(AUSTRALIA)
The Guardian [London, England]
September 18, 2022
By Christopher Knaus
In the past, victims sought legal help only to be met with the further humiliation of unjust settlements. But the tide has begun to turn
Margaret Spivey was just a toddler when the betrayals began.
Abandoned after the death of her father, Spivey was a made a ward of the state at the age of 22 months.
She was separated from her two sisters, placed into care, and then handed to a foster family in 1960s Geelong, where she faced shocking physical and sexual abuse, before being flung back into children’s homes.
Shuffled between the Allambie Reception Centre, Providence Children’s Home, and the St Vincent de Paul Children’s Home, her childhood was marked by trauma upon trauma, all enabled by the very institutions entrusted with her care.
“There have been many dark moments, but something kept compelling me to go on,” she says.
Like so many child abuse survivors, it took a long time for Spivey to confront the raw trauma of her past.
But where she sought justice, she only found further humiliation.
The legal system corralled survivors like her down a single path – one where they felt forced to accept pitiful amounts of compensation for acts of unspeakable, life-altering abuse, taking the money in exchange for silence and a promise to forego future litigation.
Spivey sought compensation from the Catholic Church in 2003 and the Victorian government in 2012. She walked away with less than $30,000 each time.
Survivors were driven into such deals by a legal environment that was stacked against them.
For most, the short statute of limitations period meant their time window to sue had expired.
Others were confronted with institutions that withheld evidence or used deficiencies in the law to avoid liability. Some organisations, including the Catholic church, were shielded by rulings that unincorporated bodies could not be sued.
It allowed abuse to continue on an industrial scale, largely unchecked.
But in the past three years, the tide has begun to turn.
[Photo: Margaret Spivey. There are new legal provisions allowing survivors to have past cash settlements, with churches, governments or children’s institutions, set aside on the basis they were unfair and unjust. Photograph: Dean Sewell/The Guardian]
Reforms introduced progressively across almost every jurisdiction since 2019 allow survivors, such as Spivey, to apply to the courts to set aside past settlements and lodge fresh claims, if a court decides it is just and reasonable to do so.
Amounts as low as $20,000 or $30,000 have been turned into compensation in the hundreds of thousands, in some cases millions, of dollars.
“For many of my clients, being told by organisations like the Catholic church that their years of enduring sexual abuse only equates to a few thousand dollars’ compensation was catastrophic to their mental health and faith in the institution,” Slater and Gordon abuse lawyer Jessica Steele, who is representing Spivey, says.
“The benefit of bringing these revisit claims is not only the option for significantly greater compensation, but the opportunity for survivors to have their experiences validated, and to feel that a degree of justice has finally been accomplished.”
The altar boy, the Catholic church, and a ‘watershed’ moment for survivors
It took almost two decades for the man known only as WCB to seek justice.
From age 11, the then altar boy endured prolonged sexual abuse at the hands of the local assistant parish priest, Daniel Hourigan, in the small town of Warragul, south-east of Melbourne, in the late 1970s.
Like so many survivors, he suffered in silence, too afraid to tell his parents or challenge the power and authority Hourigan held.
In the mid-1990s, police came searching for WCB as part of an investigation into Hourigan. The priest killed himself soon after.
“I was not in a good way,” WCB said. “I decided I would seek compensation for what had been done to me and what I was dealing with.”
A court would later describe his rape and abuse as “horrendous”, causing trauma that led to alcohol abuse, social isolation, 25 years’ of antidepressants, and nightmares.
For all this, the church offered him the paltry sum of $32,500 in 1996.
Confronted with seemingly insurmountable legal barriers, WCB took the money.
The same impossible choice was forced upon many survivors, according to Ken Cush & Associates special counsel Sangeeta Sharmin.
“You can imagine an almost powerless and heavily compromised victim who’s essentially forced to accept a small amount of compensation because the legal defences available to them were just simply too poor at the time,” Sharmin says. “The legal playing field was just, unfortunately, heavily sloped against them.”
After Victoria introduced its reforms in 2019, WCB went back to court.
The supreme court ruled in his favour, allowing him to lodge a fresh claim.
“The plaintiff has suffered the loss of his childhood and serious post-traumatic stress disorder for more than 40 years,” supreme court justice Andrew Keogh wrote in late 2020. “His case is deserving of a proper determination and proper and adequate compensation.”
The decision, confirmed on appeal, is widely viewed as an important precedent, paving the way for hundreds of abuse victims seeking to use the new laws.
WCB’s lawyers, Rightside Legal, described it as a “watershed moment”.
Similar reforms have been introduced in almost every state and territory across the country, most recently in South Australia.
In Tasmania, the courts are currently considering the first test case brought under its regime, introduced in 2020.
Assessing the degree to which survivors are making use of the new laws is difficult.
Every state government approached by the Guardian said they either did not hold, or could not easily provide, data about settlements set aside since the reforms.
Many of the new settlements are also made out of court, meaning they are invisible to the wider public.
But law firms who regularly deal with abuse claims are almost unanimous in their praise.
The Rightside Legal partner Grace Wilson says her firm has now helped many survivors – some of whom were forced to accept as little as $10,000 – win proper compensation, sometimes in the millions of dollars.
“The reforms have offered real access to justice for the first time to abuse survivors who were brutalised in childhood and then brutalised again by a legal system where the deck was stacked against them,” Wilson said.
Shine Lawyers special counsel Thomas Wallace-Pannell, whose firm is also representing a large number of survivors revisiting past settlements, says the reforms have driven a noticeable change in the attitude of the church.
“Whereas before the church would really push previous settlements as a bar to the proceedings, now the approach has softened,” he says. “They might raise it initially and ask why the previous deed settling the claim for, say, $20,000 should be set aside, but the reality is that argument now falls away.”
“I think that’s where it’s had the impact. There is a realisation that these unjust settlements should be and will be set aside.”
For a long time, Spivey felt guilty that she had survived the horror of her childhood, when so many of her peers had not.
Now she says she’s grateful to have somehow emerged from the trauma to build a life in the Blue Mountains and attend university, studying human rights and environmental science.
“It has made me the person I am and the suffering also opened my soul to spirituality, which is at the very core of my being,” she says.
“No amount of money is going to change what happened, but if it can assist with the necessary support needed as I get older, it’s worth it.”
- In Australia, the crisis support service Lifeline is 13 11 14. In the UK and Ireland, Samaritans can be contacted on freephone 116 123, or email jo@samaritans.org or jo@samaritans.ie. In the US, the National Suicide Prevention Lifeline is at 800-273-8255 or chat for support. You can also text HOME to 741741 to connect with a crisis text line counsellor. Other international helplines can be found at befrienders.org