· 2026-02-12T21:23:20+0000 · 861 posts

When pulling a sicky will cost you $6,555 and your Appeal!

When “Pulling a Sickie” Backfires: $6,555 Costs — and Your Appeal on the Line

In Sum & Lam (No 2) [2026] FedCFamC1A 16, the Federal Circuit and Family Court of Australia (Division 1, Appellate Jurisdiction) refused a self-represented appellant’s second attempt to adjourn an appeal hearing—after medical letters claimed she lacked capacity, but her conduct in the appeal showed the opposite. The day ended with the appeal briefly adjourned only for procedural fairness, a clear warning that the appeal may proceed without her next time, and a fixed “costs thrown away” order of $6,555 payable within 28 days.

Facts:

The appellant appealed property orders made under Pt VIII of the Family Law Act 1975 (Cth) requiring her to keep the former matrimonial home but pay the respondent $797,422 within 90 days, failing which the home would be sold and proceeds distributed ([1]–[3]). She filed a second adjournment application seeking to push the appeal out (ultimately floated as six months) relying on illness and lack of representation ([5]–[10]). She tendered letters from health practitioners asserting she had no capacity to prepare, attend, or instruct lawyers ([15]–[18]). The Court found those opinions inconsistent with her demonstrated ability to prepare detailed appeal material and appear lucidly—until it became apparent she would lose ([19]–[26]). After being told the adjournment was refused, she did not return when the Court resumed, and the Court adjourned the appeal to avoid procedural unfairness but fixed $6,555 costs thrown away ([33]–[40]).

🧩 Facts and Issues

Key Facts

Appeal filed: Amended Notice of Appeal filed 13 January 2026 ([1], [21]).
Subject of appeal: property orders only; parenting/child support not challenged ([2]–[3]).
Adjournment history: first adjournment application dismissed in Sum & Lam [2025] FedCFamC1A 248 ([6]).
Second adjournment push: sought adjournment again; escalated to six months without evidentiary foundation ([7]–[10]).
Medical evidence: psychologist + two GPs asserted inability to participate or instruct lawyers ([15]–[18]).
Conduct undermining “incapacity”: she prepared multiple sophisticated documents and annexed hundreds of pages ([20]–[26]).
On-the-day collapse/non-appearance: after refusal signalled, she became nonresponsive; later failed to appear at 2:15pm ([33]–[35]).
Costs consequence: $6,555 fixed costs thrown away ordered due to adjournment ([40]).

Issues

Adjournment discretion: Did the appellant’s health and lack of representation justify another adjournment of the appeal hearing? ([9]–[12], [27]–[31])
Credibility and capacity: Were the medical opinions reliable when weighed against the appellant’s demonstrated litigation conduct? ([19]–[26], [31]–[32])
Proceeding in absence: After the appellant failed to return, should the Court hear the appeal without her? ([35]–[38])
Costs: Should the appellant pay the respondent’s wasted costs, and how much? ([40])

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)
Pt VIII (property proceedings underpinning the appealed orders) ([2]).
Part XIVB (publication restrictions noted in the judgment) (Note section).
s 114Q(2) (approval of pseudonym publication) (Note section).
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
r 10.14(b) (minor corrections to reasons) (Note section).
r 10.13 (variation to order) (Note section).

(On the adjournment itself, the Court applied the orthodox discretionary approach: the “critical question” was whether health actually precluded preparation/attendance, balanced against prejudice to the respondent—delay, costs, and deprivation of the fruits of litigation) ([12], [31]).

📚 Precedents Relied On

Sum & Lam [2025] FedCFamC1A 248 — the Court’s earlier decision dismissing the appellant’s first adjournment application; repeatedly used as the benchmark for what was previously argued/decided and for the “critical question” about incapacity ([6], [11]–[12], [27]–[28]).

Issue

Whether the appeal should be adjourned again on health/no-lawyer grounds—and what the consequences should be when the hearing day is derailed.

Rule

The Court focuses on the functional impact: does the health evidence actually show the party cannot prepare for or attend the appeal? ([12])
Medical opinions are tested against objective conduct in the litigation and whether the opinions appear formulaic or uninformed by the party’s demonstrated capacity ([19], [25]–[26], [32]).
The Court weighs prejudice to the respondent: delay, extra costs, and being denied the “fruits of litigation” ([31]).
If the hearing is wasted/adjourned, costs thrown away may be ordered and fixed ([40]).

Application

Why the “sickie” failed: the Court found the medical letters “definitive, formulaic” and inconsistent with the appellant’s demonstrated ability to litigate—drafting multiple substantial documents, annexing hundreds of pages, and presenting clear oral submissions ([19]–[26]).
The tell: the Court observed her presentation “demonstrably diminished” only when it became apparent her submissions were unlikely to succeed—undermining the claimed incapacity narrative ([26]).
No-lawyer excuse rejected: she’d previously accessed legal advice, had ample time since September 2025, and there were no financial constraints in context of the pool and prior senior counsel engagement ([27]–[29]).
Prejudice mattered: further delay would deprive the respondent of finality and impose further costs—so the adjournment application was refused ([31]).
Appeal at risk: after refusal, she failed to appear at 2:15pm; the respondent pressed to proceed without her, and the Court warned this may happen if she does not appear next time ([35], [38]).
$6,555 consequence: because the appeal was ultimately adjourned (for procedural fairness reasons after her non-appearance), the Court made the fixed costs order she had effectively agreed to in that scenario ([40]).

Conclusion / Orders

Adjournment application refused ([30]–[31]).
Appeal and extant applications adjourned to 27 March 2026 at 10:00am (AEDT) by Microsoft Teams ([36] + Orders).
Appellant to pay respondent’s fixed costs thrown away: $6,555 within 28 days ([40] + Orders).
Clear foreshadowing: if appellant fails to appear next time, respondent may seek to proceed in her absence ([38]).

✅ Practical Takeaways

If you claim illness prevents participation, your medical evidence must answer the functional “can’t attend/prepare” question—and it must match your actual conduct ([12], [25]–[26]).
“No lawyer” won’t carry weight where time, prior access to advice, and financial capacity indicate you could have engaged representation ([27]–[29]).
A failed adjournment attempt can still end in adjournment for fairness reasons—but you may pay hard, fixed costs for the wasted day ([36], [40]).
Non-appearance after losing the adjournment fight is dangerous: it sets up the argument that the appeal should proceed without you next time ([35], [38]).