Subpoenas

Chapter contents

Introduction

Subpoenas are dealt with in Part 15, Division 3 of the Family Court Rules 2021.

Subpoenas can be used to:

produce documents to the court, and/or
compel someone to attend court to give evidence.

You need leave (permission) to file a subpoena (r 246(3)(a) & (b)). You can seek leave orally or in writing (r 246(4)). You can seek leave without giving notice to the other parties (r 246(4)). A leave request can be determined in chambers in the absence of the other parties (r 246(4)).

When seeking permission to file a subpoena, you should explain:

why the evidence is relevant to your case
what, if any, attempts you have made to obtain the evidence or documents from the other party or by other means
whether the person that you want to subpoena has consented to the subpoena being issued, and
any other matter which may assist in determining whether to grant leave for the issue of the subpoena.

You need to file a Subpoena (Form 14) (r 246). In this form you select whether you want the person/agency named in the subpoena to:

attend court to give evidence only,
attend court to give evidence and produce documents, or
produce documents to the court only.

A subpoena may be directed to 2 or more persons if the subpoena is to give evidence only or the subpoena requires each named person to produce the same document (r 246(7)).

The Family Court of Western Australia has a system where subpoenas can be released for inspection (and copying) administratively. There only needs to be a return of subpoena hearing where an objection is raised.

A subpoena should not be issued for production of a document in the custody of the court or another court (r 247). See below for the process to seek a document/s or file held by another Court, governed by rule 259.

It is possible to amend a subpoena that has been issued but not served (r 248).

Protecting Sensitive Information – Protected Confidences

On 10 June 2025 new provisions were introduced to the Family Law Act 1975 (Cth) (“the FLA”) stopping certain sensitive information (protected confidences) being seen by others or used as evidence in family law matters.

Note: The changes in relation to protected confidences do not currently apply to WA cases involving children whose parents were never married as the Family Court Act 1997 (WA) (“the FCA”) has not been updated in this way.

A protected confidence is a confidential communication that is made during the course of a person’s relationship with health professionals (s102BA FLA), such as counsellors and doctors, and professionals providing sexual assault or family violence services. It can include confidential health records, or records from specialist sexual assault or family violence services (s102BB FLA).

The new legislation allows a court to stop sensitive information from being shared if the harm it could cause to a person or a child is greater than the need to use that information as evidence in a family law matter. In more simple terms, the court will weigh up whether sharing the sensitive information would hurt someone more than it would help the matter before the court.

The new sections introduced to the FLA are as follows:

Section 102BA & section102BB - these sections explain what types of information can be protected by defining what a protected confidence is, and describing the types of services where communication of protected confidences information can happen (health service, specialist sexual assault service or specialist family violence service). In summary, if sensitive information is shared with a professional during health or specialist support services, and that professional is expected to keep it secret, then you can ask the court to protect it in family law cases.
Section102BC - explains how the court can make orders to stop sensitive information from being adduced in family law cases including:
- by making an order on its own initiative (s102BC(2)(a);
- on an application by the confidant (the person acting in the professional capacity), the person who is in possession or control of the document or a litigation guardian (s102BC(2)(b)), or
- on an application by the protected confider (the person accessing the service) if they are over 18 (s102BC(2)(c)), or
- if the protected confider is under 18, on an application by a person who has or is proposing to have parental responsibility for the child, the ICL or any other person with whom the child lives (s102BC(2)(d)).
Section 102BD - explains how the court can make orders to stop sensitive information from being shared, including when responding to a subpoena i.e. the court may direct that a document or part of a document not be produced, or not be inspected, or copied, despite a disclosure requirement if the court finds that compliance would disclose a protected confidence.
Section 102BE - explains the test the court uses to decide if sensitive information should be protected. It also lists the things (or ‘considerations’) the court will think about when making this decision.
- The test used by the court to determine a protected confidence is if
  - it is likely that harm would or might be caused (directly or indirectly) to the protected confider, or to a child to whom the proceedings relate, if the evidence were adduced or the document or part produced, inspected or copied; and
  - the nature and extent of the harm outweigh the desirability of adducing the evidence or producing, inspecting or copying the document or part (s102BE(1)).
- For the purposes of section 102BE(1), harm may include, but is not limited to:
  - physical harm
  - emotional harm, psychological harm or oppression
  - mental distress or stress
  - harm that affects your client’s ability to care for a child, and
  - financial harm (s102BE(2)).
- The best interests of the child must be the paramount consideration (s102BE(3)).
- When considering making a direction about a protected confidence the court must have regard to the following:
  - the probative value and importance of the evidence in question and the availability of other evidence concerning the matter(s) to which the evidence in question relates (s102BE(4)(a));
  - the likely effect of adducing the evidence, or producing, inspecting or copying the document or part, including the likelihood of harm, and the nature and extent of harm, which would or might be caused to the protected confider; or to a child to which the proceedings relate (s102BE(4)(b)).
  - the means available to the court to limit the harm or extent of the harm likely to be caused if the evidence is adduced or the document or part produced, inspected or copied (s102BE(4)(c)).
  - whether the substance of the evidence, or of the document or part, has already been disclosed by the protected confider or any other person (s102BE(4)(d));
  - the public interest in preserving the confidentiality of protected confidences (s102BE(4)(e));
  - whether the protected confider opposes the disclosure of the protected confidence or any part of it (s102BE(4)(f));
  - whether a lawyer is representing the protected confider in the proceedings (s102BE(4)(g));
  - if the protected confider is a child aged under 18--whether any person with whom the child lives or any person who has or is seeking to have parental responsibility for the child or the ICL (if appointed) oppose the disclosure of the protected confidence or any part of it (s102BE(4)(h)).
Section 102BF sets out a court cannot stop sensitive information from being shared if the adult who the information relates to agrees to it.

Process for applying to protect confidential or sensitive information and/or medical records

There are different ways to apply to protect confidential sensitive information, depending on when you apply and what kind of court order you want.

Seek orders protecting sensitive information

You can seek orders to protect sensitive information in your initiating application or response to initiating application or by way of filing a Form 2 Application during proceedings. You can also file a Notice of Objection to a subpoena issued by another party during proceedings.

The producing party (e.g. a psychologist) could also file a Notice of Objection notifying the court that the documents contain protected confidences. If this occurs, you should check with the protected confider (i.e. the party or child) if they also object to the information being disclosed. If the protected confider does not object to the information being disclosed, the court can make directions for its disclosure, despite an objection from the producing party (s102BF).

If you are applying for a protected confidence order you will need to tell the court about the harm that could happen to your client (or the child) if the information is shared. This might include:

physical harm
emotional harm, psychological harm or oppression
mental distress or stress
harm that affects your client’s ability to care for a child, and
financial harm (s102BE(2)).

You should also tell the court why you think the harm is greater than the need to share the information. This includes telling the court:

if the information is really needed to prove something important that your client and the other party disagree about
if the information has already been shared with the other person, or
if there is other evidence that doesn’t include sensitive information that can be used instead (s102BE(4)).

You will need to provide evidence about the harm. This could be a letter from the protected confider or a letter from a professional.

If there is no direct evidence about harm, the court will likely have to rely on “inferences drawn from the circumstances and nature of the service” (Wood & Holmes (No 3) [2025] FedCFamC1F 463, per Gill J at [40]). In this first instance decision, Gill J commented (at [40]):

“It may readily be considered that, where a party has engaged in confidential counselling to deal with the difficult circumstances that have brought about the litigation, the revelation of the content of those communications, and the provision of such to their adversary is likely a source of distress.”

If the matter proceeds to a subpoena objection hearing, the judicial officer may inspect the material themselves to apply the section 102BE(1) test of whether the likely harm from causing or permitting production outweighs the desirability of production.

The court can then make a wide range of orders about inspection and release of the material, under section 102BE(4)(c) including:

whether the material will be released to the parties (access could be limited to lawyers)
any restrictions on the release of material to the parties which might limit the potential harm to the objecting party or confider (e.g. inspection could be only in the presence of lawyers, parties could be restricted from taking copies, lawyers could be restricted from providing copies to parties).

Inspection of medical records

If your client’s medical records have been subpoenaed and given to the court, you can ask the court for permission to inspect the documents before deciding if you want to stop others from seeing or copying the records (r 257(3)). The party seeking to inspect the documents early must give written notice of their request to inspect to the Registry before the production date. After you have inspected the records and you decide you do not want others to see them, you can file a Notice of Objection to Subpoena within 7 days after the production date (r257(4)).

Redacting confidential information from documents produced

Under rule 253(1)(b), parties may object to the inspection of any material subpoenaed on the basis that they would like to inspect it first and redact identifying information or information that may tend to reveal their residential address for safety reasons.

Seeking the production of documents against an objection of on the basis of protected confidence

If you are representing a party seeking production of documents where there is an objection on the basis of them containing protected confidences, you will need to demonstrate the probative value of the documents and whether the evidence will otherwise be unavailable.

It may be difficult for the court to assess the probative value of the material if its contents are unknown. The court may then consider the material’s potential in relation to an important issue in the proceedings (see e.g. Wood & Holmes (No 3) [2025] FedCFamC1F 463 at [42]-[45]).

Practical guide to subpoenas

Summary of steps

Step 1 – file subpoena
Step 2 – once the subpoena is filed, you will be notified of the production date
Step 3 – serve the subpoena
Step 4 – file a Notice of Request to Inspect (NORTI)
Step 5 – check the portal and once subpoena material has been received by the court, download or book an appointment to inspect.

Filing and production procedure

When a subpoena is filed, staff will inspect the file to see if permission is granted (if no permission is granted, the subpoena is referred to the presiding Judicial Officer). The registry staff will expect that you will refer in your covering letter to whether you have leave to issue subpoena. If you do not, the subpoena may be referred to the Magistrate, resulting in delays in the subpoena being processed.

A date of production for subpoena documents is set. The date will be 21 days from the date the Registry processes the subpoena

The subpoena will need to be served unless the court directs otherwise:

at least 10 days prior to date of production if it is a subpoena for production (r 249(5)(a))
at least 7 days before the day attendance is required if it is a subpoena to give evidence (r 249(5)(b))
at least 10 days prior to date of production if it is a subpoena for production and to give evidence (r 249(5)(c)).

If service is not complied with, the date of production can be shifted to a later date, meaning a NORTI can only be filed later as well, so it is very important to comply with the service requirement.

At date of production, the party who issued the subpoena will be able to file a NORTI. NORTIs will be considered 3 clear business days after the date of production. You need to file 1 NORTI per subpoena.

Note: the court does not permit anyone to file a NORTI early, even in urgent situations.

If there are no objections and the NORTI is correctly filled out, documents will be released for inspection and/or copying. Parties will be notified on the eCourts Portal of WA.

Inspection of subpoenaed material by lawyers and parties

The issuing party will need to keep track of whether the subpoena has been complied with (can be checked through the eCourts Portal of WA).

If there are no objections, lawyers and parties can inspect and copy the documents produced (other than a child welfare record, criminal record, medical record or police record) (r 256).

Documents that can be viewed and copied will be available for viewing and download by lawyers and parties online through the eCourts Portal of WA.

Parties and lawyers will need to make an appointment at the Subpoena Office at the Court Registry to inspect documents that can be viewed only and not copied.

Objecting to a subpoena

This is governed by rule 253 and rule 257 and done by completing Part F of the Subpoena (Form 14). It is the same process regardless of whether the objection is by the person subpoenaed or by a party to the proceedings who has been served with the subpoena.

The person objecting to the subpoena may seek that the subpoena be set aside in whole or in part or seek any other relief in relation to the subpoena (r 253(1)(b)).

The Part F needs to be filed by the production date (in practice the court appears to be willing to accept objections right up to when NORTI is considered).

If a party objects to a subpoena, all parties need to be notified (served a copy of the Part F which has been filed with the court).

If an objection is lodged it will be referred to a Magistrate, who will list the matter for determination (r 253(3)).

See above regarding prior inspection of medical records by a party to determine if they want to object to inspection of them.

Under rule 253(1)(b), parties may object to the inspection of any material subpoenaed on the basis that they would like to inspect it first and redact identifying information or information that may tend to reveal their residential address for safety reasons.

Some reasons for objecting to a subpoena include:

the request for information is too broad or asks for too much
the information is not related to the issues in the case, or
the information is privileged.

Service of subpoenas

Rule 249(1) provides that the issuing party must serve the person named in the subpoena with:

the subpoena, and
a brochure containing information about subpoenas.

The issuing party must serve a copy of the subpoena on:

each party, and
each interested person in relation to the subpoena, and
the ICL (r 249(3)).

A subpoena for the production of documents can be served by:

ordinary service, or
a manner of service agreed between the issuing party and the named person (r 249(2)(a)).

A subpoena to attend court to give evidence or a subpoena requesting both production of documents and to attend court to give evidence must be served by hand (r 249(2)(b)).

Note: there are special rules regarding service of subpoena on prisoners. ‘Special service’ on the person in charge of the prison is required (r 128(1)). At the time of service of the subpoena the prisoner must be informed, in writing, about the requirement to attend by electronic communication under rule 82 or rule 194, whichever applies (r 128(2)). Rule 82 provides a party who is in prison must attend at a hearing by electronic communication.

Restrictions on using subpoenaed documents

Parties and lawyers must only use documents obtained by subpoena for the purposes of the case and must not disclose the contents or give a copy of the document to any other person without the court’s permission.

Seeking a document or file held by another court

If a party seeks the production of a document from another court, the party must provide written notice to the registry manager setting out:

the name and address of the court with the document
a description of the document
the date on which the document is to be produced
the reason for seeking production of it (r 259(1)).

On receiving the notice, the registry manager may ask the other court to send the document to the filing registry by a specified date (r 259(2)). A party may apply for permission to inspect and copy the document produced to the court (r 259(3)).

More information

Reviewed: 20 August 2026

Subpoenas

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