Can I refuse to hand over documents requested in a subpoena?
Often during family law proceedings, a person may be sent a subpoena and asked to produce documents for the court. There are several reasons why a person can object to producing those documents. Let’s look at what those reasons are and why you should be careful how you respond as your decision may not always go in your favour.
In a recent case, a woman issued a subpoena for documents to her ex-husband’s new partner, and her ex-husband’s accountant.
Both the new partner and the accountant objected to producing the documents, as they were “oppressive, or an abuse of process, or a fishing expedition”.
In this case, the ex-husband had filed for bankruptcy in July 2020. However, a year prior to filing for bankruptcy, his new partner had purchased a property for $2.38 million. He lived in the property with his new partner.
The ex-wife’s position was that the husband had given his new partner financial help to buy the property and that the new partner would not have been able to support the mortgage repayments on a $1 million dollar mortgage.
The ex-wife was relying on a number of factors including:
- The ex-husband’s financial statement, recorded that his new partner’s weekly income was $1000 or $52,000 a year. However, documents produced by the lender via subpoena revealed that the new partner’s yearly income was $230,000 with savings of $1.6 million; and the husband’s accountant had certified the new partner’s income.
- Further evidence obtained by the ex-wife of the new partner’s other income sources were a property settlement from her former partner. She had received the sum of $240,000 (of this $100,000 was set aside for her children’s education) and annual child support of approximately $24,000.
The judge found that the documents sought by the ex-wife in the subpoena to the new partner satisfied the “apparent relevance” test, as they addressed the new partner’s acquisition of the property and would “shed light” on how she funded that property. If it was found she could not meet the mortgage repayments, the ex-wife should be able to find out who those funds came from.
The judge therefore ordered the new partner to comply with the subpoena from the ex-wife.
The wife was also granted leave to issue a further more narrow subponea to the husband’s accountant, as he considered the scope of the original subpoena to be too wide, given that the accountant had been the husband’s accountant for a long period of time.
The judge said that if the subpoena was expressed in the proposed narrow terms by the wife, it too would meet the “apparent relevance” test.
The judge also dismissed the ex-husband’s accountant’s application that the costs of complying with the original subpoena be met by the wife.
The case shows why it’s important to ensure that good evidence is put before the court to explain why information is needed on the issue – in this case, the acquisition of the property by the new partner – and that the scope of the subpoena must be specific.
If you need advice on any aspect of family law, get in touch with our office today. Call Michael Lynch Family Lawyers on: (07) 3221 4300 or email us at: [email protected]
