Family Law case note: Subpoena puts the privacy of third parties at risk in family law matter

Jan 15, 2019

Increasingly in family law matters, the privacy of third parties can be compromised as a result of a subpoena being filed by a party to the proceedings before the Court.

In the recent case Sully & Sully [2018] FamCA 786, the Family Court considered, inter alia, what constitutes an ‘interested person’ in the context of service of a subpoena and whether a non-party ― who is at risk of having their privacy breached ― will be deemed an ‘interested person’.

Sully & Sully [2018] FamCA 786

In proceedings before the Family Court, Ms Sully (the wife) issued subpoenae to various banks seeking documents in relation to Mr Sully (the husband), the parties’ four children and 53 entities (not all of which were controlled by the husband). The husband objected to the subpoenae on several grounds.

Justice Cronin adjourned the husband’s application and prevented the release of the documents until the wife served all non-parties whose records were captured by the subpoenae to afford those persons an opportunity to consider the position and object. His Honour also encouraged the practitioners involved to communicate with each other about the documents.

The subpoenae in question, would have inadvertently resulted in the production of documents that revealed private matters about individuals unrelated to the proceeding (including notes of conversations with bank managers relating to directors).

A cautionary tale to litigants and practitioners

Although Justice Cronin did not decide to strike out the subpoenae, the case serves as a cautionary tale to litigants and practitioners to be mindful of the following:

  1. ‘Interested person’ includes any person who has a sufficient interest in the documents sought falling within the scope of the subpoena.

    In Sully & Sully: The subpoenae sought notes of conversations with bank managers relating to directors and the like. As such, it was conceivable that the subpoenae would produce documents (such as file notes) that evidenced discussions between non-parties and the bank. It was therefore necessary for the wife to serve those non-parties also.
  1. If it appears that a non-party’s privacy will be invaded, they are arguably deemed an ’interested person’ and should be served with a copy of the subpoena.

    In Sully & Sully: The wife argued that service on a company in accordance with the Corporations Act 2001, constituted proper service on the directors themselves, in their personal capacities. This argument was rejected. His Honour was of the view that the directors should have been personally served.
  1. A subpoena can be set aside where it is used as a substitute for discovery.

    In Sully & Sully: One of the tests for determining whether it is more appropriate for a discovery application to be filed is to ask whether the subpoenae would require the recipient to work out and make a judgment call as to what documents are required. In this case, his Honour was surprised that the banks did not object to the subpoenae, given that they were so onerous and wide-ranging in their scope. His Honour commented that the very fact that the wife’s supporting affidavit material referred to directors in their personal capacities, should have alerted the person drafting the subpoenae to the ’interested person‘ concept.

In conclusion

The case demonstrates the importance of proceeding with caution when drafting and filing a subpoena for the production of documents which may impact third parties. As Justice Cronin indicated, if the process of effecting service becomes so burdensome because of the number of persons required to be served, it could give rise to a finding that the issuing party is engaging in a fishing expedition, and the subpoena being deemed an abuse of process.

More information

For more information, or to discuss the issues raised regarding the privacy of third parties affected by subpoenae in family law matters, please contact Rebecca Goldman, Principal Lawyer, on (03) 8600 8838 or rgoldman@kcllaw.com.auor Dominique Mavroyeni, Associate, on (03) 8600 8838 or dmavroyeni@kcllaw.com.au.

Author

Learn more about the author, Dominique Mavroyeni, Associate.

Note: This update is a guide only and is not intended to constitute legal advice.

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