News & Events

In a recent case, a paternal grandmother asked the Family Court to order that she be permitted to spend time with her grandchildren.

The mother of the children opposed the application, alleging that it was a backdoor attempt to increase the amount of time the father could spend with the children. She also alleged that the grandmother was trying to undermine the mother’s parenting, and that, if the grandmother was granted the order, it would cause the mother to suffer such anxiety that her parenting capacity would be badly affected.

The judge disagreed, saying he was satisfied that it was in the children’s best interests that they have a special relationship with their grandmother different to that with their parents. That the children spent limited time with their father was not a reason, the judge said, to place limits or constraints on their relationship with the grandmother.

The trust that usually exists in family relationships often leads to arrangements between family members, even major financial ones, being made on an informal basis. This can cause problems when disagreements arise or one family member dies and the arrangement has to be proved in court.

An unfortunately clear message from the many recent court cases arising from disputed informal family arrangements is that the people involved are among those least likely to seek legal assistance to put important understandings in writing until it is too late.

In one case, a young farmer thought he had an arrangement with his father that he would be left a 10-acre farming block of land on the father’s death. The father encouraged that belief by comments he made to others. The son relied on his assumption or expectation of inheriting the farm and made a major life and career choice to stay in the country as a farmer and continue to work the block of land. However, after the father’s death, it was discovered that his will did not reflect the arrangement he had made with his son. The farm was not left to him and he had to go to court to pursue his claim that he had suffered detriment by reason of the expectation not being fulfilled in the father’s will, because his career choices could not be redressed.

In another case, a young man and his wife-to-be were looking for a house to buy. This would be their marital home. The young man’s father bought a house and said to them: “I’ve bought you a house. This is your house.” The young couple moved in, paid all the outgoings and $200 per week to the father. They also spent significant money making improvements to the property in the expectation that their home was later to become legally theirs. However, the father reneged on the deal, later asserting that the couple had merely been renting the house. The young couple had to go to court to try to enforce the promise made by the father.

Other cases have involved relationships between in-laws, estranged spouses, siblings, aunts and uncles, and in one very high profile case, a deceased’s one-time mistress.

Arrangements put in writing with proper legal advice can avoid disputes arising in the future. Consult your solicitor for advice.

While employers and employees may agree it is suitable for employers to carry out random drug and alcohol testing, it is a sensitive workplace issue.

Employers want to meet their obligation to ensure, as far as reasonably practicable, the health and safety of workers by screening out employees who are impaired by drug use. Employees are concerned with any unjustified intrusions into their private lives.

In a recent case, a dispute between an employer and unions about the method of testing for a new drug-and-alcohol policy went to Fair Work Australia for arbitration. The unions had objected to urine testing for drug use. The employer lost its case that urine testing was a just and reasonable method, in view of the availability of saliva testing.

Fair Work Australia found the urine testing unjust and unreasonable, because oral testing was available, and was able to identify whether there had been recent consumption of drugs. FWA focused on the capacities of the different forms of testing to detect cannabis, the most widely used drug in Australian workplaces.

Urine testing can yield a positive result even when consumption of drugs occurred several days earlier, creating a risk of employees being made to account for drugs taken outside of the employment context.