See procedure Witness summons for tasks that must be undertaken.
Practitioners will generally be required to issue a witness summons (also known as a subpoena) for non-departmental witnesses to appear in court for a contested matter or where documents relevant to contested proceedings are held by another person or organisation. See Contested court hearings - advice.
A witness summons may require:
- a witness to attend to give evidence (Form 41), or
- a witness to attend to give evidence and produce files or other documents (Form 41), or
- production of files or documents to the Court (Form 41A).
A relevant witness is one that is:
- involved at the department's request
- recently or currently involved in relation to the current application before the Court, and
- relevant to the issues at hand.
Practitioners should discuss with the divisional solicitor the relevant witnesses to be called. All relevant witnesses should be subpoenaed, not just those who support the department's position. If the practitioner has any queries about what witnesses to call, the practitioner should consult with the Child Protection Litigation Office (CPLO).
Practitioners should provide potential witnesses with as much notice as possible regarding the need for them to attend court to give evidence. For both interim and final contests, it is best to check their availability at the time the contest dates are being booked in.
Many witnesses will be anxious about giving evidence and will not know what to expect. Practitioners should, as far as is reasonable, provide witnesses with information regarding the contest process, let them know what is expected of them in terms of attendance, what to bring to Court and what type of evidence may be asked of them. In some instances, the department's barrister may be able to spend some time with witnesses taking them through the evidence to be called.
If the witness is required to attend Court, practitioners should also advise witnesses that they are eligible to request the payment of conduct money to assist with reasonable travel expenses incurred by the witness. Witnesses are entitled to receive conduct money to facilitate compliance with the summons to attend court. For example, a witness may request conduct money up to the value of a public transport return ticket.
It is not necessary to provide conduct money if a witness will not incur any expense in complying with the summons. For example, if the witness is attending court virtually to provide verbal evidence.