There are three main types of Orders which centre Directors will need to deal with from time to time. They are Subpoenas, Location Orders and Interim and Final Parenting Orders. These situations arise from parties to proceedings in the Federal Circuit Court or Family Court of Australia who have children or grandchildren attending childcare centres.
This article will focus on Subpoenas and how they should be dealt with.
Subpoenas are filed in the Court when parties are seeking for a third party to disclose documents or provide evidence.
One of the main reasons why centres are served with a Subpoena is to obtain records of who is signing a child in and out, and when. Other reasons may include incident reports and to gain knowledge of the general wellbeing of a child or otherwise. This is because, in all matters before the Courts, the parties will inevitably need to support their case in the best interest of the child. This is why the development or otherwise of the child is extremely useful to the parties’ lawyers during proceedings. Likewise, where the Court has appointed an Independent Children’s Lawyer (“ICL”) to represent the interests of the child during the Court process, the ICL will file Subpoenas on the child’s Doctor, School and childcare to obtain credible and objective evidence on the child’s development and wellbeing.
Should I automatically give whatever is asked for in a Subpoena?
The short answer is “No”. You should first seek legal advice on the nature of what is being sort. This is because there may be possible reasons to object based on your childcare regulatory obligations. Moreover, you do not want to breach these obligations based on a poorly prepared Subpoena that may or may not be a fishing expedition.
When you are served with a Subpoena there will be a time in which you need to produce the documents by. Always check these dates and comply with them if you intend producing the documents. When producing the documents do not provide them to the law firm or party that served the Subpoena on you. The documents must be produced to the Court and the Subpoena will have an address where they can be sent. Do not assume that it will be in the Federal Circuit Court or Family Court or even the local Registry in the State you are in, because, if the matter has been filed in Melbourne and your centre is in Cairns, and you return the documents to Cairns, there is no guarantee they will get to Melbourne in time or at all.
A final thing to consider is that if your centre in owned by a company entity you will be served by post on your company’s registered address. Always ensure someone is checking the post at your registered address.
When you are served with a Subpoena there should also be a cheque for conduct money. This is to compensate you for the time to produce and send the documents. The amount will vary on the request itself. It is best to have your solicitor advise you on whether the amount of conduct money is sufficient to the request made.
Subpoena to Appear as a Witness
Not as common as a Subpoena to produce documents, is a Subpoena to appear as a witness in a trial. There is not a lot that you can object to in appearing, unless you are unwell or to compel you to appear would place undue hardship on the witness. You can however request to appear by telephone which would usually be granted. You will also need to be provided with conduct money.