What happens if I am sick and unable to attend my court proceedings?

Illness, accidents and other such unfortunate events are part and parcel aspects of life that derail the best laid plans. It is not an uncommon occurrence for incidents of poor health to coincide with high-stress situations such as court proceedings. The question is what should you do if you are to unwell to attend court, when court attendance is mandatory?

The clear answer is to obtain a medical certificate, setting out why you are unable to attend the court proceedings and provide that to the court & to the other parties.

Unfortunately, it is not always that clear cut. Novikov & Novikov is recent family law case that was heard on appeal by the Federal Circuit And Family Court of Australia (“FCFCOA”) in early April of this year in which the parties argued whether the husband’s medical certificate was a reasonable excuse for failing to attend proceedings and overturn the final orders made in his absence.

Novikov & Novikov

Novikov & Novikov was a property and parenting matter in the FCFCOA. The matter went to court for Final Hearing on June 2023 and all parties were required to attend. The court made orders on a final basis in the absence of the husband as he failed to attend the final hearing and had not instructed his legal representatives on what to do in his absence. The husband failed to attend the proceedings as he was suffering from chronic groin pain and a fever, however this was a historic & repeating medical condition that he had suffered from 2016 and he did not produce a medical certificate setting out this chronic condition was the reason he had been unable to attend court in June until the matter went to court on appeal.

Under the June 2023 Orders (“the June orders”), the husband was to pay the wife $150,000 for child support in arrears as well as paying for the legal costs of the wife [$24,496] and of the Child Support Registrar [$6,061.69]

The husband then appealed the decision as he claimed he had a reasonable excuse for failing to attend the hearing, namely that he was unwell and had a medical certificate to that effect. When the matter was heard on appeal the court set aside the June orders as he had a reasonable excuse for failing to attend.

The wife then appealed the October 2023 judgement, arguing that the judge had made a significant mistake by relying upon the husband’s medical certificate, which only stated that he was unfit for work and did not specify why he was unable to attend court, that she had been disadvantaged as she had not been provided with a copy of the medical certificate before the matter went to court in October and that the medical certificate was insufficient evidence to have justified the court setting aside the June orders.

The wife’s appeal was heard by the court on 11 April 2024 and was found in the wife’s favour, reinstating the June orders. The court found in the wife’s favour for the following reasons:

·       The medical certificate did not set out why the husband was unable to attend the hearing, just that he was unfit to work

·       The hearing took place over Microsoft Teams and the husband could have attended from his bed or instructed his legal representatives.

·       The husband’s chronic groin pain and fever had not prevented him from attending Court previously or instructing his lawyers

As such the court found that the decision to set aside the October 2023 orders which heavily relied on the medical certificate to set aside.

In addition to the June orders being reinstated, the husband was ordered to pay the wife’s legal costs [$10,000] and the Child Support Registrar’s legal costs [$2,778]

What do I need to know?

The most important thing to take from this is that court attendance is mandatory. If you fail to attend then orders may be made in your absence or you could be held in contempt of court, in which case the court can make orders that you attend court or issue a warrant for your arrest.

What do I need to do?

If you are unwell and unable to attend court, you need to obtain a medical certificate setting out why you are unable to attend court as soon as possible. Once you have the medical certificate either provide it to your legal representative, who will notify the court and the other parties or, if you are self-represented, send it directly to the other parties and the court.

Voice Lawyers: Your Guide in Family Law Matters

As lawyers working in family law, we have noticed an increase in clients seeking advice, clarification and understanding about the use of social services and their parenting orders. if you need guidance, please don’t hesitate to contact us for a consultation.

This article is general in nature and is not legal advice. If you need help dealing with a parenting dispute or require assistance with a family law matter, Voice Lawyers hear you. 

We help people navigate the complexities of family law with confident, practical advice. You can contact us at voice@voicelawyers.com or call 02 9261 1954 to book a consultation to speak with one of our lawyers.

By Enda Byrne