In brief: Schools often find themselves entangled in family law proceedings when served with subpoenas requesting access to student records. 



The question of how the school should respond to requests can pose complex ethical, legal and practical dilemmas, particularly when the request is for sensitive information, counselling records or other information which may affect a student's wellbeing or therapeutic/teaching relationships.

When schools receive a subpoena in a family law proceeding, consideration should be given to legal obligations and the rights of the child, including in respect of confidentiality around counselling records. Except in limited circumstances, parties served with subpoenas are required to comply with their conditions, unless some exemption applies.

What is a subpoena?

Subpoenas are documents that are typically used in court proceedings to compel a person to produce documents to the court. In family law proceedings, a parent may issue a subpoena to a school to obtain documents as part of custody disputes. A school can be named in a subpoena, despite not being a party to the proceeding. 

In summary, a subpoena can require the addressee to either:

  • attend at court to give evidence

  • produce a document to the court 

  • produce documents to the court and attend at court to give evidence

Requests for material are often broad so as to capture all documents in the school's possession relating to the student and the parties to the proceeding. For example the terms may request "all documents in the school's possession or control related to Student A..". 

Such a request would include attendance records, school reports, behavioural reports, assessment results, counselling records and correspondence. 

Where such records may end up before Courts, Schools should keep this audience in mind when making notes. 

How should schools respond to a subpoena?

A subpoena will provide a date on which the named person is required to comply with the request. There are strict penalties imposed by the Federal Circuit and Family Court for non-compliance with a subpoena within the time frame. 
If the request is onerous, courts will accept a school's honest request for an extension of time to comply with the subpoena. An extension of time may be necessary, for example where the school requires further time to collate documents that are the subject of the request, or where a school might be closed over the holidays. 

In complying with obligations under the Privacy Act, the school should contemplate whether that information impacting third-party students or staff (for example names, mobile phone numbers, email addresses other identifying information) should be redacted and removed from the records. 

Objections to the subpoena 

Prior to producing the documents, schools should consider whether there are any grounds on which they should object to the production. Objecting is an expensive process. However, where disclosing documents may impact on a child's wellbeing (particularly where disclosure of documents may impact on therapeutic or trust relationships at school) schools might balance the cost against the child's right to make disclosures to counsellors. 

If a school is concerned about the scope of a subpoena, or the impact of disclosure on a child, then the school should seek advice. 

That advice might include, as a first step, working with the family to narrow the scope of the subpoena or objecting through filing a Notice of Objection and attending a hearing to present their case. Schools may advocate for alternative sources or methods to obtain the required information without disrupting this bond between the student and the counsellor. For instance, suggesting the information could be acquired by the court from sources that wouldn't compromise the therapeutic relationship becomes a worthy argument in protecting the student's wellbeing.

Despite the weight of these considerations, schools may face hurdles in objecting to subpoenas, including the potential financial strain and inconvenience of unexpectedly becoming involved in legal proceedings. 

Responding to family law subpoenas is increasingly part of the work of schools. It is costly and time consuming. Schools might consider implementing policies to address how they will respond to such matters and recover costs (which can be done through a further application to the court). Balancing legal compliance with responsibilities to students to address any concern a student or counsellor might have about disclosure will be important consideration for many schools in determining how to respond to a subpoena. 

Colin Biggers & Paisley's Education Team can advise on how schools should best respond to subpoenas to manage risk when the need arises. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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