Responding to subpoenas
Use this procedure when responding to subpoenas for open cases and cases that have been closed for less than three months.
Document ID number 1225, version 3, 8 December 2017.
This procedure applies to open cases or cases that have been closed for less than three months.
For cases that have been closed for three or more months, forward the subpoena to the Child Protection Information Release Team at 50 Lonsdale Street, Melbourne or email a scanned copy to firstname.lastname@example.org
For additional information see Responding to subpoenas - advice.
Case practitioner tasks
- Accept service of the subpoena.
Service of a subpoena cannot be refused by the department unless the subpoena was not issued by a court, and/or the subpoena was issued without 'conduct money' (the amount of conduct money required to be paid differs in each court or tribunal. For County Court, Children's Court, Magistrates and Supreme Courts, the amount required is $10. For Federal Circuit Court and Family Court, the amount is $25. For any interstate court, the amount is $55).
Subpoenas can be served by fax (however, conduct money and the issued subpoena would need to follow in the post).
A subpoena that requires a specific child protection practitioner to give evidence must be served on the practitioner personally who is required to give evidence unless the practitioner agrees someone else can accept service on their behalf.
Subpoenas must have a court stamp and must indicate which party requested that it be issued.
If you are unsure of the validity of a subpoena you should seek legal advice immediately.
- Read the subpoena carefully to determine exactly what is required.
- Contact the local officer responsible for dealing with revenue for assistance with lodging conduct money and issuing a receipt.
- Photocopy and register the subpoena in TRIM. Record the amount of conduct money provided and the receipt number. Contact the local records manager for assistance with TRIM registration.
- Establish which court has issued the subpoena as this will determine how to respond. Refer to the specific court website for further information. Also see Family Court & Federal Circuit Court (pdf, 397.44 KB) .
- Attach a covering letter, addressed to the court, to the redacted subpoenaed documents. Contact the Child Protection Information Release Team on 9096 7011 or email@example.com for a template.
- Make a note on CRIS of the time and date the department received the subpoena and conduct money.
This may be important if it becomes necessary to seek an extension of time from the court in order to comply with the subpoena.
- Determine whether there are grounds for objection to the subpoena. Objections are complex and rare. See Responding to subpoenas – advice for further information. Grounds for objecting include:
- width – lack of clarity regarding the request
- oppression – the request is overly burdensome (generally where a file is more than 500 pages you should consider contacting the person or firm requesting the subpoena and negotiate the scope of material sought)
- public interest immunity
- legal professional privilege.
- If the department cannot meet the subpoena deadline (even if it is made first priority), contact the court that issued the subpoena to seek an extension. Propose an alternative and realistic date to the court.
In some cases, the court will direct the department to contact the party who initiated the subpoena process, requiring the department to explain personally why it cannot meet the deadline.
- In instances where the schedule of the subpoena calls for all documentation, the child protection practitioner responsible for producing the documents, should contact the issuing party to negotiate limiting the scope of the schedule.
Producing only key documents from CRIS will assist the department to meet the production date whilst still providing the parties with sufficient information. Lawyers generally oblige in this type of request. The recommended schedule is as follows:
Intake & closure documents
First visit case notes
Responsible for harm assessments and substantiation decisions
Case planning meeting minutes
Section 38 consultations
Any external assessment report the department has commissioned
- Print the CRIS case notes, from the categories of documents subpoenaed, that relate to each child named on the subpoena.
- Read the file thoroughly and make the necessary redactions as per legislative exemptions.
- If the entire file has been subpoenaed, produce a copy of the original documents and ensure they are securely attached in a file. Do not send original documents or loose sheets of paper to the court. Ensure materials from both the CRIS and paper file are included.
- Include a detailed covering letter addressed to the court registrar. This letter needs to:
- explain the handling of the documentation, and list any exemptions which have been applied.
- state "When the Court no longer requires the documents, please ensure that they are disposed of in a secure manner by shredding or placing in a confidential documents bin. We no longer require the documents to be returned to the department."
- Keep the original copy of the file, as you will need that material to prepare for court. The court should then destroy their copy of the record when it is no longer required.
- Place any documents where production would otherwise be prohibited by law, for example reporter details, in a sealed envelope marked with a request that these documents not be released except at the direction of the Judge or Magistrate and the reasons why, including the relevant legislative provisions. A precedent cover sheet can be obtained from the Child Protection Information Release Team at 50 Lonsdale Street, Melbourne. Attach this information to the front of the file.
Examples of information that should be dealt with in this manner include:
- details that could identify a reporter where the reporter has not consented to such disclosure (ss. 41 and 191 CYFA)
- documents prepared for the purpose of obtaining or providing legal advice, including any emails between child protection practitioners and Legal Services (as they attract legal professional privilege)
- court reports prepared for the children’s court where they have been subpoenaed by parties who were/are not parties to the children's court proceedings (s. 552 CYFA)
- conciliation conference evidence, should be removed under s. 226 CYFA
- information which needs to be protected for serious safety reasons (for example, the new address of a victim of domestic violence). This information is removed as a departmental policy decision only and does not have any backing in legislation, so must be used sparingly.
- In criminal proceedings only, any communications between a victim of sexual abuse and any Doctor or Counsellor must be removed under s.32C Evidence (Miscellaneous Provisions) Act 1958 (unless the court has granted leave for this information to be released.
See Responding to subpoenas – advice for additional information.
- Ensure a copy of the subpoena is placed within the copied file.
- Record the response to the subpoena in TRIM and CRIS.
- Transport the file to the registrar or appropriate court official. It is preferable for the file to be delivered in person, couriered or delivered by registered mail so a record of receipt can be obtained. Attach the receipt to the file.
- Never give the file to the person who initiated the subpoena even if they request it.
- If the subpoena requests the personal appearance of an individual (for example, the child protection practitioner), it may be sufficient for production of the records only (that is, direct evidence from a staff member may not be necessary). Practitioners can make enquiries of the person or law firm that initiated the subpoena to clarify this and if necessary contact the department's Legal Services.
- If a file has been sent to court and information about the reporter or legally privileged information has not been removed from the file, contact your solicitor or divisional legal officer immediately to arrange an application to the appropriate court. Once a file is delivered to court, pursuant to a subpoena, it should not be interfered with, except by order of a Judge or Magistrate.
- If the subpoena is requesting the personal appearance of a senior member of staff other than the child protection practitioner (such as the Secretary) contact the department's Legal Services.
For cases that have been closed for three months:
- Forward the subpoena to the Child Protection Information Release Team at 50 Lonsdale Street, Melbourne or email a scanned copy to firstname.lastname@example.org.
- Provide ongoing supervision and consultation.
Team manager tasks
- Provide ongoing supervision and consultation.