to give the requesting party a list of documents to which the duty of disclosure applies. (2) The disclosing party must, within 21 days after receiving the notice, serve on the requesting party a list of documents identifying: (a) the documents to which the duty of disclosure applies; and (b) the documents (if any) no longer in the disclosing party’s possession or control to which the duty would otherwise apply (with a brief statement about the circumstances in which the documents left the party’s possession or control); and (c) the documents (if any) for which privilege from production is claimed. (3) If a document that must be disclosed is located by, or comes into the possession or control of, a disclosing party after service of the list under subrule (2), the party must disclose the document within 7 days after it is located or comes into the party’s possession or control. #### 6.10 Request for disclosed document (1) This rule applies to a document disclosed under rule 6.09. (2) The requesting party may, by written notice, ask the disclosing party to: (a) provide a copy of the document in accordance with rule 6.13; or (b) produce the document for inspection in accordance with rule 6.14. #### 6.11 Request for other identified document (1) This rule applies to a document referred to: (a) in a document filed or served by a party on another party or on an independent children’s lawyer; or (b) in correspondence prepared and sent by or to another party or to an independent children’s lawyer. (2) A party may, by written notice, require another party to: (a) provide a copy of the document in accordance with rule 6.13; or (b) produce the document for inspection in accordance with rule 6.14. #### 6.12 Request to inspect original document (1) A party may, by written notice, require another party to produce for inspection an original document if the document is a document that must be produced under the duty of disclosure. (2) If a party receives a notice under subrule (1), the party must produce the document for inspection in accordance with rule 6.14. #### 6.13 Provision of copies of documents (1) Subject to subrule (2) and rule 6.15, a party must provide copies of documents to the party requesting the copies: (a) within 21 days after receiving a notice under paragraph 6.10(2)(a) or 6.11(2)(a); and (b) at the expense of the party requesting the copies; and (c) if practicable, in an electronic format. (2) If it is not convenient for a disclosing party to provide copies of documents under subrule (1) because of the number and size of the documents, the disclosing party must produce the documents for inspection in accordance with rule 6.14. #### 6.14 Production of documents for inspection (1) A party must produce documents for inspection in accordance with this rule if the party: (a) receives a notice under paragraph 6.10(2)(b); or (b) receives a notice under paragraph 6.11(2)(b); or (c) receives a notice under paragraph 6.10(2)(a) or 6.11(2)(a) and subrule 6.13(2) applies; or (d) receives a notice under subrule 6.12(1). (2) Subject to rule 6.15, a party must, within 14 days after receiving a notice referred to in subrule (1): (a) notify, in writing, the party requesting the document of a convenient place and time to inspect the document; and (b) produce the document for inspection at that place and time; and (c) allow copies of the document to be made, at the expense of the party requesting it. (3) The time fixed under paragraph (2)(a) must be within 21 days after the party receives the notice referred to in subrule (1) or as otherwise agreed. (4) A party who fails to inspect a document after receiving a notice under subrule (2) may not later do so unless the party tenders an amount for the reasonable costs of providing another opportunity for inspection. #### 6.15 Documents that need not be produced (1) A party must disclose, but need not provide a copy of nor produce to the party requesting it: (a) a document for which there is a claim of privilege from production; or (b) a document that is no longer in the disclosing party’s possession or control; or (c) a document a copy of which has already been provided, if the copy contains no change, obliteration or other mark or feature that is likely to affect the outcome of the proceeding. (2) Subrule (1) does not affect the operation of rule 7.14. > Note: Rule 7.14 requires the disclosure of an expert’s report in a parenting proceeding. (3) Despite the duties of disclosure and the disclosure procedures in this Part, if an order has been made by the court that production of a document, or part of a document, would disclose: (a) a protected confidence; or (b) the contents of a document recording or relating to a protected confidence; the document, or part of the document, must not be produced. ### Division 6.2.3—Objecting to production #### 6.16 Objection to production (1) This rule applies if: (a) a party claims: (i) privilege from production of a document; or (ii) that the party is unable to produce a document; and (b) another party, by written notice, challenges the claim. (2) The party making the claim must, within 7 days after the other party challenges the claim, file an affidavit setting out details of the claim. (3) The court may inspect the document for the purpose of determining whether the claim is valid. ### Division 6.2.4—Orders in relation to disclosure #### 6.17 Consequences of non‑disclosure If a party does not disclose a document as required by these Rules: (a) the party: (i) must not offer the document, or present evidence of its contents, at a hearing or trial without the other party’s consent or the court’s permission; and (ii) may be guilty of contempt for not disclosing the document; and (iii) may be ordered to pay costs; and (b) the court may stay or dismiss all or part of the party’s case. > Note 1: A party who discloses a document under this Part must produce the document at the trial if a notice to produce has been given (see rule 6.42). > Note 2: Section 112AP of the Family Law Act sets out the court’s powers in relation to a contempt of court. #### 6.18 Application for order for disclosure, production or inspection (1) A party (the first party) may seek an order that: (a) another party comply with a request for a list of documents in accordance with rule 6.09; or (b) another party provide an affidavit of documents; or (c) another party disclose a specified document, or class of documents, by providing a copy of the document, or each document in the class; or (d) another party produce a document for inspection; or (e) another party file an affidavit stating: (i) that a specified document, or class of documents, does not exist or has never existed; or (ii) the circumstances in which a specified document or class of documents ceased to exist or passed out of the possession or control of that party; or (f) the first party be partly or fully relieved of the duty of disclosure. (2) A party making an application under subrule (1) must satisfy the court that the order is appropriate in the interests of the administration of justice. (3) The court may make an order of a kind referred to in subrule (1) on its own initiative if it is satisfied that the order is appropriate in the interests of the administration of justice. (4) In making an order under subrule (1) or (3), the court may consider: (a) whether the disclosure sought is relevant to an issue in dispute; and (b) the relative importance of the issue to which the document or class of documents relates; and (c) the likely time, cost and inconvenience involved in disclosing a document or class of documents, taking into account the amount of the property, or complexity of the corporate, trust or partnership interests (if any), involved in the proceeding; and (d) the likely effect on the outcome of the proceeding of disclosing, or not disclosing, the document or class of documents. (5) If the disclosure of a document is necessary for the purpose of resolving a proceeding at a dispute resolution event, a party (the requesting party) may, on the first court date, seek an order that another party: (a) provide a copy of the document to the requesting party; or (b) produce the document to the requesting party for inspection and copying. (6) The court may make an order under subrule (5) only in exceptional circumstances. (7) The court may inspect a document to decide: (a) an application made under this rule; or (b) whether to make an order under subrule (3). #### 6.19 Costs of compliance If the cost of complying with the duty of disclosure would be oppressive to a party, the court may order another party to: (a) pay the costs; or (b) contribute to the costs; or (c) give security for costs. #### 6.20 Electronic disclosure The court may make an order directing electronic disclosure of documents. ## Part 6.3—Specific questions #### 6.21 Application of Part 6.3 This Part applies only in relation to an application seeking final orders. > Note: This Part does not apply to child support and child maintenance proceedings (see rule 1.13). #### 6.22 Service of specific questions (1) After a proceeding has been allocated a first court date, a party (the requesting party) may serve on another party (the answering party) a request to answer specific questions. (2) A party may only serve one set of specific questions on another party. (3) The specific questions must: (a) be in writing; and (b) be limited to 20 questions (with each question taken to be one specific question); and (c) not be vexatious or oppressive. (4) If an answering party is required, by a written notice served under rule 6.09 or an order, to give the requesting party a list of documents, the answering party is not required to answer the questions until the time for disclosure under Part 6.2 or an order has expired. (5) The requesting party must serve a copy of any request to answer specific questions on all other parties. #### 6.23 Answering specific questions (1) A party on whom a request to answer specific questions is served must answer the questions in an affidavit that is filed and served on each person to be served within 21 days after the request was served. (2) The party must, in the affidavit: (a) answer, fully and frankly, each specific question; or (b) object to answering a specific question. (3) An objection under paragraph (2)(b) must: (a) specify the grounds of the objection; and (b) briefly state the facts in support of the objection. > Note: A party may object to answering a specific question on the basis that it would disclose a protected confidence or the contents of a document recording or relating to a protected confidence (see sections 102BC and 102BD of the Family Law Act). #### 6.24 Orders in relation to specific questions (1) A party may apply for an order: (a) that a party comply with rule 6.23 and answer, or further answer, a specific question served on the party under rule 6.22; or (b) determining the extent to which a question must be answered; or (c) requiring a party to state specific grounds of objection; or (d) determining the validity of an objection; or (e) that a party who has not answered, or who has given an insufficient answer, to a specific question be required to attend court to be examined. (2) A party making an application under subrule (1) must satisfy the court that the order is appropriate in the interests of the administration of justice. (3) In considering whether to make an order under subrule (1), the court may take into account whether: (a) the requesting party is unlikely, at the trial, to have another reasonably simple and inexpensive way of proving the matter sought to be obtained by the specific questions; and (b) answering the questions will cause unacceptable delay or undue expense; and (c) the specific questions are relevant to an issue in the proceeding. ## Part 6.4—Disclosure from employer #### 6.25 Disclosure of employment information in proceedings for financial or property orders (1) This rule sets out the information a party may require from an employer of a party to a financial or property proceeding. (2) The court may order a party to inform the court, in writing, within a specified time, of: (a) the name and address of the party’s employer or, if the party has more than one employer, each employer; and (b) other information the court considers necessary to enable an employer to identify the party. (3) Subrule (4) applies if: (a) a party (the requesting party) requests the employer of another party (the employee) to give particulars about: (i) the employer’s indebtedness to the employee; or (ii) the employee’s present rate of earnings, or of all the earnings of the employee that became payable during a specified period; or (iii) the employee’s conditions of employment; or (iv) the employee’s accrued or potential leave entitlements as at a particular date or dates; or (v) any entitlement of the employee to earn bonuses and any conditions that the employee must satisfy in order to be paid such bonuses; and (b) the employer refuses, or fails to respond to, the requesting party’s request. (4) The requesting party may apply for an order that the employer inform the court, in writing, within a specified time, of the particulars referred to in paragraph (3)(a). > Note: A document purporting to include the information referred to in paragraph (2)(a) or (b), or the particulars referred to in paragraph (3)(a), may be admitted as evidence of its contents (see section 48 of the Evidence Act 1995). However, subject to sections 4 and 5 of the Evidence Act 1995, that Act does not apply to the Family Court of Western Australia or any other court of a State. ## Part 6.5—Subpoenas and notices to produce ### Division 6.5.1—Subpoenas: general #### 6.26 Issue of subpoena (1) The court may, on the court’s own initiative or at the request of a party, issue: (a) a subpoena for production; or (b) a subpoena to give evidence; or (c) a subpoena for production and to give evidence. (2) A subpoena must be in accordance with the approved form. (3) A subpoena must specify the name or designation by office or position of the person subpoenaed. (4) A subpoena requiring a person to produce a document or thing must include an adequate description of the document or thing and the time and place for production. (5) A party should not request the issue of a subpoena for production and to give evidence if production would be sufficient in the circumstances. #### 6.27 Limits on requests for subpoenas (1) A self‑represented party must not request the issue of a subpoena without the permission of the court. (2) A party or an independent children’s lawyer must not request the issue of: (a) a subpoena to give evidence; or (b) a subpoena for production and to give evidence; or (c) a subpoena for production for a final hearing; or (d) a subpoena for production directed to another party to the proceeding; without the permission of the court. (2A) A party or an independent children’s lawyer must not request the issue of a subpoena for production of a document if the court has made an order that production of the document, or part of the document, would disclose: (a) a protected confidence; or (b) the contents of a document recording or relating to a protected confidence. > Note: See section 102BD of the Family Law Act. (3) Subject to subrules (1) to (2A), a party may request the issue of up to 5 subpoenas for production for the hearing of an application for an interlocutory order without the permission of the court. (4) Subject to subrules (1) to (2A), an independent children’s lawyer may request the issue of any number of subpoenas for production for the hearing of an application for an interlocutory order without the permission of the court. (5) A request made under subrule (3) must state the total number of subpoenas the party has already requested under that subrule in the proceeding. #### 6.28 Documents and things in possession of another court (1) The court must not issue a subpoena requiring the production of a document or thing in the possession of the court or another court. (2) A party who seeks production of a document or thing in the possession of another court must give to the Registry Manager a written notice setting out: (a) the name and address of the court having possession of the document; and (b) a description of the document to be produced; and (c) the date when the document is to be produced; and (d) the reason for seeking production. (3) On receiving a notice under subrule (2), the Registry Manager may ask the other court, in writing, to send the document to the filing registry by a specified date. (4) A party may apply for permission to inspect and copy a document produced to the court under this rule. #### 6.29 Time limits (1) A subpoena requiring production only must be made returnable no later than 3 days before any court event to which the subpoena relates, unless the court otherwise orders. (2) A subpoena requiring attendance of a person must be made returnable on a day when the proceeding is listed for a hearing. (3) Unless the court directs otherwise: (a) a subpoena requiring attendance must be served at least 7 days before attendance under the subpoena is required; and (b) a subpoena requiring production must be served at least 10 days before production under the subpoena is required. > Note: A subpoena must be served within 3 months after it is issued (see rule 2.30). #### 6.30 Service (1) A subpoena requiring the person subpoenaed to give evidence must be served by personal service. (2) A subpoena for production only may be served: (a) by ordinary service; or (b) by a manner of service agreed between the issuing party and the person subpoenaed. (3) The issuing party for a subpoena must serve by ordinary service a copy of the subpoena on each other party, any interested person and any independent children’s lawyer in the proceeding. > Note 1: For personal service, see Division 2.6.2. For ordinary service, see Division 2.6.3. > Note 2: For service on a corporation, a subpoena must be served on the proper officer or other person entitled to accept service of a subpoena for a corporation (see subrule 6.26(3)). #### 6.31 Conduct money and witness fees (1) The person serving a subpoena must give the person subpoenaed conduct money sufficient for return travel between the place of residence or employment (as appropriate) of the person subpoenaed and the court. (2) The amount of conduct money must be at least equal to the minimum amount referred to in Part 1 of Schedule 2. (3) A named person served with a subpoena to give evidence and a subpoena to give evidence and produce documents is entitled to be paid a witness fee by the issuing party in accordance with Part 2 of Schedule 2, immediately after attending court in compliance with the subpoena. #### 6.32 Undertaking not to require compliance with subpoena The issuing party for a subpoena may, by notice in writing served on the person subpoenaed and on each other party, undertake not to require the person subpoenaed to comply with the subpoena. #### 6.33 Setting aside subpoena On application, the court may make an order setting aside all or part of a subpoena. #### 6.34 Order for cost of complying with subpoena Subject to rule 6.35, the court may, on application, make an order for the payment of any loss or expense incurred in complying with a subpoena. #### 6.35 Cost of complying with subpoena if not a party (1) This rule applies if: (a) a subpoena is addressed to a person who is not a party to the proceeding; and (b) before complying with the subpoena, the person subpoenaed has given the issuing party notice that substantial loss or expense would be incurred in properly complying with the subpoena, including a particularised estimate of the loss or expense; and (c) the court is satisfied that substantial loss or expense is incurred in properly complying with the subpoena. (2) Unless the court otherwise directs, the amount of the loss or expense estimated under paragraph (1)(b) is payable by the issuing party. (3) The court may fix the amount payable having regard to the scale of fees and allowances payable to witnesses in the Supreme Court of the State or Territory where the person is required to attend. (4) The amount payable is in addition to any conduct money paid. (5) If a party who is to pay an amount under this rule obtains an order for the costs of the proceeding, the court may: (a) allow the amount to be included in the costs recoverable; or (b) make any other order it thinks appropriate. ### Division 6.5.2—Subpoenas: production of documents and access by parties #### 6.36 Use of documents produced in compliance with subpoena for production (1) This Division: (a) applies to a subpoena for production; and (b) does not apply to a subpoena for production and to give evidence. (2) Unless the court gives permission, a person who inspects, copies or receives a copy of a document under these Rules or an order: (a) must use the document only for the purpose of the proceedings; and (b) must not otherwise disclose the contents of the document, or give a copy of it, to any other person. (3) However: (a) a solicitor may disclose the contents or give a copy of the document to the solicitor’s client or counsel; and (b) a client may disclose the contents or give a copy of the document to the client’s solicitor or counsel; and (c) nothing in this rule prevents a client or a client’s solicitor from providing a document to an expert for the purpose of the proceeding as permitted by Chapter 7. > Note: For permission to use a document or information in proceedings for another purpose, see rule 15.26. #### 6.37 Right to inspection of document (1) This rule applies if: (a) the court issues a subpoena for production of a document under rule 6.26; and (b) the issuing party serves a copy of the subpoena on each other party, any interested person and any independent children’s lawyer in accordance with rule 6.30, at least 10 days before the day stated in the subpoena for production; and (c) the issuing party files a notice of request to inspect in an approved form. (2) If a person subpoenaed, another party or an interested person has not made an objection under rule 6.38 by the date required for production, each party and independent children’s lawyer (if any) may, after that day: (a) inspect a subpoenaed document; and (b) take copies of a subpoenaed document, other than a child welfare record, criminal record, medical record or police record. > Note: For child welfare record, criminal record, medical record and police record, see rule 1.05. (3) Unless otherwise ordered, the inspection is by appointment and without an order. > Note: For child welfare records, there may be restrictions on inspection imposed by protocols entered into between the court and the relevant child welfare department. #### 6.38 Objection to production or inspection or copying of document (1) A person who objects to producing a document subpoenaed, or another party or an interested person who objects to the inspection or copying of a document subpoenaed by a party to the proceedings, must, before the day stated in the subpoena for production, give written notice of the objection and the grounds of the objection to: (a) the Registry Manager; and (b) if the objector is not the person subpoenaed—the person subpoenaed; and (c) each party, or other party, to the proceeding; and (d) each independent children’s lawyer, or each other independent children’s lawyer, in the proceeding. (2) If an issuing party seeks the production of: (a) a person’s medical records; or (b) another document recording or relating to a protected confidence made by the person; the person may, before the day stated in the subpoena for production, notify the Registry Manager in writing that the person wants to inspect the records for the purpose of determining whether to object to the inspection or copying of the document by any other party. (3) If a person gives a notice under subrule (2): (a) the person may inspect the medical records or other document and notify the Registry Manager in writing of an objection (including the grounds of the objection) within 7 days after the day stated in the subpoena for production; and (b) unless otherwise ordered, no other person may inspect the medical records or other document until the later of the following: (i) 7 days after the day stated in the subpoena for production; (ii) the day of the hearing and determination of the objection (if any). (4) A subpoena that is the subject of a notice of objection under this rule must be referred to the court for the hearing and determination of the objection. (5) The court may compel a person to produce a document to the court for the purpose of ruling on an objection made under subrule (1) or paragraph (3)(a). #### 6.39 Subpoena for production of documents or things (1) Subject to subrule (4), if a person is served with a subpoena for production: (a) the person, or the person’s agent, must produce the documents or things described in the subpoena at the registry stated in the subpoena; and (b) the Registry Manager must issue a receipt to the person producing the document or thing. (2) Unless the subpoena specifically requires the production of the original documents or things, the person, or the person’s agent, may produce a copy of the document or things. (3) The copy of the document or things may be: (a) a photocopy; or (b) in PDF format; or (c) in any other electronic form that the issuing party has indicated is acceptable. (4) If an order has been made by the court that production of a document, or part of a document, would disclose: (a) a protected confidence; or (b) the contents of a document recording or relating to a protected confidence; the document, or part of the document, must not be produced. > Note: See section 102BD of the Family Law Act. #### 6.40 Return of documents produced (1) This rule applies to a document produced in compliance with a subpoena that is to be returned to the person subpoenaed. (2) If the document is tendered as an exhibit at a hearing or trial, the Registry Manager must return it at least 28 days, and no later than 42 days, after the final determination of the application or appeal. (3) If: (a) a document is not tendered as an exhibit at a hearing or trial; and (b) the issuing party has been given 7 days written notice of the Registry Manager’s intention to return it; the Registry Manager may return the document to the person subpoenaed at a time that is earlier than the time referred to in subrule (2). (4) If the Registry Manager has received written permission from the person subpoenaed to destroy the document: (a) subrules (2) and (3) do not apply; and (b) the Registry Manager may destroy the document, in an appropriate way, not earlier than 42 days after the final determination of the application or appeal. (5) Nothing in this rule requires the Registry Manager: (a) to return to the person subpoenaed any document that is produced in electronic form; or (b) to obtain permission from the person subpoenaed to destroy such a document, in an appropriate way, not earlier than 42 days after the final determination of the application or appeal. ### Division 6.5.3—Non‑compliance with subpoena #### 6.41 Failure to comply with subpoena If: (a) a person subpoenaed does not comply with a subpoena; and (b) the court is satisfied that the person subpoenaed was served with the subpoena and given conduct money in compliance with rule 6.31; the court may issue a warrant for the person’s arrest and order the person to pay any costs caused by the non‑compliance. > Note 1: A person who does not comply with a subpoena may be guilty of contempt (see section 112AP of the Family Law Act). > Note 2: A person does not need to comply with a subpoena if it was not served in compliance with rule 6.30 or the person serving the subpoena did not give the person subpoenaed conduct money in compliance with rule 6.31. > Note 3: A person does not need to comply with a subpoena to produce a document or part of a document if an order has been made, under section 102BD of the Family Law Act, that it not be produced. ### Division 6.5.4—Notices to produce #### 6.42 Notice to produce (1) A party may, no later than 7 days before a hearing or 28 days before a trial, by written notice, require another party to produce, at the hearing or trial, a specified document that is in the possession or control of the other party. (2) A party receiving a notice under subrule (1) must produce the document at the hearing or trial, in a form in which it can be accessed in court. ### Division 6.5.5—Protecting sensitive information #### 6.43 Applications relating to protected confidences (1) Subject to subrules (2) and (3), a person may apply to the court for an order under section 102BD of the Family Law Act that a document or a part of a document: (a) not be produced; or (b) not be inspected; or (c) not be copied; by filing an application for an interlocutory order and an affidavit stating the facts relied on in support of the orders sought. > Note 1: See rule 2.01 for when an application for an interlocutory order may be included in an application for final orders. > Note 2: See rules 5.02 to 5.08 for the requirements for filing and responding to applications for interlocutory orders, including the limit on the length of affidavits. > Note 3: For the persons who may make an application for an order under section 102BD of the Family Law Act, see subsection 102BD(3) of that Act. (2) If: (a) a person is required by a subpoena to produce a document, or part of a document, that may disclose: (i) a protected confidence; or (ii) the contents of a document recording or relating to a protected confidence; and (b) the protected confider does not consent to the disclosure; an objection to the production of the document must be made in accordance with rule 6.38. (3) If: (a) an interested person is given a copy of a subpoena to produce a document, or part of a document, that may disclose: (i) a protected confidence; or (ii) the contents of a document recording or relating to a protected confidence; and (b) the protected confider does not consent to the disclosure; an objection to the inspection or copying of the document must be made in accordance with rule 6.38.