What if Justice Ipp was a Family Lawyer?

by Peter Magee on May 30, 2016

Daniel Rod

Justice Ipp was a former New South Wales Supreme Court Judge, who pioneered reforms with respect to civil liability in NSW with the release of the “Review of the law of negligence”, known as the Ipp Report (“the report”).

This report later formed the basis of what is now known in New South Wales as the Civil Liability Act. The effect of the report and the subsequent legislation was a statutory cap on compensation that a plaintiff may seek against a tortfeasor, the codification of common law and reforms in the process for seeking relief.

Moreover, by seeking a statutory cap on the limits of financial relief that may be awarded to a plaintiff:

  1. Incentives were created for parties to settle; and
  2. Increasingly, there was a move towards private settlement negotiations between parties as the costs of litigation outweighed the potential gains for plaintiffs.

Family Law is in desperate need of such reforms and through this article, I posit: “What if Justice Ipp was a Family Lawyer?”, or put simply, “Can Family Law benefit through serious reforms designed to minimise costs, reduce the adverse impact on participants and deliver better outcomes that are just, quick and cheap?”.

It is my belief that the Family Court of Australia and the Federal Circuit Court of Australia are inefficient, underfunded and currently overwhelmed by the increasing demand arising from poor public policy.

Delays in the Sydney Registry – and by no means is this a reflection of the staff, but a reflection of the lack of resources at their disposal – mean that it is 3 or more months before an Application filed will have its first return date unless it is urgent.

Matters also take on average 2 years before reaching Final Hearing, placing parties under considerable financial and emotional pressure.

Pre-action procedures in this jurisdiction, while mandatory, are not enforced by judicial officers and are ineffective at achieving the purposes for which they were implemented.

The s60i certificate, a mandatory step, intended to facilitate the resolution of disputes is ineffective as parties often do not take such steps seriously and often this step serves rather as a delay rather than a serious resolution of a dispute.

There is a genuine need for the rewriting of both the Family Law Rules and the Federal Circuit Court rules so that they are clear and easy for practitioners to understand.

Furthermore, there is a need for these rules to be enforced by judicial officers so that the interests of the parties, the legal system and other litigants are better served.

One area in great need for reform is that of the Financial Agreement. Presently, there is no incentive for parties to pursue drafting Financial Agreements on account of the fact that for practitioners the professional indemnity risk is far too great and accordingly, the costs to parties will invariably be greater in formalising that agreement. Furthermore, the current trends in the Courts of setting aside Financial Agreements provides a lack of certainty to the parties.

The Australian Family Law System is in dire need of its own Ipp Report. Such a report will find that the system needs to directly encourage the private resolution of disputes utilising mechanisms such as private arbitration, mediation that involves the presence of solicitors or other such alternative dispute resolution mechanisms that provide incentives for parties to proceed privately rather than through the judicial system.

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