Medical certificate deemed inadequate

Procedure – Pro-forma medical certificate inadequate for the purpose of explaining non-attendance at electronic court event – Court erroneously relied on certificate to set aside orders made in the absence of the husband.

In Novikov [2024] FedCFamC1A 56 (11 April 2024), McClelland DCJ, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard a wife’s appeal from a decision setting aside orders which related to the husband’s non-appearance in those proceedings.

The husband failed to appear at the hearing on 29 June 2023 and his application was dismissed.

The husband successfully had the June 2023 orders set aside on the basis that his ill health was a reasonable excuse for his non-attendance ([2]). The wife appealed.

McClelland DCJ said (from [20]):

“It is apparent from [the reasons] … that the decision of the primary judge to set aside the earlier orders was his satisfaction that … the applicant husband was ‘sick’, such that he was unable to participate…

( … )


[26] The question as to whether the first respondent’s ill health was such that he was unable to participate … needed to be considered in the context where the proceedings were to be conducted remotely by way of Microsoft Teams…

( … )

[32] The relevant principles as to what constitutes an adequate medical certificate for the purpose of either adjourning proceedings or explaining non-attendance were helpfully summarised by Pepper J in UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107 …

( … )

[33] … I am of the view that, with the greatest respect to the primary judge, the medical certificate relied upon … has no probative value. This is because the certificate did not address the critical question. That is, the nexus between what was described in the medical certificate … and how that pain and/or fever was of such a nature that it precluded him from either participating … by electronic means and/or instructing his legal advisor … The question as to the first respondent’s fitness for work was irrelevant…”

McClelland DCJ allowed the appeal and re-exercised the discretion to dismiss the husband’s application. The husband was ordered to pay the wife’s costs of $10,000 and the Child Support Registrar’s costs of $2778.

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