The legal landscape for child sexual abuse cases in Victoria is shifting, albeit slowly, say legal experts.
Laywer and child sexual abuse advocate, Dr Judy Courtin says, “unlike the period up to 2015, when one could not sue the church for the psychiatric harm caused by institutional child sex crimes, many victims now have equal access to the civil courts and victims can now sue the church”.
She said while civil suits were occurring more frequently, for victims of institutional child sex crimes to try and obtain justice through the courts, they have to pursue ‘personal injury’, an area of the law more suited to victims of workplace or road injury.
While it is not known how many Ballarat and region child sexual abuse survivors are pursuing civil cases, Dr Courtin said, unlike when she started, many law firms were dealing with these cases now.
“But, since 2015 when the statute of limitations was abolished for these matters and now that the Ellis defence has gone, there could be hundreds in the pipeline at the Supreme Court. This is new law,” she said.
Dr Courtin cautioned that, while some historical institutional child sexual abuse cases can be awarded between $1.5 and $2 million and others “anything from $100K to $1 million”, it can take up to 18 months, without adjournments, to have a trial scheduled in the Supreme Court, with some taking up to four years.
For clergy abuse cases, Dr Courtin said “the victim must be psychiatrically assessed by an independent psychiatrist organised by his/her solicitor and then again by a psychiatrist selected by the church.”
“Our clients feel they are the ones on trial,” she said. “They become incredibly distressed trying to deal with what are basically unknowns in terms of outcomes.”
“The civil court process is highly challenging, confronting and distressing for people who are already highly traumatised.”
And, Dr Courtin said not all victims were able to mount a civil suit.
“Those who have signed away all their future legal rights with a deed of release, are now seriously stymied in their attempts to gain proper compensation,” she said.
“This is because the church authorities are relying on the legal enforceability of the deeds of release.”
Ballarat Diocese business manager Andrew Jirik said, if survivors “have signed a deed of release under civil law, they cannot launch a civil case,” however he said, “this is no different to any civil law settlement that is agreed on the steps of the court, rather than in it.”
Even if someone has signed a deed of release, “it does not prevent them seeking redress through the (Commonwealth) Redress Scheme, although any past payments will be taken into account,” he said.
Mr Jirik said in situations where it had been identified that the “claimant did not have proper legal advice provided to them at the time” the Diocese of Ballarat had “permitted cases to be reopened, even if the claimant had signed a release.”
“The Ballarat Diocese remains supportive of the redress scheme as another, less litigious avenue of support for victims, and while applicants are entitled to seek legal advice, I feel the legal system is making a lot of noise about the system’s fairness because it takes lawyers out of the loop,” Mr Jirik said.
”With the redress scheme, 100 per cent of payment goes to the victim, rather than a (large) percentage going to the lawyer.”
Dr Courtin sees it differently, calling the redress scheme “utterly inadequate and shameful” for the compensation amounts paid to victims’ whose lives have been “deleteriously impacted” on every level.
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