Limitations on Parties use of Documents Produced under Subpoena

07/09/2017

In Family Law proceedings it is not uncommon for documents to be requested under Subpoena by either party from various entities when collating evidence to support a particular aspect of their case.

Parties are limited and there are restrictions upon the parties’ use of documents and information obtained during Family Court proceedings.  The Family Law Rules provides two protections so that documents produced during the proceedings are not produced for improper purposes.

Rule 13.07A of the Family Law Rules provides:

           “A person who inspects or copies a document in relation to a case under these Rules or an Order:

           (a)       Must use the document for the purpose of the case only; and

(b)       Must not otherwise disclose the contents of the document, or give a copy of it, to any person without the Courts permission.”

Similarly Section 121 of the Family Law Act places a restriction on the publication of Court proceedings which identifies a party to the proceedings or a person related to or associated with the party or a witness in the proceedings and publication is an offense punishable by imprisonment for a period not exceeding 1 year.

The Family Court often allows for the publication of cases pursuant to the provisions of the Family Law Act under a pseudonym and some particulars are redacted from the Judgment.  Often in cases various Subpoena are issued for various purposes relating to the case.

In a recent case at the request of the Applicant a Subpoena was issued to a firm of Solicitors for various records.  One issue that may arise in the circumstances is whether the documents are relevant to the issues.  This was not such the case.

The Solicitors who received the Subpoena requested an undertaking to be given by the Applicant who caused the Subpoena to be issued as to confidentially prior to disclosure of the documents by the Solicitors who had received the Subpoena.

The matter came before the Family Court of Australia to consider whether it was appropriate that the undertaking be provided.  The Court considered the matter and provided a reminder that a party who receives documents during the Court proceedings has obligations not to disclose those documents for example in accordance with Rule 13.07A referred to above and in accordance with other principles.

The Family Court of Australia considered the ambit of the Subpoena and the undertaking sought by the recipient of the Subpoena and the rules as referred to above.  The Court dismissed the Application by the Solicitor for the undertaking on the basis that there was no authority to support the Solicitors contention that the undertaking was required in addition to the protection that was already available to those Solicitors in accordance with the law.  This is similar to the decision of Mr Justice O’ Ryan in 2003 where in similar circumstances the documents were required without such an undertaking.

If you have any issues that arise in relation to disclosure of any documents that are provided to you or to the other party in any proceedings care is required to ensure compliance with the rules of the Court, the fundamental rules of non-disclosure other than for the purposes for which the documents are given and also the consequences of failure to comply with those rules.

If you have any queries or concerns as to the legitimacy of use of the documents being requested under Subpoena, please do not hesitate to telephone Richard Watson, our experienced litigation Solicitor including family law and other related matters or his Personal Assistant Shereen Da Gloria to discuss this important matter.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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