9 June 2018
The UK Independent Inquiry Into Child Abuse (IICSA) Recommends a Compensation Scheme for Child Migrants
In an interim report, IICSA has recommended to the UK Government that it set up a financial redress scheme for survivors of the Child Migrant Programme, which resulted in 130,000 British children were forcibly deported to Australia and other Commonwealth countries where they were subjected to hard labour and in many cases experienced severe physical and sexual abuse.
IICSA concluded in its interim report that the post war child migration was a "fundamentally flawed policy" and the Government "failed to ensure that there were in place sufficient measures to protect children from sexual abuse (as well as other forms of abuse and neglect)."
The IICSA panel called on the Government to establish a redress scheme without delay, with payments to be made within the next 12 months to provide an equal award to every applicant, as it concluded all were exposed to the risk of sexual abuse.
If you were a child migrant and you wish to claim compensation on any UK scheme that is established, please complete our institutional abuse registration form here: http://www.angelasdrinislegal.com.au/sexual-and-institutional-abuse-registration-form.html
Child migrants may also be the first cabs off the rank in the shortly to be established National Redress Scheme (see previous blogs).
22 May 2010
The Tasmanian Government to Opt into the National Redress Scheme
The Tasmanian Government announced on 22 May 2018 that it will be opting into the National Redress Scheme (NRS) and that as of 1 July 2018 limitation periods with respect to child abuse claims, which has stood in the way of survivors applying to the courts for damages, will be removed.
In recent weeks pressure had mounted on the Government in Tasmania to end their delays in taking these steps. There has been pressure on the Government through numerous newspaper articles, as well as in television https://youtu.be/7jTDSL_cn6w. Angela Sdrinis Legal has worked with Ella Haddad, the Shadow Attorney-General in Tasmania, as well as the leader of the Greens, Cassy O’Connor, who have applied pressure through the media and within Parliament, publicly and behind the scenes.
With regard to the Redress Scheme, the Government has said that prior settlements will be offset against any award of compensation under the NRS. The bill establishing the redress scheme provides that prior settlements must be adjusted for inflation and any award under the scheme will be reduced by the notional amount arrived at. Further, we know that whilst the maximum payable under the NRS will be $150,000, the Minister has stated that the average payment will be around $75,000. This means that a survivor of abuse who received an abuse in care payment under the Tasmanian Ombudsman Scheme after indexation may be close to or above the average payment and therefore receive no further or little additional compensation under redress. This will be a slap in the face for many survivors who have campaigned for the royal commission and redress but who will not have the benefit of the legislative changes like the abolition of limitation periods which means that now they could get their cases into court but as they have signed binding releases, they will be locked out of any further claim other than through the NRS.
We have other ongoing reservations regarding the NRS. Criminal convictions of five or more years will remain a bar to the accessing Redress payments, however it has been announced that the Government will look at individual cases for possible exemptions. The Attorney-General will be able to provide an exemption, however it is yet to be made clear what circumstances will lead to an exemption.
The removal of the limitation period means that survivors of abuse can now take action against those responsible for their abuse in Court. Importantly, it also provides the basis for the establishment of a protocol for out of Court settlements with the Tasmanian Government and other institutions. We hope that there will be further announcements shortly around how the Government will approach out of Court settlements to provide more certainty to survivors about their various rights.
Angela Sdrinis Legal will be opening its Tasmanian office on Monday June 25th 2018 where we will provide confidential, personal, face to face advice to Tasmanian survivors of abuse.
21 May 2018
Can Medical Records be Subpoenaed in Sexual Abuse Cases?
Angela Sdrinis Legal is currently acting for victims of alleged sexual assaults in an Ashram. The five plaintiffs in these applications have brought proceedings in the County Court to recover damages for alleged sexual assault by the second named defendant whilst they were at an ashram conducted by the first named defendant.
On 30 January 2018 the second named defendant's solicitors issued a series of subpoenas to various plaintiffs' medical practitioners and counsellors seeking production of documents to the Registrar of the Court. In total 16 subpoenas were issued. Objections to those subpoenas were made by the plaintiffs and some of their treaters.
On 20 March 2018, Judicial Registrar Gurry set aside each of the subpoenas after hearing argument from the respective parties' representatives. The issue of whether leave was required pursuant to section 32C of the Evidence (Miscellaneous) Provisions Act 1958, (the EMPA) from a court prior to issuing the subpoena was referred to be determined by Judge Carmody who handed down his ruling on 2 May 2018 in an unreported decision.
The starting point in these applications was the definition of confidential communications under the Act being as follows:
“Confidential communication” means a communication, whether written or oral, made in confidence by a person against whom a sexual offence has been, or has alleged to have been committed, to a registered medical practitioner or counsellor in the course of the relationship of medical practitioner and patient or counsellor and client, as the case requires, whether before or after the acts constituting the offence occurred or are alleged to have occurred.
Judge Carmody found that the communications between any and all of the plaintiffs in these applications and their respective medical practitioners and counsellors were confidential communications under the EMPA. In addition, Judge Carmody found that under s32C and 32D, “legal proceeding” included any civil, criminal or mixed proceeding. Judge Carmody also noted that the statutory provisions override any common law principles relevant to waiver of medical privilege in these cases.
The statutory regime set out in section 32C of the EMPA is the overriding matter for determining if leave to serve a subpoena is to be granted. Judge Carmody said that the defendant had to satisfy the court on the balance of probabilities that:
(1) the clinical records will have substantial probative value to a fact in issue;
(2) Other evidence of similar or greater probative value is not available, and;
(3) The public interest in preserving confidentiality of confidential communications and the protected confider from harm is substantially outweighed by the public interest in admitting the production of the records.
In summary, it is clear that s32C of the EMPA applies in civil and criminal cases and that defendants are required to seek leave to subpoena records that contain confidential communications in sexual assault claims. Provision of part clinical records and/or reports by a plaintiff does not mean that privilege is waived in relation to clinical records not served. However, a judge will consider the probative value of the evidence being sought and will weigh up the public interest in preserving confidentiality and whether this is outweighed by the public interest in admitting the production of the records.
11 May 2018
Final Redress Legislation tabled in Federal Parliament
Dan Tehan, the Minister responsible for the National Redress Scheme (NRS) tabled legislation to establish the scheme to federal parliament on Wednesday coinciding with the Victorian Government’s legislation to refer powers which was tabled in Victorian parliament earlier this week.
Media reports confirm that the average payment will be $76,000 (https://www.sbs.com.au/news/sex-abuse-redress-scheme-hits-parliament) and that on 1 July 2018, the first eligible applicants will include 1,000 people abused in Commonwealth government institutions, 9,000 in NSW, 5,000 in Victoria and 200 in the ACT.
These numbers do not include survivors of abuse in non-Government institutions. These institutions will need to “opt in” to the scheme and as yet none of the major institutions involved in the care of children have clearly committed to opting into the scheme. Mr Tehan said detailed negotiations with other state and territory governments and non-government institutions including churches and charities were ongoing.
10 May 2018
Transferring the custody of Royal Commission Records
The government will provide $500,000 in 2018-19 to transfer custody of the records of both the Royal Commission into Institutional Responses to Child Sexual Abuse and the Royal Commission into the Protection and Detention of Children in the Northern Territory to the Attorney-General’s Department.
A National Apology to the Victims of Institutional Child Sexual Abuse
The government will provide $1.6 million over two years from 2017-18 to develop and deliver a national apology to the victims of institutional child sexual abuse.
Funding was also set aside in last year’s budget for the proposed National Redress Scheme and for the continued operation of the Knowmore Legal Service which was established to support victims of institutional abuse.
10 May 2018
Victoria has introduced legislation to opt in to National Redress
The Victorian Government has introduced legislation which means that Victorians are a step closer to being able to participate in the proposed National Redress Scheme (NRS). (http://www.legislation.vic.gov.au/domino/Web_Notes/LDMS/PubPDocs.nsf/ee665e366dcb6cb0ca256da400837f6b/96937d40d7578c00ca258287007bf1fd!OpenDocument)
Under the Victorian National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018, the Government will refer powers to the Commonwealth to ensure that Victorian state institutions participate in the scheme. As part of the scheme, eligible survivors of institutional child sexual abuse will be able to seek a range of redress options including monetary payments of up to $150,000, access to counselling services, and direct personal responses including an apology from the institutions or organisations responsible for their abuse.
The Victorian Government has also abolished civil claim time limits to allow lawsuits to be lodged regardless of how long ago the abuse occurred and introduced an Australian-first ‘duty of care’ for organisations exercising care, supervision or authority over children. A bill has also been introduced by the Government which if passed will force religious and other institutions to nominate a legal entity that can be sued and that has assets to satisfy any judgement.
Whilst all of these changes are very positive, there are concerns that many survivors of institutional abuse who have had prior settlements, whilst eligible to claim a top up, will be told that they will not receive a further payment or any further payment will be modest. This is because amounts received in the past will be indexed for inflation and with the maximum payment of $150,000 only likely to be paid to a very few and average payments expected to be around $75,000 many claimants with prior settlements will be left in the cold with no option to take their matters to court because of prior deeds of settlement which remain binding.
We call upon the Victorian Government to continue with its very positive reforms in this area by passing legislation which allows judges to set deeds aside “where it is just and reasonable to do so.” The Queensland Government has passed such legislation as has the Western Australian Parliament (yet to be proclaimed). This would be the final change which would go a long way to delivering real justice to historical institutional abuse victims.
1 May 2018
Redress Scheme Becoming a National Reality
Victoria and New South Wales were the first states to get on board with the National Redress Scheme (NRS) which is being established by the Federal Government following recommendations by the Royal Commission into Child Sex Abuse and is due to commence on 1 July 2018.
The Queensland Government has now announced it is opting in and that it is setting aside $550,000,000 to cover its potential liability under the NRS. (https://www.theguardian.com/australia-news/2018/apr/30/queensland-promises-550m-to-redress-scheme-for-sexual-abuse-survivors). The Northern Territory has also announced it is opting in to the scheme and expects that there will be around 1,000 claims made on the NT government by victims of child abuse (https://www.katherinetimes.com.au/story/5370254/nt-to-join-child-sexual-abuse-survivors-scheme/).
The Western Australian Government is also close to joining up amidst mounting pressure on the remaining states including Tasmania and South Australia which are yet to commit. Before committing to the NRS, the Western Australian government requires clarity as to who will be responsible to compensate child migrants who were brought to Australia by the Commonwealth but were then placed in institutions in various states including Western Australia where many suffered horrific abuse (https://thewest.com.au/news/wa/wa-on-cusp-of-joining-national-child-sexual-abuse-redress-scheme-as-queensland-and-northern-territory-sign-up-ng-b88821075z).
27 April 2018
Bill To Abolish Statute of Limitations Passes both Houses in Western Australia
On 22 November 2017, the Western Australian Government introduced a Bill, taking its first steps towards abolishing the statute of limitations that have severely impacted an abuse victims ’ access to civil justice.
Now, 4 months later, on 10 April 2018, the Bill was agreed to by the Legislative Assembly and will come into operation following Royal Assent and Proclamation.
In a first for Australia, the Bill provides a legal basis for suing institutions for historical child sexual abuse in the name of the current officeholders. It highlights the legal difficulties present in suing an unincorporated institution. Many of the churches and other institutions where children were abused, were not at the time of the abuse, incorporated. Provisions within the Bill provide a means to overcome the difficulties that a victim may face in identifying a proper defendant, particularly those arising out of the lack of continuous succession in unincorporated institutions as identified in the New South Wales Court of Appeal decision of Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis and Another (2007) 70 NSWLR 565.
The Bill also includes provisions overriding certain sections of the Federal Corporations law, which will enable office-holders to access the assets of related trusts and corporations for the purposes of satisfying the judgment amount.
Furthermore, the term “sexual abuse’ is intentionally left undefined within the Bill. As a result, the court will have the latitude to determine the application of the term in accordance with the ordinary meaning and common understanding. Therefore, a court will not be confined to acts or omissions that are criminal offenses. This is consistent with the focus of the Royal Commission and its Report.
The Bill also provides avenues to deal with matters that were previously settled and provides the victim an opportunity to make applications for previous settlements to be set aside. This will, of course, open the floodgates for many claims which have in the past been forced to settle for a mediocre amount.
Most importantly, it is well documented that many survivors of child sexual abuse do not disclose their experiences or act on them until decades after the abuse, therefore, this Bill provides the removal of an important barrier, allowing survivors of child sexual abuse the opportunity to seek justice and compensation in our civil courts, regardless of time that has passed.
However there is more work to be done in Western Australia which is yet to sign up to the Commonwealth redress scheme for victims of institutional child sex abuse because the WA Government has expressed concerns about how the scheme, which has a $150,000 cap, will apply to child migrants and child sex abuse survivors with criminal convictions. Victoria and New South Wales are the only states as yet which have formally committed to the national redress scheme which is due to commence on 1 July 2018.
24 April 2018
UK Inquiry recommends compensation for Child Migrants
The United Kingdom Independent Inquiry into Child Abuse (IICSA) has issued its report into the Child Migration Programmes of the 40’s and the 50’s. The full report is available at https://www.iicsa.org.uk/key-documents. IICSA has made three recommendations for the British Government to consider:
At the same time, the National Redress Scheme in Australia should commence on 1 July 2018 at least insofar as abuses that occurred with a sufficient nexus to the Commonwealth. Angela Sdrinis Legal has established a register for child migrants to enable claims to be lodged and processed with priority.
23 April 2018
National Redress Scheme Senate Review
The bill establishing the National Redress Scheme (Institutional Child Sexual Abuse Bill 2017) has been reviewed by a Senate Committee which has recommended the passage of the Bill with some suggested changes.
Purpose of the Bill
To provide an alternative mechanism, outside the civil law framework, in which survivors of institutional child sexual abuse may seek redress. This means that these survivors, whom may have been road blocked from seeking redress within the strict parameters of the law, may now seek relief under the National Redress Scheme (“the Scheme”). The Scheme is intended to operate for 10 years.
Redress Scheme Elements
Clause 16 outlines the eligibility criteria for redress as the following:
a) The person was sexually abused;
b) The sexual abuse is within the scope of the scheme (that is, occurred when the person was a child, inside or outside Australia, before the start of the scheme, a participating institution was responsible); and
c) The person is an Australian citizen or permanent resident at the time the person applies for redress.
Limitations of the Scheme’s eligibility criteria
There are concerns that the scheme offers redress to survivors of sexual abuse only. Physical, psychological, cultural abuse or neglect are considered only as “aggravating factors” to the primary sexual abuse. This strict definition of abuse diminishes the deep and often life long impacts of non-sexual abuse on survivors.
The Scheme precludes survivors who have committed a sexual offence or another serious crime (drug, homicide or fraud) from applying (clause 16(3)). This exclusionary provision has been greatly contested by submitters. The conflict lies within the Government wanting to manage community expectations around pay outs being awarded to convicted persons and enabling institutions to avoid liability entirely with regard to this particular class of survivor.
Eligibility for redress is contested and the committee has put forth recommendations 4 and 9 (see below) to broaden the Scheme’s eligibility criteria and reflect the broader intention of the bill to extend the margins of relief.
The Scheme has a participant “opt-in” structure. That is, state governments and institutions must voluntarily elect to participate in the scheme before a person may be able to pursue redress.
Limitations of the “opt-in” nature of the Scheme
There is no incentive or time pressure for institutions and state governments to commence participation early.
In addition, there is particular concern with regard to the piecemeal structure of the Church that would mean that every single entity, rather than a single representative body, would have to voluntarily sign up to the Scheme. This would inevitably be a tedious process that would promise frustrating inconsistent sign-up success.
A survivor is limited to making a single application for redress. The “opt in” nature of the Scheme, that allows state government and institutions up to 2 years to elect to participate, could mean that the survivor could be put on hold for 2 years, waiting to see whether the remaining institution signs up to the Scheme before lodging their application.
The Legislation Committee tabled recommendation 1 (below) with regard to modifying the opt-in nature of the Scheme.
Forms of Redress and Monetary Compensation
Subclause 18 (1) of the Scheme outlines the three elements of redress:
a) Payment of up to $150,000;
b) Access to counselling; and
c) A personal response from the institution to the survivor
Limitations of the Forms of Redress
The cap of $150,000 is substantially less that recommendation proposed by the Royal Commission, which stands at $200,000 with an average pay out of $ 65,000. The Scheme does not propose a minimum pay out amount.
The assessment matrix of calculating the amount of compensation has yet to be released.
Standard of Proof
Clause 15 of the bill outlines the standard of proof as “a reasonable likelihood that the person is eligible for redress under the scheme”. “Reasonable likelihood” is defined as “the chance of an event occurring or not occurring which is real- not fanciful or remote”. This threshold is lower than the civil standard of proof being “on the balance of probabilities” to execute the bill’s intention to distinguish the scheme from civil law processes and minimizing survivor trauma through expediting the decision-making process.
Deeds of Release
A person who accepts an offer is required to release the institution(s) from further liability. Despite the forming of a deed of release upon acceptance, the Minister in his comments, stated that past deeds of release will be waived by participating institutions.
Legislation Committees’ Recommendations to Amend the Bill
The Committee put forth eleven recommendations to amend the tabled bill. The committee’s recommendations, that highlight some of the limitations of the bill, are as follows:
1. The two-year limitation of institutions opting -into the scheme be abolished as a means to encourage on-going institutional participation;
2. The Department ensures the flow of communication between themselves and the survivors’ representative groups with regard to the evolving rules of the Redress Scheme;
3. The Department actively engage with survivors’ representative groups, the media, and the community at large, particularly when communicating redress amounts which should focus on the average redress payment amount rather than the maximum;
4. The Department factor in the long-term impact of non-sexual abuse on survivors, including the needs of Indigenous survivors;
5. The Government to consider setting up avenues of ongoing counselling;
6. The Redress Support service be extended to the survivor’s affected family members;
7. The minimum time frames regarding the provision of documents or answers to an offer of redress should be adjusted to account for any survivor living in a remote community, encounter communication barriers and those survivors who are experiencing abuse related trauma or mental health episodes;
8. The time restriction of survivors accepting the redress offer be extended from 3 months to 6 months, including a provision to apply for a further time extension;
9. The Government should acknowledge the Redress Scheme as a mechanism for survivor rehabilitation and as such, re consider its stance against the exclusion of serious criminal offenders which creates the consequence of institutions avoiding liability to this class of survivors;
10. The annual report to Parliament regarding the performance and operation of the Scheme, should include data concerning the number of applications received, average pay out amount and average processing time to facilitate the ongoing operational improvement; and
11. The committee recommends the bill to be passed.
23 April 2018
Maximum Compensation Doubled under Anglican Redress in Tasmania for Survivors of Abuse
On 17 April 2018, the Anglican Bishop of Tasmania Richard Condie came out in an opinion piece urging the Tasmanian Government to opt into the National Redress Scheme (NRS) (https://www.theadvocate.com.au/story/5347194/tasmanian-child-sex-abuse-victims-lawyer-slams-state-government-inaction). So far only Victoria and New South Wales have committed to the scheme with the Tasmanian Government saying only that the scheme is being actively considered by the Tasmanian Government. (The Advocate 22 April 2018).
Angela Sdrinis Legal wrote to Bishop Condie last year asking him to increase the then maximum compensation payable under the Anglican Redress Scheme from $75,000 to $150,000 consistent with moves of the Melbourne Anglican Archdiocese and in anticipation of the maximum payment expected in the NRS. The Diocese lawyers wrote back advising that at that time, it was not possible for the Anglican Church in Tasmania to go outside its then maximum payment of $75,000.
On seeing Bishop Condie’s opinion piece, with which we agreed, we wrote a letter to the editor pointing out that there was nothing to stop the Anglican Church in Tasmania immediately increasing its maximum payment as we had requested that it do last year. That night we received a letter from the Professional Standards Office of the Anglican Church of Tasmania advising us that the maximum would be immediately lifted to $150,000. The details of the new Tasmanian Anglican Redress Scheme are yet to be announced . Bishop Condie also announced that survivors who have already settled their claims through the Tasmanian redress scheme will be able to claim “top ups”(again consistent with the NRS).
In the Advocate yesterday, Bishop Condie indicated that the church in Tasmania would be selling off up to 120 properties to fund redress claims (https://www.theadvocate.com.au/story/5356561/anglicans-to-sell-more-than-120-properties-for-redress-scheme/?cs=12). Bishop Condie is to be congratulated for finally taking serious steps to right some of the past wrongs that have been perpetrated by the Church against victims of child sex abuse.
30 November 2017
Western Australia and Tasmania to abolish time limitations
The Royal Commission identified that the strict time limits imposed upon survivors to bring a civil action were particularly problematic for victims of child sexual abuse. The Commission demonstrated that many survivors delay disclosure for years and even decades. Accordingly, it recommended that the State Governments move to legislate the removal of the statute of limitations.
On 22 November 2017, the Western Australian Government announced its first steps towards abolishing the statute of limitations that have severely impacted abuse victims’ access to civil justice in Western Australia.
Prior to this, victims of child sex abuse had merely three years from the time they turned 18 to pursue a civil action. Those who failed to make a claim within this time frame lost their rights to do so.
Attorney general, Mr Quigley noted that the Royal Commission had highlighted the fact that Western Australia was “behind the game” with respect to the other states, which had already lifted the time limitations. The Western Australian bill not only lifts the time limit on bringing an action but allows for the court to set aside previous settlement agreements or court orders. These would include payments made under the various ex gratia and redress schemes administered by the state, commonwealth or other states and territories; criminal injuries compensation awards; and ex-gratia payments and compensation payments made by non-government institutions.
In a first for Australia, the bill provides a legal basis for suing institutions for historical child sexual abuse in the name of the current office holders. At present, there are legal difficulties in suing an unincorporated institution. Many of the churches and other institutions where children were abused were not at the time of the abuse, incorporated. The provisions within the bill assist to overcome the difficulties that a victim may face in identifying a proper defendant, particularly those arising out of the lack of continuous succession in unincorporated institutions as identified in the New South Wales Court of Appeal decision of Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis and Another (2007) 70 NSWLR 565.
However, it is important to note that the Western Australian bill is more restrictive than those enacted in other states as it excludes physical, psychological or emotional abuse.
On 21 November 2016, Will Hodgman, Premier of Tasmania, announced that his government would start drafting a Bill to reform current limitation laws for child abuse victims. On 1 November 2017, the Bill was tabled to lift the time limitations, enabling victims of abuse to bring a civil action. The abolition of the limitation period in this bill extends to physical abuse and psychological abuse, with an understanding that both types of abuse may occur in conjunction with sexual abuse. This bill extends the abolition of the limitation period to all survivors of childhood sexual or serious physical abuse, not just those who suffered abuse in an institutional setting, bringing Tasmania in line with Victoria, New South Wales, Queensland and the Northern Territory.
Unfortunately, this bill does not allow those who have already had a final judgment or out of court settlement, to pursue a civil action. The Government has stated that this aspect would require further consideration.
The Tasmanian Government has also decided not to introduce a provision which would allow a claimant to pursue a claim where the action had previously been brought and defeated on the basis that the time limit had expired.
What does this all mean for survivors of abuse?
It is anticipated that both the Tasmania and Western Australian bills will open the doors to thousands of victims who suffered horrific abuse during their childhood, whilst under the care of various religious institutions and government entities.
Whilst welcomed, both bills have some way to go before they completely embrace the provisions required to fairly and properly provide civil justice to all victims of historical abuse.
South Australia yet to come to the table
Nearly a decade ago, following three years of hearings and millions of dollars, the Mullighan Report was handed down in South Australia. The report established that children in care in South Australia had suffered unspeakable sexual abuse and that there was a persistent failure of the state to protect the children in its care. Fast forward to today, in a moment of deja vu, where we are once again faced with immense time and dollars spent, this time on a Royal Commission into Institutional Responses to Child Sexual Abuse. The Commission provided explicit recommendations relating to the abolishment of time limitations which seem to have fallen on the deaf ears of the South Australian Government. Although the pressure to fall into line with the rest of the country is continuing to mount, the South Australian government remains shamefully unmoved.
6 November 2017
Further Delays in Northern Ireland's Historical Abuse Compensation Scheme
Northern Ireland has received recommendations to establish a redress scheme for victims of historical child abuse following a report by the Historical Institutional Abuse Inquiry, led by Anthony Hart, which outlined a series of recommendations after sexual, physical and emotional abuse was revealed to have taken place at church and state-run institutions between 1922 and 1995. Among the recommendations was a proposal that abuse survivors should receive compensation ranging from £7,500 to £100,000 each as part of a compensation package.
These recommendations were made in January to the Northern Ireland Assembly to award compensation to victims and survivors.
However, just days after the inquiry’s report, powersharing collapsed in the Northern Ireland Parliament meaning that no government has been in place to approve the release of funds. If no deal is done, it may be necessary for the Stormont (Northern Ireland’s ruling body)
to legislate for a budget via Westminster instead. (https://www.irishtimes.com/news/politics/abuse-victims-urge-north-s-politicians-to-release-compensation-1.3273962)
It does appear however that Northern Ireland is committed to establishing a redress scheme notwithstanding the delays caused by the political instability currently being experienced.
If you were abused in an institution in Northern Ireland, register with Angela Sdrinis Legal at http://angelasdrinislegal.com.au/sexual-and-institutional-abuse.html.
6 November 20
Limitation Periods in Child Abuse Cases Abolished by Scottish Parliament
Scotland has passed the limitation (Childhood Abuse) (Scotland) Act 2017 which has abolished in child abuse cases the previous three year time limit for lodging a claim with the court (https://news.gov.scot/news/legal-milestone-for-child-abuse-victims).
In announcing the abolition of limitation periods, the Minister for Community Safety & Legal Affairs Annabelle Ewing, who took the legislation through Parliament, referred to other work in the area of historical child abuse including Scotland’s national survivor support fund and the establishment of the independent public Inquiry into in-care childhood abuse and the current consultation on a potential financial redress scheme.
Scotland’s independent public inquiry into the abuse of children in care in Scotland formally began work in October 2015. Scotland also has dedicated funding for support services for adult survivors of in-care child abuse. Future Pathways co-ordinates access to and delivers resources, integrated care and support for those who were abused in care, backed with Scottish Government funding of £13.5 million over five years.
The Limitation (Childhood Abuse) (Scotland) Act 2017 will apply to civil legal actions for damages resulting from child abuse, including in non-institutional settings, since 26 September 1964. Apparently it has not been possible to establish different limitation periods in cases where abuse occurred before this date.
A public consultation into a potential financial compensation/redress scheme for survivors of in-care child abuse is also currently being undertaken.
If you suffered abuse in care in Scotland and you wish to be updated on developments regarding the redress scheme, you can register with Angela Sdrinis Legal at http://angelasdrinislegal.com.au/sexual-and-institutional-abuse.html.
27 October 2017
Commonwealth Redress Scheme-Major Points
At this stage, the scheme applies only to a Commonwealth institution. The scheme will also apply to Territory and non-government institutions of a Territory which decide to “opt in”. Institutions that opt in to the scheme will need to meet a number of criteria including that they are solvent and agree not to rely upon previous deeds of release. Participating institutions will be liable for the costs of providing redress and will contribute to the administration costs of the scheme;
The scheme will be operated by the Department of Social Services and the Secretary to the Department of Social Services;
A person is within the scope of the scheme if the abuse occurred when the person was a child (under the age of 18) either inside or outside of Australia and the abuse occurred before the scheme start day of 1 July 2018 and if one or more participating institutions is responsible for the abuse;
Sexual abuse is defined as any act which exposes a person to, or involves a person in, sexual processes beyond the person’s understanding or contrary to accepted community standards;
Non sexual abuse will be compensated if it related to the sexual abuse. Non sexual abuse is related if the institution is responsible for both the sexual abuse and the non sexual abuse;
An institution will be responsible for the abuse where the institution should be treated as being primarily or equally responsible for the abuser having contact with the person. Relevant circumstances include whether the abuse occurred on the premises of the participating institution or where the activities of the participating institution took place or in connection with the activities of the participating institution. A participating institution may be responsible for the abuse whether or not the abuser was an official in the participating institution when the abuse occurred, whether the participating institution was responsible for the care of the person when the abuse occurred and any other circumstances which are prescribed by the rules;
The process will be survivor focussed and redress will be assessed with appropriate regard to a) what is known about the nature and impact of institutional child abuse, b) the cultural needs of survivors and c) the needs of particularly vulnerable survivors;
Cost of providing redress will be based on a proportionate share by each institution;
Only claim per person for all abuse in institutional settings;
A claim must be in a prescribed form and include all relevant information and the information must be verified by statutory declaration;
An assessment matrix will be applied in calculating the compensation payment;
Releases required and claimants will be required to release all participating institutions from all civil liability that is within the scope of the scheme;
Legal advice will only be paid for re the release-too late, the legal advice should come at the start of the process to give advice re common law options;
A person who accepts an offer must release all participating institutions determined to be responsible for the sexual abuse and any related non sexual abuse;
Compensation will be tax free and will not affect payments under the Social Security Act and Veterans Entitlements Act and will be quarantined from any bankruptcy proceedings and will be protected from garnishee orders. Because the payment will not be defined as compensation or damages there will be no requirement to repay any benefits under any Commonwealth or state scheme such including Medicare repayments;
Internal review only. The review will be conducted by an “independent” decision maker who must have regard only to the material that was available to the primary decision maker. Neither applicants or institutions will be able to apply for a merits review to the Administrative Appeals Tribunal or under the Administrative Decisions (Judicial Review) Act 1977. Survivors and institutions can apply for an internal review;
Only people who are citizens and permanent residents will be eligible to apply;
Only persons under 18 whose abuse occurred prior to the commencement of the Bill will be eligible to apply;
Standard of proof “reasonable likelihood” defined as “the chance of an event occurring or not occurring which is real-not fanciful or remote”;
Redress will consist of payment of up to $150k, counselling and direct engagement if the survivor requires. Counselling will be available after an offer is accepted and for the life of the scheme;
Top ups will be available but amount already received will be adjusted upward for today’s values. This means that survivors who have already received a payment of $150,000 or more will not be eligible for a further monetary payment but may still access counselling and direct personal response from the institution through the redress scheme;
The Commonwealth or Territories will be funders of last resort but only where there is shared responsibility i.e. if the relevant institution cannot opt in because it no longer exists or has no assets, the Commonwealth will not step in as funder of last resort in these claims;
The operator can request information and if this information is not provided within the time required, an assessment of the claim may be made without the information or a decision may not be made at all about the application;
The operator can require participating institutions and others to provide information;
Nominees can be appointed for the purpose of correspondence and payment. A payment nominee may be required to give notice regarding disposal of a redress payment;
The Commonwealth has a right to recover payments wrongly or incorrectly made;
If a claimant dies after having made a claim but before receiving redress, payment will be made to an appropriate person or persons having regard to the deceased’s will and the law relating to disposition of property of deceased persons;
Aspects of the scheme will be dealt with by Rules which will be made by the Minister. Under these Rules (and notwithstanding otherwise satisfying the legislative requirements) there will be power to determine certain persons are not eligible for redress and certain institutions are not responsible for the abuse.
The Minister has announced that survivors who have been convicted of sex crimes or serious crimes which have attracted jail terms of 5 years or more will not be eligible to apply under the scheme. This prohibition is not in the legislation and will likely be covered by the Rules.
If you wish to claim for redress, please register with Angela Sdrinis Legal by completing the registration form on our website.
26 October 2017
National Redress Scheme - Christian Porter on Radio National - starts at 2:52
The legislation introducing a national redress scheme for survivors of institutional abuse will be tabled in Parliament today. You can listen to the Minister for Social Services, Christian Porter, talking to Sabra Lane about the proposed arrangements at this link:
Christian Porter’s media release is here:
The Bill will only be available online once it has been tabled.
4 October 2017
Tasmania Releases Draft Bill to Abolish Limitation Periods in Child Abuse Claims
The Tasmanian Government has released for consultation a draft bill abolishing limitation periods in child abuse claims. The bill mirrors legislation that has been passed in Victoria and New South Wales and in particular specifically retains a judge’s discretion to stay or strike out proceedings on the basis of common law prejudice.
The Victorian Court of Appeal recently handed down a decision of Connellan v Murphy  VSCA 116 where notwithstanding the abolition of limitation periods in child abuse matters, the plaintiff’s claim was permanently stayed because of delay.
Whilst that claim did not involve an institutional defendant, some institutional defendants in Victoria are relying on delay in court proceedings to defeat victims’ claims.
The Victorian Limitations of Actions Act should be further amended so that Defendants are no longer able to rely on delay as of right. Judges are well versed in the weight they place on evidence which may be less reliable because of delay so there is no reason to believe that Defendants would be inappropriately prejudiced in their capacity to defend allegations as to historical events if the common law discretion was removed from Judges in this point.
The Tasmanian Government has an opportunity to learn from the experience in other states and to pass legislation which truly does what it purports to do which is to effectively abolish limitation periods in child abuse cases.
12 September 2017
Catholic Church Still Not Brought To Account Internationally In Child Abuse Cases.
The Survivors Network of those Abused by Priests (“SNAP”) recently provided an alternative report to the United Nations Committee on the Rights of the Child (the Committee) regarding the periodic reports of the Holy See (the Vatican) on child abuse. (https://ccrjustice.org/sites/default/files/attach/2017/09/2017-09_SNAPCCR_Report_CRC.pdf)
SNAP noted that following the period review by the United Nations of the Holy See in January 2014, the Committee issued a number of observations and recommendations about the Holy See’s handling of pervasive and systemic sexual violence against children within the Roman Catholic Church. In particular, this Committee observed that “in dealing with allegations of child sexual abuse, the Holy See has consistently placed the preservation of the reputation of the Church and the protection of the perpetrators above the child’s best interests…”
SNAP indicated that it was deeply concerned that the Holy See had not, in the three years since the recommendations were made, implemented any of the Committee’s recommendations and that it did not appear as if there had been any genuine attempt to do so. SNAP noted that in fact, in a number of respects, the Holy See had continued to do the exact opposite of what the Committee recommended and gave the following examples:
- rather than cooperate and share information about cases of sexual violence with national authorities as urged by this Committee, Vatican officials have withheld information from civil courts and have authorized, even encouraged, local bishops to do the same;
- rather than support the reform of statutes of limitations to allow victims to seek redress in civil courts as this Committee recommended, Church officials have continued in their efforts to oppose such reforms and thereby block victims’ access to justice;
- rather than give real effect to an often touted “zero-tolerance” policy, Church officials have continued to allow credibly accused priests and known perpetrators to serve as priests, contrary to the Committee’s recommendation;
- even the Pontifical Commission for the Protection of Minors, which was created by the Vatican shortly before the Committee’s review and promoted as a kind of panacea for the issue of child abuse in the church, has proven so ineffective given resistance by Vatican officials that the sole remaining victim and child advocate on the commission resigned earlier this year in protest;
- of great and immediate concern, as Church officials have ignored the Committee’s recommendations, more revelations of serious sexual violence by clergy and systemic concealment on the part of Church officials emerged during the reporting period.
The observations made by SNAP in its alternative report show that the Catholic Church continues to act as a law unto itself and despite the clear evidence of concealment of child sex abuse by Catholic clergy in a number of countries, the law seems powerless to bring the Church to its heels and to force it to give justice to its victims.
Attempts were made by Australian victims of catholic clerical abuse to compel the Roman Church to pay compensation. In Ellul et al v. The Congregation of Christian Brothers et al, No. 1:2009cv10590 - Document 35 (S.D.N.Y. 2011) a class action was launched in the Southern Circuit of the New York District Court on behalf of victims of Catholic clerical abuse. The lead plaintiffs were Australian Child Migrants being a group of children transported mainly from the United Kingdom and placed in Australian institutions operated by Catholic Religious Orders including the Christian Bros and the Sisters of Mercy. The case was issued in the US because it was argued that at the time (2011) the Plaintiffs could not bring their claims in Australia because of the “Ellis defence” (relied upon by the Catholic Church to argue that there was no legal entity within the Catholic Church that could be sued) and limitation periods which at the time meant that the vast majority of historical child abuse claims were out of time under Australian law.
The Sisters of Mercy and the Christian Bros essentially relied on an international version of the Ellis defence to argue that there was no entity that could be sued because the roman congregations of these organisations were found by the court of appeal to have never operated in Australia. (U.S. Court of Appeal 8/12/2014 Ellul v. Christian Brothers, No. 11-1682 (2d Cir. 2014) http://caselaw.findlaw.com/us-2nd-circuit/1685873.html)
Six years on we have a royal commission into child abuse in Australia and we have seen some positive changes including the abolition of limitation periods in child abuse cases in some states (Vic, NSW & QLD) with commitments to pass similar laws in other states (Tas & WA). However, the Ellis defence is yet to be conclusively dealt with by any legislature in this country. Victoria passed legislation which states that an organisation may nominate an entity that can be sued (s92 Wrongs Amendment (Organisational Child Abuse) Act 2017 ). However, in our experience the passage of this legislation (not surprisingly) has not stopped organisations from relying on the Ellis defence in child abuse cases. Having said that, whilst the Catholic Church seems by and large to not be relying on the Ellis defence in child abuse cases at this time, there is a concern that once the spotlight of the Royal Commission is no longer upon them, there will be nothing to stop the Church and other organisations to do so.
4 September 2017
Child Protection System Fails Again
Maria Liordos died whilst in the care of the state aged 16 years and two days. The Coroner found that Maria’s death was caused by “ mixed drug toxicity”. Maria’s journey under child protection sadly followed a path which we see all too often when acting for victims of institutional abuse, although thankfully the child protection experience very rarely leads to death. However, Maria’s circumstances show how easy it is for vulnerable children like her to remain at risk notwithstanding that they are placed in care for their protection.
Circumstances surrounding Maria’s death
At the time of her death, Maria was in the care of the Department of Health and Human Services (“DHHS”) and subject to a Custody to Secretary Order (See point 14). She resided at a residential unit (“the Unit”) managed by the Salvation Army, Westcare. The evidence before the Coroner was that 0n 23 September 2013 Maria made a telephone call to her aunty from the Unit in an apparent drug influenced state “talking quickly and speech slurred”
In December 2010 (aged 13) Maria was diagnosed with major depressive episode and substance abuse disorder. She was admitted into hospital and it was reported she was using ice, speed, petrol, cocaine, heroin and alcohol. Other risk factors identified included indiscriminate sexual promiscuity, violence, threatening behaviours towards her family, chronic absconding, self harm, attempted suicide and alleged sexual engagement with her father during absconding periods. Maria had in fact alleged during a hospital counselling session in 2011 that her father had been sexually abusing her since age 9 and that the abuse was ongoing but retracted her statement when the matter was referred to the police. Nevertheless in March of 2012, Maria’s father pleaded guilty to 10 counts of breach of an IVO, 2 counts of failure to appear whilst on bail and one count of supplying substance to a minor (Maria). He was placed on a Community Based Order and directed to attend a Men’s Behavioral Change program.
Maria had the following placements:
DHHS’ knowledge and role
July and October 2010 (3 years before death), the DHHS received reports pertaining to Maria’s:
November 2010 DHHS received a third report. An investigation was instigated with regard to Maria’s:
On 4 and 6 May 2011 DHHS sought Protection Applications in the Children’s Court and on 21 October 2011 Children’s Court of Vic made Maria subject to a Custody to Secretary Order (CTSO) which remained in force at the time of her death. The terms of the CTSO were that the Secretary had the ‘daily care and control’ of Maria and the right and responsibility to make decisions concerning the daily care and control of Maria which included making decisions regarding placement and returning Maria to the care of her parents if it was assessed to be in her best interests.
In December 2011 Child Protection placed Maria in High Risk Youth Schedule and on 7 December 2011 Maria’s case management was contracted to the Salvation Army Westcare Intensive Case Management Service (Westcare ICMS) which services are reserved for the highest risk youth. Westcare ICMS were a multidisciplinary team that had available in house mental health clinicians and alcohol and other drug workers. On 13 September 2013 the CTSO was extended with conditions attached to the order.
The High-Risk Youth Panel Meetings, chaired by the Senior Child Protection Staff from the DHHS were conducted and minutes generated. Issues addressed in these meetings:
A Crisis plan was in place which included that if Maria was missing for 6 or more hours, a warrant could be sought.
The Coroner found that:
However, the Coroner did not find a clear causal link that could attribute liability to Westcare or DHHS and that Maria’s death was the unintentional consequence of Maria’s intentional use of drugs.
4 September 2017
Defence Abuse Report (Balcombe Army Apprentice School, HMAS Leeuwin, Cadets)
The Royal Commission into Child Abuse (RC) has handed down its report into abuse in the Australian Defence Force (ADF) (http://www.childabuseroyalcommission.gov.au/getattachment/057f7f87-c47d-40c9-9ea8-6de0bbc1f211/Report-of-Case-Study-No-40) following a public hearing held in 2016. Angela Sdrinis Legal represented four former ADF members who were called to give evidence at the hearing.
The scope and purpose of this public hearing was to inquire into:
a. the experiences of survivors of child sexual abuse of the following institutions operated by the ADF:
i. HMAS Leeuwin in the period 1960 to 1980
ii. The Army Apprentice School, Balcombe, in the period 1970 to 1980
iii. Australian Defence Force Cadets in the period 2000 to present
b. 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.
The RC found that physical and sexual abuse of child recruits was widespread at Leeuwin from the 1960s to 1972. We find that Leeuwin’s institutional environment was such that abuse was allowed to occur. We accept that ‘bastardisation’ practices, including blackballing, or nuggeting, existed at Leeuwin and that a number of junior recruits who experienced child sexual abuse at Leeuwin did not report to anyone at the time for fear of retribution, being a labelled a ‘dobber’, being humiliated and shamed or being discharged, or because they did not believe any action would be taken. Some junior recruits who did report sexual or physical abuse to staff members were not believed, were ‘dishonourably discharged’ or threatened with ‘dishonourable discharge’, were left feeling like no action had been taken or were told that abuse was a ‘rite of passage’. Further the RC was satisfied that senior staff members knew of and tolerated rites of initiation within an unofficial hierarchy among junior recruits. That hierarchy perpetuated a culture in which senior recruits abused recruits who were junior to them.
Balcombe Army Apprentice School
The RC found that when junior apprentices arrived at Balcombe, the senior apprentices created an environment that was intimidating to junior apprentices. Senior apprentices were placed in positions of power such that junior apprentices saw them as ‘gods’ and learned quickly to do whatever the senior apprentices said. The unofficial rank hierarchy at Balcombe created an environment that allowed senior apprentices to command and control junior apprentices. The RC was satisfied that such a hierarchy existed and that it was known to and tolerated by staff, who did not take any steps to prevent it. Because of this unofficial hierarchy, which went unchecked, apprentices were subjected to ‘bastardisation’ and other physical abuse, as described by witnesses before the RC – for example, being made to ‘run the gauntlet’ by other apprentices, during which they were punched in the stomach, karate chopped on the back of the neck and kicked. The hierarchy created an environment that facilitated and contributed to the sexual abuse. This failure to adequately address harmful bullying conduct and the culture of intimidation by older apprentices and staff represent a failure in the duty of care of the Army to provide a safe environment for junior apprentices at Balcombe.
Defence Force Cadets
The RC found that since at least 2000 the policy guides and training manuals of the ADF Cadets and the AAFC regarding the legal age of consent and the effect of special care provisions were incorrect, incomplete and misleading. The documents did not address the variances in the legal age of consent across the different jurisdictions in Australia and failed to take into account special care provisions at all. The deficiencies in the documents increased the risk of child sexual abuse and had the potential for serious consequences for those who relied on them in good faith. Defence acknowledged that the evidence before the RC identified that, at particular points in time and at particular locations, Defence failed to meet best practice in ensuring a child safe organisation.
Vice Admiral Griggs, on behalf of the ADF, accepted that there was a failure of management in Leeuwin and Balcombe that allowed the abuse to take place. He said that, in his view, each institution at the time failed in its duty of care. He acknowledged that in the past, the culture in the ADF was one that excluded rather than included; diversity was not tolerated; and those that did not ‘fit in’ paid the price. The RC heard that Defence has taken steps to change this culture, most notably through the implementation of the Pathway to change strategy.
The Pathway to change strategy is a statement of Defence’s cultural intent. It was announced in March 2012 and was accompanied by a plan for the realisation of that intent over five years. Vice Admiral Griggs gave evidence that cultural change required:
• leadership commitment through the organisation
• clear, strong and concise policy statements
• appropriate internal staffing structures
• training to ensure that the message resonates.
Angela Sdrinis Legal has been settling claims against Defence for institutional abuse through a process which focuses on therapeutic engagement and restorative justice. If you or someone you know has been a victim of abuse with the ADF contact Angela Sdrinis Legal for a free and confidential consultation.
28 August 2017
Child Abuse at RAAF Air Bases (Point Cook & Laverton)
Angela Sdrinis Legal is acting for the daughter of personnel stationed in the 60’s at the RAAF base in Point Cook who alleges that she suffered child sexual abuse at the hands of an officer stationed there. Angela Sdrinis Legal is also acting for the son of personnel stationed at the RAAF base in Laverton who also alleges sexual abuse at the hands of an officer stationed there.
If you were a victim of child sexual abuse at the RAAF bases in Point Cook/Laverton please contact Angela Sdrinis Legal for a confidential appointment.
15 August 2017
Damages Award in Historical Abuse Claim Against the Department of Education
A recent Supreme Court decision has raised the high water mark in damages assessments in historical abuse cases (Hand v Morris & Anor  VSC 437).
The Plaintiff had been sexually assaulted by his teacher whilst a student at Eastwood Primary School in 1974. The perpetrator (Morris) had been convicted of sex offences against Mr Hand and the Department of Education admitted liability so the decision only involved the assessment of damages or compensation that was to be paid to the victim.
The Plaintiff’s evidence was that he was able to work although he intended retiring early because of his anxiety issues. He had also been able to marry although he gave evidence of the impacts of his abuse on his marriage. The Plaintiff, and his doctors, also gave evidence as to other impacts of the abuse on his life including crippling anxiety, fear that someone would say something about his abuse, lack of sexual intimacy, embarrassment, worry about what others were saying about him, destruction of confidence and self-esteem.
Her Honour Justice Zammit accepted that these impacts were significant and consistent with the evidence before her and she awarded $260,000 in pain and suffering damages. Another recent award for pain and suffering damages in a child abuse claim referred to in another blog (Erlich) was $300,000 but in that case the Plaintiff was unable to work and had required very significant psychiatric treatment including hospital admissions.
The award for pecuniary (economic) loss was also significant in this case because the Plaintiff was in work and the claim for loss of income was based on evidence of some past economic loss and the Plaintiff’s belief that he would be unable to work in the future which was accepted by the Court although with a significant discount for vicissitudes and uncertainties as to what the future might actually hold. In total the Plaintiff was awarded $717,000.
Angela Sdrinis Legal acts for a number of claimants who are suing the Department of Education for compensation where the perpetrators have been convicted including Alan Goodison, Trevor Crocker, Darryl Ray, Allison Cottier and others.
Angela Sdrinis Legal also acts for survivors of abuse in private schools where perpetrators have been convicted including Wesley College and Sygmund Sokolowski, Geelong Grammar School and Philip Truttman, Preshil and John MacMillan and many other school cases.
If you have been abused at a school, please contact our office for free confidential advice.
28 July 2017
Child Migrant Compensation
The British Health Secretary Jeremy Hunt has told the UK Historical Child Abuse Inquiry that the child migration policy in which both the UK and Australian Governments participated was “fundamentally flawed.” (Herald Sun 28 July 2017)
Around 130,000 children who were in care in the UK or whose parents could not afford to keep them were shipped to Australia and other commonwealth countries in the last century. In some cases, children were removed by the Catholic Church from single mothers and placed in orphanages in Ireland or shipped to Australia.
Evidence has been given to the Inquiry by British born child migrants of the hardships and abuse suffered in the Australian Orphanages in which they were placed. Many were separated from their siblings and told their parents were dead.
Mr Hunt told the Inquiry that the UK Government had failed to ensure children’s safety and welfare and should have regulated to make abuse less likely and ensure it was reported. He said the UK government would carefully consider the Inquiry’s recommendations.
Angela Sdrinis Legal is monitoring the UK Inquiry and the possibility that British born Australians may be entitled to compensation. In Australia, the Commonwealth Redress Scheme which will make available compensation of up to $150,000 for people who have been victims of institutional abuse is due to commence in July of 2018. Victims of abuse in institutional settings for which the Commonwealth was responsible will be eligible to apply.
If you were a child migrant or know of someone who was abused in an institutional setting for which the Commonwealth was responsible should contact Angela Sdrinis Legal to register on our data base.
31 May 2017
Delay Is Still A Factor In Child Abuse Cases
John Connellan v Marita 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 firstname.lastname@example.org 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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