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Resolving family disputes: The true cost of doggedness

01 February 21 - In the News

Authors: Holding Redlich partner Kylie Wilson and special counsel Nicole Treacey
Publication: Queensland Country Life
Publisher: Fairfax Media

A recent sibling dispute taken to the Queensland District Court provides another timely reminder that while you cannot choose your family, you can choose how you deal with them.

The case in King & Anor v Fister & Anor [2020] QDC 333 involved an arrangement that was entered into by two siblings. The arrangement broadly provided that one sibling would buy a property and the other would live in it. The terms became somewhat clouded by one sibling carrying out improvements on the property. A declaration was sought for a constructive trust over the property for the works that he had done. There was also other conduct by the parties that made the arrangement ‘fluid’ over a period of time.

This resulted in what was presumably an expensive exercise for both parties, factoring in legal costs.

The outcome was relatively unremarkable, with one party succeeding over the other. What is of more interest though is how this matter proceeded to a trial. Whilst this dispute did seek some declaratory orders, the sum of money involved was $64,032.90.

District Court Judge Fantin noted that the “… complexity of those legal issues was utterly disproportionate to the very modest sums in dispute”.

Her Honour also made the point that “the parties did not participate in a mediation, either consensually or court-ordered. In a case crying out for a financial settlement, it would have been sensible for them to do so”.

It may seem hard to imagine a sibling relationship so fractured that the parties would prefer to go to court than sit in a room and try to resolve a dispute over such a “modest” amount – but these situations do happen.

Disputes with a common theme are often seen in rural and family business settings, particularly where one child works on the property or in the business and may not have received adequate payment for their efforts.

Often with families what might seem to be a healthy sibling rivalry during childhood can manifest in something much more toxic in adulthood. These complexities are then usually compounded by incoming spouses, and of course, money.

Documenting arrangements and managing these personal issues once a dispute arises can lead to more favourable outcomes. It may be the case that an independent person is needed to facilitate those discussions. But this is likely a worthy investment if it means a dispute can be resolved.

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