31 May 2017
Delay Is Still A Factor In Child Abuse Cases
John Connellan v Martha Murphy  VSCA 116
The plaintiff (Marita Murphy), who was born on 19 July 1961, alleged that the defendant (John Connellan), who was born on 12 December 1954, sexually assaulted her, on two occasions, in ‘approximately 1967 or 1968’. The plaintiff alleged that these sexual assaults occurred whilst she was staying with Connellan’s family for a period of about 7 to 10 days.
The Defendant denied the allegations saying that the first time he had any contact with the plaintiff was in April or early May 2015 when she attended his place of business and left a newspaper article with handwriting on it.
In April 2016, the plaintiff commenced a proceeding in the County Court against the defendant claiming damages in respect of psychological injuries, which were said to have been a result of the two alleged sexual assaults.
For many years prior to 1 July 2015, the plaintiff’s alleged cause of action was statute-barred. However, on 1 July 2015, the Limitation of Actions Amendment (Child Abuse) Act 2015 (‘the 2015 Act’) commenced operation the effect of which is that in Victoria limitation periods no longer apply in child abuse claims and in relation to the plaintiff’s alleged cause of action.
However, s 27F of the 2015 Act provides that nothing in the amending legislation limits the Supreme Court’s inherent jurisdiction, and in the case of other courts, their implied or statutory jurisdiction; or any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction.
This means that a court still has the power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.
The defendant applied for a permanent stay of the proceedings on the grounds that the proceeding was an abuse of process and/or ‘because the defendant was irretrievably prejudiced by reason of the delay’. The primary judge dismissed the application on 22 February 2017.
In doing so, the Trial Judge considered the legislative history of s 27R and said:
o The purpose of the amending Act is clearly to provide greater access to justice for victims of historical abuse.
o However, s 27R does have a significant role to play, examples were given of how this can be experienced in practice.
o There is acknowledgement that certain prejudice has occurred.
o The key factor in refusing to stay the proceedings is all present at the alleged assault are alive and available to give evidence.
There are a number of authorities that recognize that delay (or substantial passage of time) can have effects on memory and quality of justice.
o See Longman v The Queen (1989) 168 CLR 79 and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 and Batistatos v Roads and Traffic Authority of New South Wales  HCA 27.
o See also for articulation of problems inherent in meeting allegations about events alleged to have occurred many years ago, involving children, Nicholson J in R v Jacobi (2012) 114 SASR 227.
In oral agreement, three broad complaints were made by the Appellant about the primary judge’s decision:
1. That the judge wrongly limited herself to the discrete question of whether the trial would be unfair, and did not conduct the broader evaluative process needed to determine whether there was an abuse of process. In support of this submission, the applicant contended that the judge ‘elevated the example in s 27R of the Act into the test to be applied to determine whether there should be a stay’.
2. That the judge failed to consider appropriately the matters relevant to determining whether there should be a stay including nature of allegations, loss of witnesses, fact defendant was a child at the time, reasons for delay.
3. That the decision was plainly unjust.
The Court of Appeal concluded that the defendant at age 62 was being asked to defend allegations regarding events that were alleged to have occurred when he was 13 in relation to someone who, on the Plaintiff’s own evidence, he knew for about a week. The court found that ‘the burdensome and oppressive nature of that task is manifest.’
The court also noted that it was difficult to investigate relevant surrounding circumstances and that the plaintiff’s own recollections were also considered vague.
There were also significant issues of causation and quantum.
The court also found that it was an error to consider that the fact that two of the child witnesses were alive to be a key factor. Other factors also mentioned included the death of the plaintiff’s mother. The plaintiff’s reasons for delaying were also considered inconclusive.
The court reached the view that it would be plainly unjust to permit the plaintiff’s proceeding to continue. The court said that it cannot be realistically expected for the defendant to defend himself against something that allegedly happened 50 years ago, so little is known about the circumstances and all adult witnesses are dead.
Orders were made granting the defendant leave to appeal and allowing the appeal. The orders of the primary judge were set aside and an order was made that the plaintiff’s proceeding be permanently stayed.
This decision shows that despite the abolition of limitation periods in child abuse cases in a number of Australian jurisdictions, defendants will still try and argue delay to have historical child abuse claims struck out or permanently stayed.
Certainly, the further back in time that the events relate to, the more likely it is that a stay will be granted. Query whether there would have been a similar outcome in a case involving institutional abuse where documentary evidence and possibly eye witness or similar fact evidence would be more likely to be available.
12 May 2017
Funding for Redress-Child Migrants, Defence Abuse & Aboriginal Welfare
The Turnbull Government has committed an initial amount of $33.4 million in the 2017/2018 budget to meet the Scheme’s establishment costs and to provide ongoing access to support services for survivors. (http://christianporter.dss.gov.au/media-releases/commonwealth-redress-scheme-for-survivors-of-institutional-child-sexual-abuse-0)
Christian Porter, Minister for Social Services, also announced that from March 2018, a dedicated telephone helpline and website will be available to provide information to survivors and their families about the Scheme. These services will also connect survivors with legal and community support services that are currently provided through the Royal Commission and which will continue to be funded to support the Scheme. This means that the Knowmore Legal Services which was established to provide support to survivors of abuse engaging with the Royal Commission will continue to operate and provide vital legal assistance. It is also very important that the dedicated psychological services will continue to operate and fill an essential need.
Mr Porter also announced that from July 2018, applications for redress will be open to survivors of abuse in Commonwealth institutions which would include defence abuse, child migrant and aboriginal welfare claims. States and non-Government institutions now need to commit to the scheme so that victims of abuse, wherever that abuse might have occurred, are treated equally by institutions and have access to redress as recommended by the Royal Commission.
Mr Porter said, “The nation must be united in supporting survivors of institutional child sexual abuse. Each state, territory and non-government institution must take responsibility for providing redress to those harmed in their care.”
This is another positive development on the road to redress.
Survivors of abuse are encouraged to register with Angela Sdrinis Legal so that as soon as the scheme commences claims can be lodged with priority. Survivors of abuse who may have claims against the Commonwealth are encouraged to come forward in preparation for the July 2018 start date. Please complete our registration form: http://angelasdrinislegal.com.au/sexual-and-institutional-abuse-registration-form.html
11 May 2017
Abuse in Victoria Police
The Victorian Government has announced a consultation process following the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) independent review handed down in December 2015 into sex discrimination and sexual harassment within Victoria Police (https://engage.vic.gov.au/victoria-police-redress-scheme).
The Commission recommended that Victoria Police (supported by the Victorian Government) should develop a restorative engagement and redress scheme for police personnel who have experienced sex discrimination and sexual harassment in the course of their employment.
The consultation paper seeks input into how a restorative process would work. Typically restorative processes include financial compensation, direct engagement by the institution or organization with personal apologies if appropriate and an opportunity to discuss with the victim other practical responses which would assist in recovery.
An example of a restorative process which was used with some success by the Federal Government was the DART Scheme which compensated victims of abuse, discrimination and bullying in the defence force. (http://clik.dva.gov.au/military-compensation-mrca-manuals-and-resources-library/policy-manual/ch-4-liabilities-arising-apart-act/47-defence-abuse-reparation-scheme-payments) The defence force experienced similar difficulties as the ones identified by the VEOHRC review into the Victorian Police Force which is a similar type organization based on hierarchical structures and where in operational settings following orders and being a “team” player may be a matter of life and death but these important attributes do not always translate so comfortably into a modern workplace.
Similar issues were also identified in the Broderick Report into the Australian Federal Police Force (AFP). (https://www.afp.gov.au/culturalchange)
Angela Sdrinis has pursued a number of DART claims and represented victims of abuse at the Royal Commission Case Study into the Australian Defence Force. Angela Sdrinis Legal is also awaiting a decision from the Administrative Appeals Tribunal regarding alleged bullying in the AFP.
Angela Sdrinis Legal are abuse and workers compensation experts and can assist in work related abuse claims.
8 May 2017
Update on the Federal Child Abuse Redress Scheme
The Royal Commission recently called before it a number of representatives from Federal and State Government departments which have been tasked to deal with the proposed Federal redress scheme. (http://www.childabuseroyalcommission.gov.au/case-study/5945c8a0-1ccb-4760-9ef3-4d93d890168f/case-study-51,-march-2017,-sydney)
The Advisory Council that was established to report to Senator Christian Porter (Minister for Social Services) who has carriage of the process on behalf of the Federal Government will not report until the end of the year and in the meantime, the Advisory Council (and its members) is not allowed to discuss its deliberations. So, there is frustratingly little information in the public arena other than the Government’s media release of 4 November 2016 when the scheme was announced. However, Ms Barbara Bennett, Deputy Secretary for the Department of Social Services, gave evidence on behalf of the Department of Social Services and shed some further light on what the Federal Government is planning:
Firstly, Ms Bennett said the Government recognised that the scheme will need to be more than just about money and that it is equally important that the scheme provide emotional, mental and other supports to people who have been survivors of institutional abuse. Ms Bennett said that the claims process will be simple, flexible and as much of the claims process as possible will be done “on the papers” to avoid further traumatising victims of abuse. The scheme will start in 2018 and will last for at least 10 years although this time period is not fixed and will be reviewed 8 years into the scheme.
Ms Bennett confirmed that redress will consist of a monetary payment of up to $150,000 and that there would be access to survivors to trauma informed culturally appropriate counselling and a direct personal response (apology) for those people who seek it.
Ms Bennett also said that the scheme would be “attractive” to institutions and states to opt in and that the Commonwealth will design a “best practise scheme” which will be flexible, non-legal and informal. Redress payments will be exempt from income tests and any payment will be exempt from any debt that may be owed by the survivor to the Commonwealth. Ms Bennett did not elaborate on whether the payments would be tax free but presumably this will be the case as the payments will not include loss of income. Presumably payments will also be exempt from any Centrelink and/or Medicare repayments but this too was not specifically addressed by Ms Bennett.
Any institution that opts in will be responsible to fund the costs of any successful claim made against it through the redress scheme. The Commonwealth will be the funder of last resort for commonwealth entities that cannot pay and the states will be required to fund state entities that cannot pay.
An assessment matrix will be used which will be designed to assess the severity of each case and the scheme will consider ways in which other payments that may have already been made by state, territory or other institutions will be considered in determining what will be paid under the Commonwealth scheme. Importantly, this implies that claimants who have already settled their claims will be eligible to claim “top ups” as was recommended by the Royal Commission.
Angela Sdrinis already has a redress data base of many hundreds of potential redress claimants who have either already settled claims or may not have been able to previously claim because of difficulties with their legal claims and/or the responsible entity no longer existed or had no funds. If you wish to register for Angela Sdrinis Legal’s redress data base please go to http://www.angelasdrinislegal.com.au/sexual-and-institutional-abuse.html and complete the registration form. By registering with Angela Sdrinis Legal we will keep you updated on developments with the redress scheme with a view to ensuring that your claim is lodged with priority once the scheme is established.
27 February 2017
Report into the Melbourne Response published by Royal Commission
Former Federal Court Judge Donnell Ryan QC handed down his report (Ryan Report) into the Melbourne Response on 25 September 2015. Many victims had yet again poured their hearts out regarding their abuse and their treatment at the Melbourne Archdiocese of the Catholic Church and had an expectation that the report would be released to them and to the public by Archbishop Hart. Calls to the Archbishop to release the report have fallen on deaf ears reaffirming yet again that the Church still doesn’t get it despite apologies, crocodile tears and assurances that things have changed. It took the Royal Commission into Child Abuse to release the report. This underlines yet again the importance of this Royal Commission and raises concerns about how institutions will behave once the Commission’s spotlight is no longer shining a light on institutional responses to child abuse claims.
The Ryan Report included the following recommendations:
Angela Sdrinis Legal is taking inquiries regarding previously settled claims under the Melbourne Response and is pursuing test cases with a view to having previous settlements set aside. If you, or someone you know, has been a victim of Catholic Clerical Abuse and you wish to make a claim or register on our data base for a future claim, please contact our office on 03 9686 6610, email at email@example.com or register your abuse claim at our website www.angelasdrinislegal.com.au by completing our institutional abuse questionnaire.
22 November 2016
Tasmania Announces Abolition of Limitation Periods in Child Abuse Cases
The Tasmanian Government is the last in the line of state governments to announce the abolition of limitation periods in child sex abuse cases as recommended by the Royal Commission into Child Abuse. Victoria, New South Wales and Queensland have already abolished limitation periods in these cases and the Western Australian Government and Opposition have promised to introduce similar legislation in the WA parliament after the state election next March. With the Tasmanian announcement the only state yet to act is South Australia and the South Australian Government should hang its head in shame for dragging the chain.
Vanessa Goodwin, Tasmania’s Attorney General, said,
“The Government acknowledges that survivors of sexual abuse find it incredibly difficult to report the crimes perpetrated against them to authorities, and this often impacts on when crimes are reported and civil litigation is taken. The impact of child sexual abuse is significant and long lasting. In recognition of this, and in line with recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse, the Tasmanian Government is taking action to abolish limitation periods in relation to civil claims for damages for victims of child sexual and physical abuse. The drafting of new laws is currently underway and, subject to the approval of Parliament, it is intended that the abolishment of the limitation period will apply retrospectively.”
The indication from the Tasmanian Government that it will also abolishing limitation periods in cases of physical abuse is particularly welcome as physical abuse can be as damaging to a child as sexual abuse.
Vanessa Good win also said, “Because of the other difficulties faced by survivors, such as identifying a defendant who has the assets to meet any damages award, it is unlikely that the abolition of the limitation period will lead to the opening of “floodgates” of litigation.”
Angela Sdrinis Legal is currently representing numerous Tasmanian child abuse survivors who have in the main been abused in institutional settings, including abuse which has occurred in state care and in state schools. The abolition of limitation periods will make a significant difference to the capacity of these survivors to sue the Tasmanian Government. Whilst questions of proof in historical cases and the concept of vicarious liability i.e that organisations cannot always be held liable for the illegal conduct of employees will continue to be barriers, in many of our cases we have documentary proof that the state knew our clients were at risk and failed to act. In these cases, the statute of limitations has been the significant barrier to successful litigation.
If you or someone you know was abused in a Tasmanian institution, contact Angela Sdrinis Legal for free and confidential preliminary advice.
4 November 2016
Redress for Victims of Institutional Abuse
The Federal Government has announced a redress scheme to compensate victims of historical child sex abuse following recommendations by the Royal Commission which has outlined the importance of a redress scheme in this area.
One of the reasons we have a Royal Commission into Child Sex Abuse (RC) is because there was community outrage at the many legal barriers in both civil and the criminal law faced by victims of historical abuse so that the perpetrators of abuse, and those who shielded them, were escaping responsibility.
There have been various responses to the RC recommendations by Australian states and territories and by institutions involved in the care of children. Importantly however we are starting to see legislative change including the abolition of, or a commitment to abolish, limitation periods in child sex abuse cases in Victoria, NSW, Queensland and WA. The difficulty of course in relying on states and territories to do the right thing is that some states, notably SA and Tasmania, have proven to be recalcitrant in implementing desperately needed reform in this area.
This recalcitrance, which will extend to individual institutions, means that even though the RC has emphasised the importance of consistency of outcomes for victims of abuse, the “opt in” nature of the proposed scheme means that victims of historical child abuse may still miss out on justice and redress based on the luck of the draw as to which state they happened to grow up in or in which institutions were placed. As one victim of abuse said, survivors had no choice about where they were abused, governments and institutions should also have no choice about participation in the scheme.
There is very little detail to date on how the scheme will work and of course the devil is always in the detail. However, we do know that a maximum lump sum payment of $150,000 will be available to survivors, psychological counselling will be made separately available, states and territories will be able to “opt in”, the responsible institution will fund the relevant liability and the scheme will commence in 2018 which will go for 10 years.
What we don’t know:
-what will be the standard of proof required to establish liability;
-how will lump sum compensation be calculated;
-will survivors who have previously settled claims be able to apply for a “top up”;
-will the Commonwealth Government be the funder of last resort as recommended by the RC so that survivors can claim compensation even if institutions no longer exist.
These are just some of the questions that need to be addressed as does a more detailed explanation of the government’s assertion that states and territories cannot be compelled to participate because of constitutional reasons.
Angela Sdrinis Legal has a large database of survivors/claimants for whom we are currently pursuing claims and for the purpose of registering for the redress scheme. Please register with our office for updates on redress and for advice on making a claim, including in relation to a previously settled matter.
9 September 2016
The Adversarial Legal System and Child Sex Abuse
In a recent address to the Judicial College of Victoria, (http://childabuseroyalcommission.gov.au/media-centre/speeches/judicial-college-of-victoria) the Hon Justice McLellan AM, Chair of the Royal Commission into Child Abuse, discussed the difficulties experienced by child sex abuse victims in the courts where their alleged perpetrators are being prosecuted. His comments equally apply to victims who are seeking compensation in our courts. Justice McLellan in speaking of the adversarial legal system made the following points:
There are still many reasons why, despite the now overwhelming evidence that institutions were aware of child sex abuse and failed to act, there are still so few cases where historical child sex abuse allegations are successfully pursued in the courts both in criminal and civil matters. One of the reasons for this is that delay of itself creates huge difficulties in proving a case to a standard required in a court of law. Added to this are the difficulties outlined above that victims will face in giving evidence in an adversarial system. Whilst there can be some recognition and modification of the process of giving evidence in child sex abuse cases, and Justice McLellan outlines some possible changes in his speech, ultimately it is unlikely that the court process will ever change to the extent that “proof” is not required and this can be the most difficult thing to achieve in these historical abuse claims.
29 August 2016
More States Move to Abolish Limitation Periods in Child Abuse Cases
The Guardian has reported that Queensland could be the first Australian jurisdiction to enable victims of child sex abuse to revive previously settled claims against churches and schools under a state opposition proposal to broaden their legal rights. (https://www.theguardian.com/australia-news/2016/aug/16/queensland-may-allow-child-sex-abuse-victims-to-revive-previously-settled-claims)
This possibility has been flagged by Queensland’s Opposition in response to a bill introduced by the Palaszczuk government to abolish limitation periods in child abuse cases.
Whilst the abolition of time limits in child abuse cases is a very important move for current and future victims of child sex assault, it does not provide for justice for thousands of past victims of institutional abuse who either settled their cases for modest sums, or who did not receive any compensation at all, because of the probability or fact of being unable to overcome the limitation periods in order to pursue their claims in court.
Victoria and NSW have already passed laws to abolish limitation periods. The ACT has also announced moves to abolish limitation periods and there is currently a private members bill before Western Australian parliament which has bipartisan support and is also likely to result in the abolition of limitation periods in child abuse cases in that state.
The Guardian reports that when the Palaszczuk government tabled its bill scrapping age limits on abuse claims, the Liberal National party announced it would move amendments to allow victims to have a court strike down settlements made lower because they fell outside the statute of limitations. While the Queensland government announced it would not oppose the revival of previous claims against the state, the attorney general, Yvette D’Ath, has cited the “unintended consequences” of removing what are also known as “past deeds” struck between victims and private institutions.
Unless past deeds can be struck out, victims of child abuse will not get the justice they deserve. Many of these victims have fought for justice for decades and it is through their strength and refusal to keep quiet that we have had the Victorian Parliamentary Inquiry and now the Royal Commission. How unfair if the trauma that these people have put themselves through in coming forward means that future victims are protected but those who have already settled their claims have nowhere to go.
On another note, Tasmania and South Australia are now the only Australian states which have not made any move to abolish limitation periods in child abuse cases. Even the Federal Government has announced that it will not rely on limitation periods in cases involving Defence abuse provided that claims are brought forward by April 2019.
2 August 2016
More States Move to Abolish Limitation Periods in Child Abuse Cases
The Royal Commission into Child Sex Abuse into its report on Redress and Civil Litigation ( http://www.childabuseroyalcommission.gov.au/policy-and-research/redress/final-report-redress-and-civil-litigation ) identified many barriers which faced victims of historical child abuse who wished to pursue justice in the courts. One of the very significant barriers identified by the Royal Commission was limitation periods which provide for specific periods of time within which victims of child abuse had to lodge their claims with a court or face having the claim struck out because they were too late.
These limitation periods which varied in each Australian state meant that in Western Australia for example (which has the harshest limitation regime in Australia) the vast majority of victims of historical abuse were statute barred or out of time and the vast majority of victims simply cannot pursue their claims in the courts. On the other hand, South Australia traditionally has had the most “generous” regime which has meant that two of the land mark cases in the area of child abuse being Trevorrow and Rundle were heard in that state and the claimants were successful in overcoming the limitation period.
The Royal Commission has recommended the abolition of limitation periods in child abuse cases and the Andrews Labour Government (to its credit) was the first to abolish limitation periods in child abuse cases. NSW has now followed suit and the ACT recently announced moves to also abolish limitation periods. http://www.abc.net.au/news/2016-08-02/time-limit-on-sex-abuse-civil-claims-to-be-removed/7680898
A private members’ bill has been introduced in WA also with a view to abolishing limitation periods in these claims. It is understood that he bill has wide support amongst government ranks and it is hoped that the bill will be passed before the end of the year. The Federal Government has also announced that it will not rely on the limitations defence in Defence abuse claims which are processed prior to April 2019.
Unfortunately, Queensland and Tasmania appear to be dragging the chain on this very important issue. Angela Sdrinis Legal acts for victims of abuse in Tasmania and has been in touch with the Tasmanian Government about these issues and a settlement protocol similar to the one developed by Angela Sdrinis with the Victorian Government in state ward claims. The Tasmanian Government has so far met these requests with a deafening silence and Angela Sdrinis Legal is shortly to issue a test case in a state ward matter.
30 May 2016
David Whitcroft-Convicted Paedophile
Earlier this month David Whitcroft was convicted of offences against a man whom he abused at age 14 when he was a ward of the state. It has now been reported by the Age that Whitcroft also had access to students at Geelong College for a period of over 20 years. http://www.theage.com.au/victoria/convicted-paedophile-had-access-to-geelong-college-students-for-almost-20-years-20160526-gp4iby.html
Angela Sdrinis Legal acts for victims of David Whitcroft and students who allege abuse at Geelong College.
If you were a victim of abuse or if you can provide further information regarding Whitcroft, please contact Angela Sdrinis Legal for a confidential consultation.
23 May 2016
Royal Commission Announces Defence Case Study-Balcombe Army Apprentice School/HMAS Leeuwin and Cadets to be Investigated
The Royal Commission is continuing to cast its laser eye over institutions and on 21 June, 2016, the Australian Defence Forces’ response to child sex abuse will be the subject of public scrutiny for a period of 2 weeks.
The scope and purpose of the public hearing is to inquire into the experiences of survivors of child sexual abuse of the following institutions operated by the Australian Defence Force (ADF):
a. HMAS Leeuwin in the period 1960 to 1980
b. The Army Apprentice School Balcombe in the period 1970 to 1980, and
c. ADF Cadets in the period 2000 to present.
The Royal Commission will also inquire into the systems, policies, practices and procedures of the ADF and the ADF Cadets to prevent child sexual abuse, and raising and responding to concerns and complaints about child sexual abuse, in the above listed institutions.
Angela Sdrinis Legal acts for a number of former army apprentices who allege sexual, physical and emotional abuse (including bastardisation) at Balcombe and we are currently investigating and putting forward claims for compensation. Our clients were aged between 15 and 17 when the alleged abuse occurred.
Angela Sdrinis Legal also acts for survivors of abuse at HMAS Leeuwin and former Army Cadets.
Previously one of the barriers to pursuing historical abuse claims was that these claims were statute barred ie out of time. Limitation periods in child abuse cases were abolished in Victoria in July of 2015. In addition, the Federal Attorney-General George Branids recently issued a direction under the Judiciary Act 1903 that the Commonwealth will not plead a defence to a time barred child abuse claim on the basis of the expiry of an applicable limitation period.
This direction is particularly helpful to survivors who suffered abuse in other states where limitation periods are yet to be abolished. However, the directions ceases on 30 April 2019 so it is important that survivors of abuse come forward without further delay.
24 February 2016
Did you or someone you know suffer abuse at St Luke’s Children’s Home, Bendigo?
St Luke’s Children’s Home, also known as St Luke’s, St Luke’s Toddlers’ Home, St Luke’s Bendigo for Toddlers, or Langley Hall, was run by the Mission of St James and St John (now the Anglican Church). From 1932 until 1979, it housed around 1500 children.
Currently, our office is representing a number of clients who allege they suffered physical, psychological and sexual abuse whilst residents of St Luke’s. Importantly, some of these people have identified a common perpetrator who worked at St Luke’s.
A part of the work we do at Angela Sdrinis Legal involves taking a statement from our clients, and then finding evidence to support our clients’ claims. In these matters, the more people who come forward, the more likely it is that allegations of historical abuse against particular perpetrators/institutions can be proved.
Angela Sdrinis Legal is pursuing claims against the State of Victoria (where the victims were wards of the state) and against the Anglican Church, some of which have already been settled.
If you were abused at St Luke’s and would like to make a claim for compensation, please contact our office for free and confidential legal advice. ”
1 February 2016
$215,000 awarded in Sentencing Act application brought by Angela Sdrinis Legal - AA v Buckley
Judge Dean of the County Court handed down written reasons for a Judgement on 29 January 2016 in relation to an award of $215,000 in a claim for compensation pursuant to s85B of the Sentencing Act (where the sentencing judge can order that compensation is paid by the perpetrator to his or her victim) brought by this firm on behalf of a former ward of state who was abused in care.
The perpetrator of the abuse was Ronald Buckley who pleaded guilty to a charge of indecent assault against AA and three other charges involving other former wards relating to offences that were committed at the Hillside Boys Home where Buckley was Superintendent. He was sentenced to 18 months imprisonment in respect of the 4 charges, 15 months of which was suspended requiring Buckley to serve 3 months imprisonment. On 27 January 2015 Buckley died whilst serving his sentence and the claim for compensation under the Sentencing Act was brought against his estate.
The Judge noted that the offending which was the subject of the charge brought against Buckley occurred in the context of repeated sexual and physical assaults carried out by Buckley against AA. The Judge also noted that the award of compensation in this case was for pain and suffering occasioned by the offence that Buckley was convicted of but the Judge went on to find that in making the award he was entitled to consider all of the circumstances surrounding that offending.
The lawyers acting for Buckley’s estate argued that the court was required to somehow calculate the award of compensation by reference to a single instance of offending. Judge Dean said,
“In my opinion the offence the respondent pleaded guilty to was treated by me as a sample charge in respect of a course of conduct of indecent assaults committed by the respondent on the applicant……The compensation order in this case may be made up of an amount for pain and suffering experienced by the applicant as a direct result of the other indecent assaults committed by the respondent against him……The uncontested medical evidence discloses, in my opinion, that the applicant has endured significant and devastating pain and suffering as a direct result of the offending.”
13 January 2016
Military Abuse Claims – Army Apprentice Schools, Balcombe and Latchford Barracks
The Federal Government has conceded that there is a culture of abuse in our Defence Forces. There was little choice but for the Government to make this concession following a damning report by DLA Piper into military abuse.
The sexual, physical and emotional abuse suffered by adult victims is bad enough but in some areas, kids as young as 14 were drafted into the military and subjected to horrific bastardisation and abuse.
One such notorious base was the Army Apprentice School in Balcombe (and later Latchford Barracks) in Victoria which was established as a school for army apprentices in 1948 and closed in 1982 when the school moved to Bonegilla. Balcombe accepted boys as young as 14 but senior apprentices would be up to the age of 18. The horrific sexual and physical abuse and culture of bastardisation which is now known to have occurred at Balcombe was fuelled by a lack of supervision by duty officers as the camp was run on a system where the senior apprentices (who were still boys themselves) having de facto responsibility for “discipline” whilst at the same time supplying any apprentice aged 16 and over with unlimited alcohol which contributed to a “Lord of the Flies” environment which caused untold damage to many of the boys who were stationed there.
The report released by the Defence Abuse Task Force in November 2014 makes specific reference to Balcombe Barracks and Latchford Barracks where the apprentices were moved in 1982. (http://www.defenceabusetaskforce.gov.au/reports/documents/reportonabuseindefence.doc)
The report says at p 216, “It appears that there was public awareness of the existence of harassment and bullying within the Army Apprentice Scheme at the Army Apprentice School during the late 1960s and early 1970s. In 1969, the then Minister for Defence reported in Parliament that there had been isolated incidents of harassment and bullying at the Army Apprentice School since 1967, which resulted in the reduction in rank of one apprentice and the discharge of four other apprentices. Harassment and bullying at the Army Apprentice School also gained media attention during the 1970s following an incident of assault on a junior apprentice during which senior apprentices broke his nose. Four Army apprentices were found guilty of the assault and sentenced to seven days’ detention with a $40 fine. The Commanding Officer of the Army Apprentice School at the time denied that any hazing or initiation practices took place, and said: ‘I realise that there is this tendency towards bullying in all boarding schools and it would be surprising to me if there weren’t some latent aspects of bullying in this school.’
The Taskforce received complaints from 68 complainants which were found to have raised plausible allegations of abuse at the Army Apprentice School, Balcombe Barracks and Latchford Barracks. Almost half of the complainants experienced sexual abuse and all but one of the complainants were male. Complainants experienced sexual abuse from staff members and/or senior apprentices.
The report states “A very high proportion of complainants experienced physical abuse at the Army Apprentice School (62 complainants) and that many complainants reported acts of physical abuse carried out by senior apprentices purely for their entertainment, while other complainants reported that senior apprentices would abuse their positions of seniority and retaliate with violence for perceived minor breaches of regulations, or if a junior apprentice showed any resistance.”
Angela Sdrinis Legal is acting for former army apprentices who experienced abuse. If you were a victim of abuse at Balcombe or Latchford you may be entitled to damages. If your abuse occurred before 1 December 1988, there is an unfettered right to sue for damages. Damages claims for historical child abuse against the Commonwealth are now much more straightforward in Victoria because of the recent abolition of the statute of limitations.
Please contact our office for free, confidential advice. Where there are reasonable prospects of success, we act on a completely no win/no fee basis which means that you are not liable for any up-front costs or out of pocket expenses
3 December 2015
Private School Found Liable in Child Sex Abuse Case
In a previous blog on the Erlich decision (17 September 2015), the case of Lepore v NSW  HCA 4 was referred to in the context of vicarious liability of schools for the illegal conduct of employees including child sex abuse. The finding of vicarious liability generally requires that for an act to be considered within the course of employment, it must either be authorized, or be intimately connected, to an authorised act. The High Court found in Lepore v NSW  HCA 4 (6 February 2003) that the school in that case was not vicariously liable for the illegal conduct (sexual assaults) of its employee. However the door was left open for vicarious liability to be found where the “empowerment of the employee materially increased the risk of the sexual assault and hence the harm.”
As a result of the Lepore decision (and other legal barriers which we have discussed in our blogs) very few claims for school sex abuse have been pursued in the Courts. However on 10 November 2015, the Full Court of the Supreme Court of South Australia handed down a decision, on appeal from a trial judge who had found against the Plaintiff, which held a school vicariously liable for the sexual abuse of a student. (A, DC v PRINCE ALFRED COLLEGE INC  SASCFC 161 (10 November 2015) - http://www.austlii.edu.au/au/cases/sa/SASCFC/2015/161.html.)
The facts are that a boarder at the private school was sexually assaulted on at least 20 occasions over eight months in 1962 by a boarding house master, Bain, who was later convicted for indecent assault in relation to his abuse of the appellant and other former boarders. The appellant (the victim) argued firstly that the school had been negligent in employing Bain without proper inquiries as to his suitability. The appellant also argued that the school was vicariously liable for Bain’s conduct and finally that an extension of time should be allowed, which had been denied by the trial judge.
The Full Court found that the school was vicariously liable essentially adopting the close connection test referred to in Lepore. Chief Justice Kourakis found that Bain’s employment duties as a housemaster included responsibility for the residential care of the boarders, allowing discretion as to the best way to settle the boarders at night. The sexual touching which occurred whilst Bain sat on the appellant’s bed took place in the ostensible discharge of his responsibility for the care of the boarders at night. There was a close connection between Bain’s employment duties and the offending that occurred on the appellant’s bed.
Justice Gray said on the extension of time application, “In my view, having regard to section 48(3) (b) of the Limitation of Actions Act, it would be just to grant the plaintiff an extension of time if liability was established. The plaintiff has suffered horrific abuse which has had a crippling impact on his life. Dr Kelly’s opinion was obtained in 2007 and for the first time confirmed the plaintiff’s worst fears that his illness was incurable, contrary to previous medical opinions obtained by the plaintiff. Prince Alfred College, having become aware of Bain’s criminal conduct in the 1960s, had the opportunity to undertake an investigation and maintain proper records. When the plaintiff approached the school for assistance in the 1990s, this presented the school with another opportunity to investigate the matter. Much of the evidence that has been lost was within Prince Alfred College’s control, or could have been readily obtained or preserved by the school over the past 30 years. It is to be understood that difficulties arise in litigating matters which took place some 30 years ago. Further, it is desirable that matters are litigated promptly after a cause of action arises. In all the circumstances, however, the Judge’s discretion miscarried. I would grant an extension of time.”
The case has been remitted to the trial judge for assessment of damages. In addition to the usual heads of damages such as pain and suffering, loss of income and medical and like expenses, we are now seeing the parents of many victims of abuse in private schools seeking recovery of school fees and indeed some schools have voluntarily offered to refund these. In fact the Anglican Diocese of Brisbane has announced that it will refund the school fees of any child abused in its schools. http://www.abc.net.au/news/2015-11-14/anglican-church-to-refund-school-fees-sexual-abuse-victims/6940902
24 November 2015
GUIDELINES ON CIVIL CLAIMS ISSUED BY THE CATHOLIC CHURCH
The Catholic Church’s Truth Justice and Healing Council (which was established to co-ordinate the Church’s response to the Royal Commission into Child Sex Abuse) has, on the eve of the further Royal Commission Public Hearings into the Melbourne and Ballarat Dioceses, published guidelines on how the Church should respond to civil claims for child sex abuse. http://www.tjhcouncil.org.au/media.aspx
The guidelines, which the TJHC says will come into effect from 1 January 2016 , include the following:
The guidelines are appropriate and consistent with the Royal Commission’s recommenations regarding redress and civil litigation. However the proposed steps are just “guidelines”. TJHC’s release says that the guidelines have been endorsed by the Church leadership but many victims and advocates have a healthy scepticism as to the extent to which the Church, its various dioceses and religious orders will agree to be bound by these guidelines.
Cardinal Pell has told us in the past that the Catholic Church is made up of many entities and that neither he nor any other church leader in Australia has the authority to speak on behalf of the Church as a whole.
In any event the problem with guidelines is that they are just that-they offer guidance. What victims need is more than guidelines. They need real commitments which are binding, an independent redress scheme so claimants do not have to rely on the “goodwill” of the institutions which were responsible for their abuse and legislative changes which will ensure that institutions can be forced to respond to allegations of child abuse.
12 October 2015
SALVATION ARMY SOUTHERN TERRITORY TO RE-OPEN SETTLEMENTS
On Friday 9 October 2015, after listening to 3 days of harrowing testimony from survivors of child sex abuse in four Homes run by the Salvation Army Southern Territory namely Eden Park Boys Home in South Australia, Nedlands Children’s Home in Western Australia and the Box Hill Boys Home and the Bayswater Boys Home (1 & 2) in Victoria, Flloyd Tidd, the Territorial Commander of The Salvation Army Southern Territory again apologised on behalf of the Salvation Army to former residents of Salvation Army Homes. Commander Tidd said:
“You were each in one way or another entrusted to the care of The Salvation Army. Some of you came to the care of The Salvation Army from difficult family situations. Others of you were sent to our homes by the State or by orders of the court. All of you were blameless. All of you were just children. Each and every one of you had the right to be protected and cared for. You had a right to feel safe. You had a right to grow up in an environment that enabled you to reach your full potential. In each of these respects, we let you down, in ways that we can never fully atone for. For the physical, the sexual and the emotional abuse you suffered while you were in our care, on behalf of myself personally and The Salvation Army, I am profoundly sorry.”
In a wide ranging opening statement. Commander Tidd spoke of how the Salvation Army intended to address many of the recommendations the Royal Commission has made in relation to redress and civil litigation. Commander Tidd also announced that even though the Salvation Army supports the establishment of a national redress scheme, he committed to re-opening some settlements in the interim. In particular, Commander Tidd said that he had directed a review of settled claims. This review will focus in particular upon two categories of survivors. First, the review will prioritise survivors who reached settlements with the Southern Territory without the benefit of their own legal advice.
Commander Tidd said that it is important to ensure that such survivors were not disadvantaged. Secondly, the review will prioritise cases where new factual material has come to light after a claim was settled, for example, where similar claims were subsequently made against the same abuser by other survivors, or where abusers who had denied allegations against them were subsequently arrested and convicted. Upon completion of the review, which he anticipated would be before the end of this year, it is likely that The Salvation Army will reopen a number of claims in the two categories outlined, even though they have been settled and releases have been provided. Commander Tidd also gave a commitment that, upon completion of the review, the recommendations will be implemented as expeditiously as possible having regard to the guidance given by the Royal Commission for interim payments in its Redress Report
Even claimants who do not believe that there is any “new” information should seek advice. In committing to the recommendations of the Royal Commission regarding redress and civil litigation, Commander Tidd said,
“The Royal Commission has made recommendations about the appropriate level of monetary payments. The Salvation Army will, of course, cooperate and comply with whatever payment levels are adopted by a national redress scheme.”
This would mean that if a Redress Scheme is established which allows for claimants to seek a “top up”, previous payments would be taken into account but there would be the opportunity to argue that an additional payment under a redress scheme should be made.
Commander Tidd also spoke of other matters important to survivors such as changes that the Salvation Army has already implemented to ensure the safety of children who come into contact with the Salvation Army and its officers today.
The Salvation Army’s announcement regarding the re-opening of settlements, whilst having some limitations in the interim, is extremely welcome. A number of the survivors who gave evidence at the Hearing made the point that many former residents of these homes are dying. Tragically one of the survivors who was to give evidence died between making his statement last month and the hearing. His family’s statement which was read into evidence was a stark reminder of the intergenerational effects of child sex abuse and that many survivors cannot wait much longer for justice to be done.
Angela Sdrinis Legal is currently representing numerous survivors who have settled claims which they are seeking to re-open.
17 September 2015
LANDMARK SCHOOL ABUSE CASE
Rush J has found the Adass Israel School Inc directly and vicariously liable for the acts of the former school principle who sexually assaulted the Plaintiff, Hadassa Erlich between 2003 and 2006.
His Honour Justice Rush said the evidence demonstrated that the ‘school is in every sense a religious school” where students were completely isolated from everything beyond the community they were in. The Plaintiff’s evidence, which was not contested, was that Leiffer (the Principal) touched the Plaintiff on the breasts, sucked her breasts and digitally penetrated her. This abuse occurred at the Principal’s home, at the school and at school camps.
The Judge found that the school was directly liable for the Principal’s acts because “Her control and authority within the school (was) unrestrained and unrestricted. In that sense her misconduct was the misconduct of the school and the school is directly liable for her conduct.”
The Judge also found that the teacher student relationship was such that the Principal used her power and intimacy to commit sexual abuse and that the connection between the sexual assaults and the employment was such that to “make it just to treat such contact as occurring in the course of employment” and therefore the school was also vicariously liable for the Principal’s conduct.
The finding of vicarious liability generally requires that for an act to be considered within the course of employment, it must either be authorized, or be intimately connected, to an authorised act. The High Court found in Lepore v NSW  HCA 4 (6 February 2003) that the school in that case was not vicariously liable for the illegal conduct (sexual assaults) of its employee. However the door was left open for vicarious liability to be found where the “empowerment of the employee materially increased the risk of the sexual assault and hence the harm.” Certainly the facts of this case would seem to support that the Principal had complete power and control and was essentially unsupervised thereby substantially increasing the risk of harm.
The other interesting aspect of the Erlich case is that exemplary damages (which are awarded to punish the defendant) were awarded against the school (and the principal) not in relation to the abuse itself but in relation to the school’s conduct when the sexual assaults were revealed. The evidence was that the school board arranged for the Principal to leave the country (and reimbursed the cost of the flights for her and her family) despite being aware of at least 8 separate allegations of sexual misconduct involving Leiffer and girls at the school in addition to the initial complaint. Further, the allegations were not reported to the police (despite mandatory reporting legislation being in place).
Rush J found that the facilitating of Leiffer’ s urgent departure was “likely motivated by a desire to conceal her wrongdoing and confine and isolate the conduct and its consequences to within the Adass community.”
Finally, an award of nearly $1.3 million was made which is likely the highest award of damages in a sexual abuse case in this state.
This is a decision which will strike terror into the hearts of government and non-government schools, particularly those schools who have been the subject of public hearings before the Royal Commission into Child Abuse where there have been findings, or are likely to be findings, that the school either knew of the sexual abuse and failed to act or where steps were taken to conceal the abuse once the allegations emerged.
Whilst this is clearly a very important case in the area of civil litigation for child sex abuse, this case might be distinguished on the basis that it would be unusual to find the level of power and control that the Principal had in a very orthodox Jewish school as compared to more mainstream schools.
FAIRBRIDGE SETTLEMENT RESULTS IN $24,000,000 PAYOUT.
We previously wrote about a class action involving victims of historical abuse finally being certified in the NSW courts and being allowed to proceed. (see blog dated dated 9 July 2014)
One hundred and fifty victims of abuse have now settled their claims for $24,000,000. The claims were brought by child migrants who alleged they suffered physical, sexual and emotional abuse at the Fairbridge Farm School. This settlement will result in an average payment to claimants of $160,000 although it is likely that there will be legal costs to be paid out of the settlement sum. The claims were brought against the Fairbridge Foundation, the NSW and Commonwealth Governments. The compensation monies will be paid into a fund. The Foundation and NSW Government have offered apologies to the victims. It appears that at this stage the Abbott Government will not be part of the apology. (http://www.sbs.com.au/news/article/2015/06/29/record-payout-fairbridge-abuse-victims)
The action was launched in the courts 6 years ago. No doubt that the preparations to launch the case commenced some years before then. Whilst the settlement is a victory for the claimants and all victims of historical abuse, the long fought struggle and no doubt the financial and emotional toll on the claimants could have been largely avoided had a national redress scheme been in place which could have determined the claims in a timely and cost effective manner. Further claimants had until 24 July 2015 to come forward. Depending on the number of additional claimants who have joined the action, individual payments may be reduced. Application will be made to have the settlement approved in August in the NSW Supreme Court. (http://www.centralwesterndaily.com.au/story/3178739/six-year-struggle-ends-with-24m-settlement-for-fairbridge-children/)
The Abbott Government has advised the Royal Commission it will not participate in or establish a National Redress Scheme. This is extremely disappointing. Tony Abbott should show leadership in this area as did Australia’s former Prime Minister Julia Gillard who established the Royal Commission into Child Abuse in 2012.
ROYAL COMMISSION PUBLIC HEARING ON YOUTH TRAINING CENTRES IN VICTORIA
The Royal Commission (RC) into Child Abuse has announced that it will hold a public hearing in Melbourne from Monday 17 August 2015 with respect to a number of Victorian Government run institutions such as Turana Youth Training Centre, Winlaton Youth Training Centre and Baltara Reception Centre between the 1960s and early 1990s. (http://www.childabuseroyalcommission.gov.au/media-centre/media-releases/2015-07/public-hearing-into-victorian-state-run-youth-trai)
The RC will typically call evidence as to the experiences of the former residents of these institutions and the responses of the institutions and their staff to any complaints that were made.
The RC has also announced that it will be looking into past and current policies and procedures of Victoria Police and the Department of Health and Human Services (and its predecessors) and any related matters.
Having investigated hundreds of claims relating to historical child abuse in Victorian orphanages and state run institutions, it is expected that the RC will find evidence of systemic abuse, a failure to deal with complaints, a lack of process which allowed victims of abuse to complain and a culture of blaming the victim.
Any person or institution who believes that they have a direct and substantial interest in the scope and purpose of the public hearing has been invited to lodge a written application for leave to appear at the public hearing by 3 August 2015. The RC will determine who will be called to give evidence on the basis of whether the applicant has a “substantial and direct interest in appearing”. No doubt the RC will also be calling witnesses based on evidence given at private hearings and on the basis of documents that have been subpoenaed.
The Victorian Government has come a long way in how it deals with claims for institutional abuse. We have developed a protocol whereby it is not necessary to issue proceedings in a court of law to pursue a claim and the vast majority of claims settle out of court. The Victorian Government has committed to implementing all of the recommendations of the Betrayal of Trust Report which was produced following a parliamentary inquiry into the responses to complaints of child abuse by religious and non-Government institutions. It has already effectively abolished time limits in child abuse cases (see our blog of 27 April 2015) and it has announced that it will be establishing a redress scheme and a consultation paper on this issue is expected shortly. No doubt the RC’s public hearing into these state run institutions will help inform the Victorian Government’s ongoing policy decisions in this area.
27 April 2015
BILL ABOLISHING LIMITATION PERIODS IN CHILD ABUSE CASES PASSED WITHOUT AMENDMENT
The Limitation of Actions Amendment (Child Abuse) Bill 2015 (the Bill) has been passed without amendment and is now law having been given Royal Assent on 21 April 2015.
The passing of this legislation is a credit to all Victorian Parliamentarians who gave the Bill bipartisan support. It is also a credit to the many advocates and campaigners who fought to for the establishment of the Victorian Parliamentary Inquiry and the Royal Commission into Institutional Child Abuse which have directly led to the passing of the Bill and which will hopefully open the way for further justice for victims of child abuse.
Victoria is the first and only state to abolish limitation periods in child abuse cases. Other states should be urged to follow suit. The Royal Commission has commented many times on how important it is to victims of child abuse that there is consistency and transparency in how claims are dealt with. It is a slap in the face for all those victims who suffered abuse interstate that limitation periods still mean that they may be unable to seek justice in the courts.
Having said that, Victoria and other states still have a long way to go. The “Ellis” defence which we have written about previously is still a very significant barrier in suing a number of churches. In addition, for many victims of child abuse, their claims would still be hopelessly compromised in terms of litigation by the effluxion of time and in particular those victims who cannot identify their victims or where the institutions no longer exist or have no money will still effectively be locked out of the civil courts.
So whilst law reform in this area is still vital, there is also still a pressing need for a Redress Scheme to be established so that the suffering of all victims of institutional child abuse can be recognised.
7 April 2015
COMMONWEALTH GOVERNMENT REFUSES TO COMMIT TO NATIONAL REDRESS SCHEME BUT VICTORIAN GOVERNMENT COMMITS TO REDRESS.
The Royal Commission into Child Abuse (the Commission) has already published a number of the submissions it has received in response to its Consultation Paper on Redress and Civil Litigation.
The Commonwealth Government chose to submit a 4 page document (http://www.childabuseroyalcommission.gov.au/policy-and-research/redress/submissions-on-redress-and-civil-litigation) in which it essentially abdicated all responsibility for the issue of child sex abuse in Australian society. The Commonwealth Government also chose not to appear before the Commission which further demonstrated the Abbot Government’s lack of commitment to the important work being done on behalf of victims of abuse. (http://www.abc.net.au/news/2015-03-25/child-abuse-royal-commissioners-disappointed-in/6348350)
Firstly, the Commonwealth’s position was that it was essentially too complex and too costly to establish a national scheme. It suggested that the Commonwealth did not have the powers to establish a national scheme and that any national scheme would be duplicating schemes that already exist in some states. None of these arguments are particularly convincing. No doubt there would be complexity and cost involved in establishing a national redress scheme. However child sex abuse is already costing our society in both financial and emotional terms. Complexity in Government frankly goes with the turf. In terms of legislative powers, (if indeed the Commonwealth does not have power to establish a national scheme) the states could cede power to the Commonwealth and there are many examples of this occurring in the past. The Council of Australian Governments (COAG) could easily provide the forum for these discussions to occur.
The Commonwealth also did not commit on extending counselling services to victims of abuse. It simply referred to the services already in existence under the Medicare scheme and invited the Commission to express its views on whether “lack of awareness or confidence presented a barrier to full utilisation of existing services.” The Commonwealth well knows that the biggest barrier to utilisation of existing services is the limited nature of the funding provided by the Commonwealth through the Medicare scheme.
In addition, the Commonwealth refused to accept responsibility as “funder of last resort” so that victims of abuse could still be compensated under a redress scheme even if the institution responsible for the abuse was no longer in existence or was impecunious.
The Commonwealth made the point that the responsibility for providing redress should lie with the institution responsible and invited the Commission to make recommendations that institutions must accept the legal, financial and moral responsibility for failing to protect children. This proposition is difficult to argue with but it begs the question of what is to be done when the institution no longer exists or where it has no money which is the whole point of suggesting that the Commonwealth should be the funder of last resort.
The Victorian Government also made a short submission but in doing so committed to establishing a redress scheme and indicated that it was progressing work on options for a Victorian scheme based on the Betrayal of Trust report’s (the Report) recommendations and indicated that it would shortly be releasing its own consultation paper on this issue. Indeed the Victorian Government again confirmed its commitment to implementing all of the Report’s recommendations, this commitment having been recently demonstrated by the bill presented to Parliament abolishing limitation periods in child abuse cases and the changes to legislation which introduced new grooming offences and the new child safety standards which are to be introduced.
The Victorian Government also indicated that before issuing its consultation paper it will await the Commission’s finding on Redress and Civil Litigation which are due to be handed down in July of this year. This is entirely appropriate.
Angela Sdrinis Legal will be following these developments closely and will be reporting progress on this website.
LIMITATION PERIODS ABOLISHED IN CHILD ABUSE CASES
The Labour Government is to be commended for abolishing limitation periods in child abuse cases. Hopefully this is the first of a tranch of legislative amendments to be introduced which will make it easier for victims of child abuse to pursue civil claims for damages in the courts.
The Limitation of Actions Amendment (child abuse) Bill 2015 has been introduced into Parliament (http://www.parliament.vic.gov.au/legislation/1824-bills-this-week) and is likely to be passed as this is an issue which has bipartisan support. This Bill will come into force by proclamation at a date to be fixed or on 1 September 2015 at the latest.
The Bill abolishes limitation periods in child abuse cases and applies to all actions regardless of the point in time that the relevant act or omission which has resulted in death or personal injury is said to have occurred.
The negligent act must have been in relation to a minor at the relevant time and involve physical or sexual abuse. Time limits are abolished in relation to claims for psychological abuse only where the psychological abuse arises out of the acts or omissions that resulted in the physical or sexual abuse. In other words, the amendments do not apply with respect to claims for pure psychological injuries based for example on emotional abuse only.
The words physical, sexual and psychological abuse are not defined in the Act and will be determined by a court.
The long stop limitation period is abolished in wrongful death claims where the death was caused by sexual or physical abuse but a limitation period of three years from the date of the “discoverability” of the cause of action applies. S 27 F of the Limitations of Actions Act applies in that a dependent would have 3 years from the date of death, or from when a dependent became aware that the death was caused by the fault of the defendant.
A court will still have power to summarily dismiss or permanently stay proceedings where the lapse of time has such a burdensome effect on the Defendant that a fair trial is not possible.
It appears that the amendments will apply to all claims which have not previously been settled including those that are currently in the courts if they have not settled before 1 September 2015 or when the legislation is proclaimed, whichever is earlier.
Sadly these legislative amendments are too late for people who have settled their claims and who have likely discounted heavily for the risks posed by the statute of limitations. Victims are calling on Institutions to either re-open settled matters or to agree to allow claimants to have their day in court, even where releases finalising all rights have been signed.
Time Limits To Be Abolished in Child Abuse Cases
One of the barriers to victims of child abuse having their civil claims heard in a court of law has been the Statute of Limitations which is a law which says that many victims’ claims for damages are out of time. Whilst it has always been possible for victims of historical abuse to apply for an extension of time, these applications are costly and the outcomes have been difficult to predict. Certainly the further you go back in time the less likely it has been that an extension of time will be granted.
Accordingly the Victorian Government’s announcement today that a bill abolishing limitations periods in child abuse cases will be presented in parliament this week is welcome news for victims of abuse and their advocates and supporters.
As yet the bill has not been available for comment. The previous coalition Government had put out for consultation a draft exposure bill on the abolition of time limits and we have written in a previous blog about some of the potential difficulties with respect to the proposed changes. Hopefully this Government has taken on board some of the responses to the previous government’s draft exposure bill. Angela Sdrinis Legal contributed to submissions made to Government by the Law Institute of Victoria and the Australian Lawyers Alliance.
The immediate advantage of the abolition of limitation periods in child abuse cases is that institutional defendants will have one less weapon in their armoury to defeat these claims and to beat down settlement sums because of the risks to claimants with respect to litigation. It will also mean that some cases which may have previously been too risky would now be likely to succeed in a court of law. However other barriers to successful litigation in historical abuse claims remain including whether religious institutions can be sued and the vicarious liability of organisations for the illegal conduct of their employees. These issues are currently being looked at by the Royal Commission and the Labour Government has committed to taking action with respect to these issues but possibly not until the Royal Commission has handed down its recommendations.
The Attorney General is also quoted as saying that the new laws will also allow dependents of deceased victims, such as family members who were also impacted by the abuse to seek civil damages. (The Age 24 February 2015). Dependents of deceased victims have always theoretically had the right to pursue damages claims under the Wrongs Act but the practical difficulties of doing so where the victim has died and in particular proving the abuse without the victim being able to give evidence are likely to mean that in reality even if the statute of limitations is abolished in dependency claims, very few of these cases are likely to see the light of day. However the Government is to be commended for thinking of the family members of victims, many of whom often suffer significant secondary trauma and loss.
10 February 2015
ATTORNEY-GENERAL AFFIRMS GOVERNMENT'S COMMITMENT TO BETRAYAL OF TRUST RECOMMENDATIONS
In a wide ranging speech at the Victorian Law institute’s Conference of Council, Victoria’s Attorney General Martin Pakula confirmed that his Government was committed to implementing all of the recommendations of the Betrayal of Trust report. Mr Pakula pointed out that some of the recommendations regarding criminal sanctions had already been implemented. He said that some of the recommendations relating to changes that need to be made to the civil law were more complicated but that the Government was working on all of the "Betrayal of Trust" recommendations but at different stages. Mr Pakula said that the Government was close to releasing a new proposed bill regarding the abolition of the statute of limitations in child abuse cases (see our blog “Abolition of Limitation Periods in Child Abuse Cases). He said that some proposals regarding the implementation of the recommendations will come forward this year whilst dealing with other recommendations may need to await the outcome of the Royal Commission.
Other actions proposed by the Government which will impact on victims of child abuse include a new Jury Directions Bill. The Bill will be aimed at reducing the complexity in directions to juries being given by judges, particularly in criminal cases. Aspects of the bill which will be relevant in child abuse cases include directions on how tendency evidence should be dealt with. Tendency evidence can be crucial in securing convictions in child abuse cases. Tendency evidence, when admissible, allows the jury to rely on the fact that a person has a tendency to act in a certain way i.e. to sexually abuse children. The rules relating to the admissibility of tendency evidence are strict and in some child abuse cases, the accused has been able to successfully argue that tendency evidence should be excluded which means that trials involving multiple victims have to be heard separately making a conviction much more difficult to secure.
Mr Pakula also spoke about changes to sentencing laws and noted that incarceration rates had increased by 37%. Mr Pakula said that it was too early to tell what impact the abolition of suspended sentences would have as this change was introduced in September of last year. Similarly baseline sentencing, or mandatory sentencing as it is viewed by many lawyers, was only introduced by the previous Government two weeks before the last election. However unless changes are introduced by this Government, the abolition of suspended sentences and the introduction of baseline sentencing is likely to lead to even higher rates of incarceration.
Mr Pakula also spoke about the increase in the number of children who were incarcerated. We know that many children who end up in juvenile detention are escaping abuse or have developed behavioural problems because of abuse. Mr Pakula said that the Royal Commission into Family Violence which has been established by his Government would assist in dealing with some of the problems created by family violence including children at risk, homelessness and alcohol and drug abuse.
30 January 2015
ROYAL COMMISSION CONSIDERS REDRESS SCHEME-ONE STEP CLOSER TO REALITY
Earlier today in a public hearing Justice McLellan read a statement outlining some preliminary comments about redress for victims of institutional abuse. The Royal Commission (the Commission) also released a consultation paper on redress to which Angela Sdrinis Legal has been invited to respond.
The head of the Commission indicated that there was universal agreement between governments and major institutions that justice for victims includes appropriate redress. However, Justice McLellan said that in considering this issue it was important that remedies available at civil law should also be taken into account and he referred to some major differences in the development of the common law in this area between this country and Canada and the UK where as a result of various decisions, victims of historical abuse can more readily access justice in the civil courts.
Justice McLellan said that having considered all the material before it, the Commission had formed the view that effective redress includes 3 elements:
He also said that any scheme must be independent and must treat claimants equally regardless of the institution. Justice McLellan also noted that there was wide ranging support for a national scheme sponsored by the Commonwealth Government to which institutions would be required to contribute. He noted however that others support state schemes or individual schemes run by institutions to which common principles would apply.
Justice McLellan also spoke about the cost of a national redress scheme for victims of historical abuse. He said that in determining the amounts payable in any scheme various assumptions must be made with respect to the number of survivors, the amount of counselling required (and the resultant cost) and the amount of any monetary compensation. Actuaries are assisting the Commission in doing some modelling with an actuarial report available on the Commission website. Justice McLellan said that initial modelling by actuaries has estimated the number of survivors nationally i.e. the number of potential claimants at 65,000 people.
Justice McLellan spoke of the cost of a compensation scheme where there were so many potential claimants. Justice McLellan noted that some victims will need lifelong psychological care which would come at a significant cost. He also noted that some services already exist. He said however, that existing services are not adequate with one option being to significantly expand current public services. Another option is to establish a trust fund that would operate as part of the redress scheme. Justice McLellan was clear that any new services should supplement existing services.
As to the issue of appropriate monetary compensation, the Commission was considering many factors including fairness and affordability. Justice McLellan spoke of caps on compensation of $100,000, $150,000 or $200,000 as having been considered. Justice McLellan also pointed out that the cost of the scheme was actually not significantly affected by the cap but more so by how the claims would be spread. He also referred to modelling whereby compensation would be weighted based on factors including the severity of abuse. This reference seems to be based on the Irish Redress Scheme which the Commission has paid close attention to. Justice McLellan also indicated that payments already made would have to be offset against any future award, clearly leaving the door open for revisited settlements and “top ups”.
Justice McLellan also spoke of what are huge figures in terms of the potential costs and he indicated that if 65,000 claimants received an average payment of $65000, the total cost would be $4.378 billion. Whilst this is a lot of money, when the wealth of some of the institutions which appear to have allowed children to be systemically abused in their care is considered, the capacity to pay is certainly there. Justice McLellan also noted that spread over a period of 10 years, the max cost of redress in any one year would be $650 million nationally.
Justice McLellan also suggested that in addition to redress, civil remedies should continue to be available and he referred to a number of barriers that victims of historical abuse face including the statute of limitations and proving negligence in a clear indication that the Commission would also be considering the need for legislative change in this area so that access to justice in the civil courts will become more readily available.
Angela Sdrinis Legal is taking registrations for potential redress claims. We are also re-opening claims in settled matters. We encourage anyone who may have been a victim of institutional abuse to register on our website or to contact our office directly.
21 January 2015
"Did you suffer abuse at St Paul's Boy's Home Newhaven?"
St Paul’s Boy’s Home, was an orphanage run by the Anglican Church between 1928 and 1979 in Newhaven, Phillip Island. It was established by the Mission of St James and St John. Many boys who attended there said that the physical environment was very suitable for boys and that activities included bush walking, bird watching, fishing and swimming. But like many orphanages of the 20th century, some of the staff who were involved in the “care” of the boys were cruel, sadistic and sexually abusive.
Angela Sdrinis Legal is acting for a group of former residents of the St Paul’s Boy’s Home and is in settlement discussions with the State of Victoria and the Anglican Church to try and resolve claims for compensation. If you were abused at St Paul’s, please contact our office for free, confidential advice.
16 January 2015
THE ROYAL COMMISSION INVESTIGATES CHILD ABUSE AND SEXUAL EXPLOITATION OF CHILDREN IN STATE CARE.
The Royal Commission has now conducted several damaging hearings into private and religious organisations which have been accused of allowing children to be sexually abused. There have been public hearings into the Catholic Church, the Salvation Army, YMCA and many others.
So far government departments which have been involved in the out of home care of children have been largely left out of the spotlight. The Royal Commission has held one public hearing into the notorious NSW Parramatta Girls Home. Many Parramatta victims of abuse had been struggling for years seeking compensation and it was only after the Royal Commission Hearings that the NSW Government finally reacted to the claims in a positive way announcing measures which would assist in resolving claims for compensation in a compassionate way including the introduction of 18 Guiding Principles to guide how NSW agencies would respond to civil claims for child sexual abuse. The NSW Government promised that claims will be finalised as quickly as possible and that agencies would be guided by the understanding that litigation can be a traumatic experience. The Government also indicated that state agencies would not generally raise the passage of time as a defence or reason not to allow a claim. Under current laws there are time limits which apply to historical abuse claims. (http://www.facs.nsw.gov.au/about_us/media_releases/assisting-victims-of-child-sexual-abuse)
The Royal Commission has now moved to order government departments to hand over 10 years of data relating to the alleged and proven abuse of children (http://www.abc.net.au/news/2015-01-15/child-abuse-inquiry-turns-focus-to-exploitation-in-state-care/6019660) and government departments throughout Australia are scrambling to collect the data that the Royal Commission has demanded.
In Victoria we know that this is likely to be a particularly difficult task. A February 2012 Ombudsman’s inquiry into the Department of Human Services’ record keeping with respect to ward/child protection records was damning. In the executive summary of the report the Ombudsman said:
Whilst the Victorian Government subsequently put some more resources into managing ward records, survivors groups and advocates still believe that much of the material that should be available to claimants has either been destroyed or cannot be located because of the state of the archives. Many survivors of abuse believe that Government departments throughout Australia have not been motivated to properly archive the records so that information is maintained and retrievable because to do so would open these Departments up to successful litigation. Angela Sdrinis Legal believes that there is a strong case to be made that ward and child protection records should be held and maintained by a separate entity/department.
Whilst the Royal Commission has largely focussed on historical allegations, we know that children in child protection continue to be vulnerable to abuse and sexual exploitation. Angela Sdrinis Legal acts for a number of children who have been recently abused in care. There have also been recent media reports that networks of paedophiles have been targeting and sexually abusing children in residential care units across Victoria.
Whilst the Royal Commission has said that one of its jobs is to “bear witness” with respect to the horrific wrongs of the past, we have seen that even before handing down any of its final findings or recommendations, the Royal Commission has already made a huge difference to victims of abuse and the way in which organisations are now responding to allegations. Importantly the Royal Commission also means that children of the future are likely to be safer.
8 December 2014
MENTAL ILLNESS AND INSTITUTIONAL ABUSE CLAIMS
Anybody who has a legal problem usually suffers from a certain degree of anxiety and heightened stress levels.
Clients who have suffered childhood sexual abuse often present with even higher levels of anxiety. Lawyers and other professionals who deal with victims of sexual abuse will say that these clients can require more support than is usually the case.
Without wanting to generalise, the abuse may result in behavioural and other issues. Victims of abuse can display a lack of trust of people in authority. Add to this an increased likelihood that their education was interrupted by the abuse and in the case of former wards in particular by the general chaotic nature of their lives as children which in many cases contributed to poor educational outcomes and literacy levels and you have a client with more than the usual range of challenges.
It makes sense that people who have suffered from abuse as children are more likely to suffer from problems in adulthood and increasingly studies are confirming the link between child abuse and higher rates of mental illness.
An analysis of 37 US studies of people who had suffered child sex abuse found significant numbers suffered from depression. It also showed that victims of sexual abuse suffered from a substantially increased rate of suicide. [i]
Researchers have used “twin studies” to try and filter out other childhood factors that may contribute to mental illness. A 2002 Australian twin study found that in twins where one had been sexually abused and the other not, the abused twins had significantly higher rates of major depression, attempted suicide, conduct disorders, alcohol dependence, nicotine dependence, social anxiety, rape as adults and divorce.[ii]
Other studies show that victims of child sex abuse are more likely to suffer from post-traumatic symptoms, substance abuse, helplessness, aggressive behaviours, conduct problems and eating disorders. More recently child sexual abuse involving penetration in particular has been identified as a risk factor for developing psychotic and schizophrenic syndromes. [iii]
Establishing the link between psychotic illnesses/schizophrenia and child sex abuse has been particularly difficult in the past. Until recently, the cause of schizophrenia was very much seen as being a result of physiological rather than environmental factors and there was resistance in the medical world and in the courts to link this particularly damaging illness to specific stressors and in particular child sex abuse. However, in a recent case in New Zealand the Judge considered two issues:
In finding that there was a link between the plaintiff’s schizophrenia and his childhood sexual abuse, the Judge referred to various research studies and a UK judgement of A v The Archsbishop of Birmingham  EWHC 1361 in which Justice Clarke concluded that the plaintiff in that case was suffering from schizophrenia and that the only possible cause was the sexual abuse he had suffered.
[i] The long-term effects of child sexual abuse (CFCA Paper No 11-January 2013
[iv] LS v Accident Compensation Corporation  NZACC 385 (22 November 2013)
6 November 2014
ABOLITION OF STATUTE OF LIMITATIONS IN HISTORICAL CHILD ABUSE CLAIMS
Victims of child abuse have welcomed the Coalition’s commitment to implement recommendation 26.3 of the Betrayal of Trust report to abolish limitation periods in historical child abuse claims. A draft bill has been prepared and the current Government is seeking responses by 5th December 2014.
Currently limitation periods apply in all civil litigation. This means that legal proceedings must be filed within a certain period of time. The effects of child abuse are such that limitation periods have been particularly harsh given that many victims of child abuse will not disclose their abuse until many years have elapsed after the events.
The current legislation relating to time limits in child abuse claims is harsh, complex and poorly understood. The discussion paper issued by the Attorney General states that the current legislation provides that child abuse civil claims must be brought by the earliest of:
If the alleged abuser is parent/guardian or close associate, the cause of action is deemed to be discoverable when the plaintiff turns 25 with a long stop limitation period of 12 years. This means that depending on when the abuse occurred, plaintiffs can bring their claims between the ages of 31 and 37. However transitional provisions mean that claimants can only have the benefit of the more generous provisions if their abuse occurred before May of 2003 when the legislation was amended. This means that for most victims of historical child abuse, the old limitation period applies which depending on the age of the plaintiff and when the abuse occurs required that proceedings be issued by age 21 or age 24 at the latest.
The draft bill applies to past as well as future claims of abuse and applies regardless of the age of the plaintiff and when the abuse occurred. This is a very welcome change to the current harsh, confusing and complex laws that victims of abuse have had to contend with.
Unfortunately, the coalition government failed to introduce this legislation in the current term. Indeed, none of the recommendations of the Betrayal of Trust report relating to reform of civil laws which will enable victims to have a fair opportunity to access justice in the civil courts have been implemented.
Whilst all major parties have agreed in principle to implement the recommendations of the Betrayal of Trust report, it is disappointing that victims will have to await an election and are still left with uncertainty. Having said that, the coalition government is to be commended for committing to implementing recommendation 26.3 in its entirety and without equivocation.
5 November 2014
ROYAL COMMISSION GIVES A GLIMPSE INTO ITS DELIBERATIONS
The Hon Justice Peter McLellan AM, Chair of the Royal Commission into Institutional Responses to Child Abuse gave a wide ranging speech for Blue Knot Day for Adults Surviving Child Abuse. Justice McLellan spoke about what the Commissioners have learnt. He said that the picture emerging was that although sexual abuse of children is not confined in time-it is happening today- there was a time in Australian history when the conjunction of prevailing social attitudes to children and an unquestioning respect for authority of institutions by adults coalesced to create a high risk environment in which thousands of children were abused. Justice McLellan also said that although the primary responsibility for the sexual abuse of an individual lies with the abuser and the institution of which they were part, the conclusion that the problems faced by many people who were abused are the responsibility of society cannot be avoided.
It is clear from the speech that the Commissioners have formed the view that any response must involve three fundamental elements:
First, for those who wish it, there should be an opportunity to engage with the institution where they were abused and receive a meaningful apology and be otherwise supported in a spiritually and culturally appropriate manner.
Secondly, there is a clear need for any survivor to have access to counselling or psychiatric care as they may need it during their lifetime. On this point, Justice McLellan acknowledged that currently there is limited availability of trained professionals with appropriate experience and limited funding for victims to avail themselves of appropriate treatment throughout their lives. Justice McLellann said, “By some means, funding must be found which ensures that professionals are available to keep people alive and otherwise provide them with the capacity to function effectively.”
Thirdly there is a need of survivors to receive a lump sum payment which marks the abuse and recognises the failure of the institution to keep the person safe as a child.
Justice McLellan then went on to discuss some of the difficulties involved in providing redress including that some institutions no longer exist or have limited or no funds. Justice McLellan said that the “inevitable consequence is that the community must look both to governments and the institutions to come together to provide a response which provides appropriate redress for all who have suffered sexual abuse as children in an institutional context.”
Survivors and their advocates will learn more of the Commissions recommendations in January of next year when it anticipates publishing a paper on these issues.
Justice McLellan’s full speech can be found on the Royal Commission website www.childabuseroyalcommission.gov.au.
29 September 2014
Archbishop Hart’s Review of the Melbourne Response a Delaying Tactic.
The Catholic Church and other religious institutions have come under sustained pressure to revisit their settlement processes and to re-open claims that have already been settled. In this context the Christian Brothers have already invited people who have settled their claims to come forward and seek further compensation.
It was widely expected that the Melbourne Archdiocese would make a similar announcement with Chrissie and Anthony Foster lobbying hard for this to occur. Unfortunately rather than announce that claims will be re-opened, Archbishop Dennis Hart has announced a review of the compensation payment process of the Melbourne Response.
The Melbourne Response was established in 1996 by then Archbishop George Pell to compensate victims of sexual abuse within the Melbourne Archdioceses of the Catholic Church in response to what seemed to be a wave of sexual assault allegations. Many would say that it was actually an avalanche the effects of which are still being seen today.
The Melbourne Response operated very effectively for a long time in terms of containing the cost of sexual abuse claims with the maximum payable being initially $50,000 which later increased to the current maximum of $75,000. Some would also say that the Melbourne Response operated to protect the Catholic Church brand and to ensure that the fallout from sexual abuse allegations was also contained.
The Royal Commission has shown however that the maximum payments under the Melbourne Response are derisory when compared with what some claimants have been able to extract from the Catholic Church where the allegations were sufficiently embarrassing. The Royal Commission has also put the Church under enormous pressure to be seen to be doing the right thing, even though the Royal Commission has not completed its investigations and is yet to hand down its recommendations.
Archbishop Hart has appointed a retired Federal Court Judge Donnell Ryan QC to undertake the review of the Melbourne Response. The Terms of Reference are as follows:
The announcement of the review is disappointing. The Catholic Church should know by now what needs to be done. A review is just delaying the inevitable and a way of diluting responsibility for any changes that are ultimately made.
The Catholic Church also knows that for many victims there is no more time. Evidence before the Victorian Parliamentary Inquiry into the abuse of children by non-Government and Religious Institutions and the Royal Commission into Child Sex Abuse of suicide and severe mental health issues caused by clerical abuse is mounting and further delay can only exacerbate these problems.
15th August 2014
Amendments to the Children, Youth and Families Act
Amendments to the Children, Youth and Families Act by the Children Youth and Families Amendment (Permanent Care and Other matters) Bill 2014 have now been passed. In a press release (http://www.marywooldridge.com/Media_Detail.asp?ID=609), the Minister for Community Services said:
“Reform to the Children, Youth and Families Act will:
However, many involved in the protection of children do not believe that these changes are in the best interests of vulnerable children because the proposed amendments give more power to the Department of Human Services and less to the Children’s Court in managing complex child protection matters.
The Law Institute of Victoria, in a submission on the bill (http://www.liv.asn.au/For-Lawyers/Sections-Groups-Associations/Practice-Sections/Family-Law/Submissions/Submission-Children--Youth-and-Families-Amendment-?glist=0&rep=1&sdiag=0), raised five principal concerns about the amendments:
“(a) the diminishment of the ability of the Court to exercise its statutory functions and to review the decision making of Department of Human Services (“DoHS”);
(b) the increase in the ability of DoHS to assume parental rights and responsibility for children involved in the Victorian Child Protection System;
(c) the repeal of the obligation on DoHS to implement services for the benefit of children and families;
(d) the repeal of the Court’s ability to make conditions on the new Care by Secretary Orders, such conditions previously ensuring that children can regularly and with certainty have contact with their parents from whom they have been removed;
(e) the limitation on the Court to order contact on a Permanent Care Order no more than 4 times per year.”
One of the fundamental difficulties in giving DoHS more power is that when abuse or sexual exploitation of children in care occurs, it is DoHS which deals with the complaint in the first instance. In other words, DoHS can be in a conflict situation where reports of abuse occur because the complaint may involve DoHS staff directly or may be a result of a failure of duty of care on the part of DoHS.
Further, contact with family is essential to ensure that there is someone close to the child who can raise issues and advocate on behalf of the child. Further, return to a child’s birth family (where possible) is the best outcome for a child and his or her family, and regular ongoing contact with a child’s birth family is more likely to ensure reunification, even if for extended periods of time a birth parent(s) cannot care for their child.
There is also a concern that where Aboriginal children are involved there remains no statutory provision for an Aboriginal guardian to be appointed. We do not want to see today’s Aboriginal children becoming the modern version of the Stolen Generations because as a result of removal they lose all contact with their culture and their family of origin.
There is also concern that proposed Family Reunification orders overall have a significantly limited time-frame of 24 months in which reunification of the child must occur. Under the amended Act, this period of 24 months cannot be extended by the Court. This means that the Court cannot take into account the difficulty many will encounter in accessing services which DoHS is no longer obliged to provide to implement the changes required to have the children returned to a parent’s care.
Recommendations of the Betrayal of Trust Report must be Implemented.
In other developments, a forum was held in Melbourne by COIN at which representatives from the Coalition Government, the ALP and the Greens outlined their party’s policies with respect to the implementation of the recommendations of the Betrayal of Trust report.
Whilst all parties have committed “in principle” to implementing the recommendations, sadly the two major parties were short on concrete commitments regarding the timing and actual implementation of specific recommendations. Whilst the Coalition Government which was represented by the Attorney General Robert Clarke did not say that it would await the outcome of the Royal Commission before implementing all the recommendations, he did make it clear that his Government intended to work hand in hand with the Commission. Further he refused to be drawn on timing even when it became apparent that there are only 12 sitting days of parliament left before the next election and it appears that Parliament already has a full legislative program. Indeed, Clarke refused to be drawn on timing even when Bryan Keon Cohen, president of COIN, sought a commitment to schedule an extra sitting day so that the recommendations of the report could be dealt with.
There was also a lack of detail from the ALP which was represented by the spokesperson on Community Services Jenny Mikakos. Ms Mikakos also supported the recommendations in principle but indicated that the ALP would not be proposing any legislative change until the Royal Commission handed down its interim report on civil litigation. Having said that, the Shadow A-G, Martin Pakula has indicated that the ALP is working towards more concrete proposals as to the implementation of the Betrayal of Trust recommendations.
There is an election in this state in November. Victims and their supporters should contact their local members and/or the Premier (Dennis Napthine), the A-G (Robert Clarke), the Minister for Community Services (Margaret Wooldridge), the shadow A-G (Martin Pakula) and the shadow minister for Community Affairs (Jenny Mikakos) to seek commitments before the next election that the recommendations of the Betrayal of Trust report will be implemented in full during the next term of Government. Contact details for all members of parliament can be found here: http://www.parliament.vic.gov.au/members/.
Institutions respond to the Royal Commission Issues Paper on Redress Schemes
August was a busy week for those of us who have been involved in advocating for the rights of victims of institutional abuse.
The Royal Commission into the institutional abuse of children publicly released submissions made with respect to the issue of Redress Schemes and the importance of victims having access to compensation. (http://www.childabuseroyalcommission.gov.au/submissions/752/issues-paper-6A)
A national, independent, redress scheme or reparations tribunal is a vital part of justice for victims of abuse and many of the submissions supported the implementation of a redress scheme, provided that victims would retain the choice of accessing compensation through a redress scheme or having the right and the ability to pursue their claims in court. The Royal Commission has previously called on submissions on the barriers to justice in our current civil litigation arrangements. (http://www.childabuseroyalcommission.gov.au/submissions/314/issues-paper-5,-civil-litigation) These submissions have underlined the difficulties that many victims of historical abuse have in pursuing their claims in courts of law.
One of the submissions on redress schemes which has attracted a lot of attention is from the Catholic Church. (http://www.childabuseroyalcommission.gov.au/getattachment/ff10e21b-a871-4a58-8dd8-1f43764c4f44/82-Truth-Justice-and-Healing-Council. The Church’s responses to the Royal Commission have been followed with interest, not least because it was the sex abuse scandal within the Catholic Church which led to the establishment of the Royal Commission.
One of the significant issues for victims is proving their allegations. Sexual abuse usually happens behind closed doors and in the case of historical abuse, locating witnesses, unreliable childhood memories and a lack of or destruction of documentation can all mean that victims will struggle to prove their allegations as required by a court of law which in civil proceedings is “on the balance of probabilities. Notwithstanding recognition that problems of proof is one of the reasons we need a redress scheme, the Catholic Church strangely still recommends a balance of probabilities test for a redress scheme.
The Salvation Army on the other hand refers to a plausibility test (http://www.childabuseroyalcommission.gov.au/getattachment/e56fff77-02a1-4f45-8590-a0c94b5b473d/55-Salvation-Army-Australia) which is of a much lower standard and is consistent with other redress schemes which have been established in this country and elsewhere including with respect to the Defence Abuse Taskforce which has the following test:
“The Taskforce must be satisfied that the person plausibly suffered abuse or had their allegation of abuse mismanaged by Defence. To meet the threshold test of plausibility, the Taskforce must be satisfied that the claim of abuse and/or mismanagement has the appearance of reasonableness.”
Another important issue is the question on whether there should be a cap on compensation and how levels of compensation should be assessed. The Catholic Church recommends that there is a cap which is in line with community standards’
A cap of itself limits the capacity of an independent tribunal to apply community standards which will vary depending on the nature of the abuse, the culpability of the institution and the damage done to the victim. On the other hand a cap minimises or “caps” the cost to the institution.
A properly instituted and independent Tribunal will develop its own precedents and guidance to victims and their representatives as to how or particular claims should be assessed.
The Catholic Church submission also speaks of “limited free legal advice” for victims. It does not refer to the capacity of the Church to obtain and rely on legal representation and advice and whether this should also be “limited”. The scheme can only be just if both sides have the power to brief and rely on the best lawyers. Otherwise the same imbalance of power that has led to the discrediting (and now abandonment) of the Catholic Church processes Towards Healing and Melbourne Response, may replicated in another body.
9 July 2014
Australia is yet to see a court victory for victims of sexual abuse where a religious institution has been held liable for a group of victims who allege sexual abuse from serial clerical abusers. However last month in Canada a Montreal court ruled that the Redemptionist Order was liable to pay at least $75,000 in damages to each victim who attended a seminary run by the Order between 1960 and 1987 (http://www.ctvnews.ca/canada/
The ruling is in relation to a class action which was brought by the victims who alleged they had been sexually abused in the seminary. Class actions are the best vehicle for pursuing litigation where there are a group of victims who allege injury against a particular defendant with that injury occurring in similar circumstances for all members of the group but in Australia it has been hard to find sufficient similarity in the facts and law applying to each member of a group of victims of historical abuse to satisfy our strict class action rules. This means that until recently no abuse claims have been launched under the class action rules because the facts in each victim’s case are usually unique. The law which applies can differ depending on when the incidents occurred. As we can see in the Redemptionist case, the abuse occurred over 28 years. If these claims had been brought in Victoria for example, the legislation relating to extension of time applications (an extension of time is required to allow plaintiffs to pursue historical abuse claims in our courts) would have changed during that 28 year period. Accordingly, a Judge may well find that even if the facts were similar, there would not be sufficient similarity in the law applicable to each member of the group for a class action to be pursued.
Part IVA of the Federal Court of Australia Act 1976 (Cth) which contains the class action provisions, came into effect on 5 March 1992. It set out detailed provisions for the commencement and conduct of class actions. Section 33C sets out the threshold requirements for the commencement of a class action:
(a) There must be claims by seven or more persons against the same person.
(b) The claims must arise out of the same, similar or related circumstances.
(c) There must be substantial common issues of law or fact.
Similar provisions apply in state jurisdictions. The Supreme Court in NSW has recently ruled that a group of victims of abuse at the Fairbridge Farm School can pursue a class action.( Giles & Anor v Commonwealth of Australia & Ors proceeding 2009/329777). A class action was filed on behalf of approximately 60 victims who lived at a Home run by the Fairbridge Foundation between 1938 and 1974. Judge Garling who heard the application which commenced in 2009 said, “I am satisfied that the most efficient and cost effective disposition of these claims is be a representative proceeding as it is presently constituted.
The Defendants, which consisted of the Faribridge Foundation and the NSW and Commonwealth governments, vigorously fought the application for the matter to proceed as a class action. Whether it will be possible to pursue claims of historical abuse as class actions in other jurisdictions remains to be seen. However it is clear from the Fairbridge case that if class actions are to be brought in historical abuse claims, it is necessary to select the members of the class very carefully as any significant differences in the facts and law applying to each member of the class is likely to mean that the class action is doomed to failure. Now that the Fairbridge victims have been certified as a class, victims of institutional abuse are awaiting the outcome of the substantive claim as to whether damages will be awarded to each member of the class and how those damages will be assessed.
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