Getting evidence

Often when people come tome and tell me about their domestic dramas, they then despair when they say: “No one will believe me. I don’t have anyone who really knows what happened.”

I then go through whether there are any witnesses or any documents or electronic records that might help.

It is amazing as to the kinds of records that might exist. Often it may be impossible to get these through by asking or through Freedom of Information, but they may be available by use of a subpoena. Of course a subpoena (which is like a form of order from the court) can only be issued when proceedings have started, and there may be restrictions on when or how often a subpoena can issue.

The types of records that can exist include:
-doctor’s records
-records of child welfare authorities, such as the Department of Child Safety
-police records- such as criminal histories, details about crime reports and domestic violence histories
-bank accounts, and sometimes original cheques and withdrawal records from banks
-gambling records from casinos. There are few things more shocking as a practitioner to receive a copy of a subpoena from the other lawyer about your client’s gambling history, when your client didn’t bother to tell you about any gambling.
-HR files- these may be relevant as to workhours or if complaints have been made because the person was abusive at work.

Then there are the less thought of records:
– sometimes one party, but not the other, can ask for records, eg under Freedom of Information from Centrelink. Sometimes an opponent can be forced to make that application, such as when they say the parties lived together- at the same time that person was getting Centrelink payments as a single parent.
-electronic records that records where a person was at certain times. In one case I had many years ago, my client was a goner except that I had issued a subpoena after she told me that her ex worked weird and wonderful hours (at the same time that he said that he was caring for the children) and had an electronic key for work. The records produced put the lie to his suggestion that he was caring for the children at those times. They saved her bacon.

Because they can be such a powerful weapon, there are restrictions on the use of subpoenas, such as ensuring that whatever is asked for is relevant, that the subpoena is not oppressive and that it is not used for an improper purpose, eg to harass a witness.

Having said that, the use of this information can often mean the difference between success and failure.