(AUSTRALIA)
Australian Broadcasting Corporation - ABC [Sydney, Australia]
August 4, 2023
By Nicolas Perpitch
Key points:
- Child abuse survivors are re-telling their stories to a WA parliamentary inquiry
- It is examining the experience of survivors as they seek justice
- Victims and advocates say they are being “re-traumatised” by the process
“Gutted. Betrayed. Used. Re-traumatised.”
That is how 70-year-old Gordon Batty felt when his civil court case against the Uniting Church over his alleged sexual abuse in the 1960s was permanently stopped.
Following the Royal Commission into Institutional Responses to Child Sexual Abuse, he had been encouraged to pursue justice over his claims of abuse in several state institutions and Perth’s Methodist Homes for Children.
“I didn’t ask for any of this. We were invited,” he remembered of the decision to take legal action.
“I’d go as far as to say, we were virtually begged to let our demons out of the closet.”
But the proceedings came to a sudden halt when the church successfully applied for a permanent stay in December 2020 on the grounds the alleged offender had died and they could not fairly defend the case.
The Uniting Church has not sought to recover costs and in a statement said it “abhors the crime of child abuse and is committed to co-operating fully with authorities who are investigating allegations of child abuse”.
Mr Batty has recounted his story in a submission to a West Australian parliamentary committee inquiry into the experiences of survivors of institutional child sexual abuse as they seek justice through civil litigation.
Mr Batty hoped the inquiry would allow his story and that of others to be heard afresh in the courts.
“These are the things that need to be done. If this country is ever going to be free of the shame,” he said.
Permanent stays in spotlight
The use of permanent stays — where a court grants immunity from prosecution to an accused person — is one of the key issues several groups providing submissions to the Community Development and Justice Standing Committee’s inquiry want addressed.
“Applications for permanent stays of proceedings are now being routinely used by some non-government organisations as a response to claims,” said Philippa White, director of Tuart Place in Fremantle, which supports people placed in of out-of-home care during childhood.
“And, we believe, it is designed to encourage people to accept a lower payment, or to not proceed at all.”
While submissions to the inquiry officially close today, committee chair David Honey said late submissions would be very favourably considered if people needed more time.
‘Long, drawn out, very traumatising’
Jarrod Luscombe has been helping Mr Batty and other members of the Perth-based group, Survivors of Child Abuse, prepare their submissions.
He is currently engaged in civil proceedings over his abuse by Christian Brother Daniel Virgil McMahon when he was a schoolboy.
The Christian Brothers accepted his complaint against the late Brother McMahon in 2004.
“Long, drawn out, very traumatising. The whole process is fairly brutal.
“And many times I think I do regret even taking on the civil case,” Mr Luscombe said.
“I think it looks like the whole system needs to be looked at under a fine-tooth comb, to assess its efficacy, and truly its justice as well.”
He is highly sceptical of defendant groups that say they are “model litigants”.
Litigation must be ‘respectful, fair’: Archbishop
But the Catholic Archdiocese of Perth, which is also presenting a submission to the inquiry, emphasised “the individual needs of each victim and survivor continue to be at the centre” of Archbishop Timothy Costelloe’s approach to any civil litigation.
“Principally, the archbishop continues to instruct those who provide legal counsel to him to ensure that civil litigation is to be resolved through respectful, fair and just processes that seek to ensure no further harm is caused to the person who has been abused,” a church spokesperson said.
The number of claims has increased dramatically since the royal commission into child abuse and since the WA government lifted time limits for survivors to take civil action against their alleged abusers and institutions.
Mr Luscombe said some survivors were waiting several years for their cases to go to trial because of blockages in the courts.
Disadvantaged group ‘at mercy of the courts’
Tuart Place’s Philippa White said the courts in WA were simply not set up to deal with the volume of cases coming through from the royal commission.
“This is an elderly, disadvantaged group of people who are absolutely at the mercy of the courts, and there has been nothing put in place to change the court process so that they can proceed in a reasonable time frame.”
She is advocating for a specific court to be assigned to deal with child sexual abuse cases.
Lawyer Judy Courtin runs a practice representing victims of institutional child abuse and is also putting a submission into the inquiry focusing on the legal delays.
She wrote to WA Attorney-General John Quigley in February, saying “our vulnerable clients are unnecessarily suffering secondary legal trauma” because of the lengthy delays in getting to trial.
Mr Quigley replied the availability of courts could contribute to delays but so could “the limited number of specialist counsel who primarily deal with these types of matters”.
“Trying to schedule lengthy trials and finding availability for the court, counsel and witnesses, can contribute to delays in obtaining a trial date,” Mr Quigley wrote.
Underfunded support services overwhelmed
The re-traumatisation that survivors talk about experiencing during the court processes goes to the heart of a joint submission by 10 providers of child sexual abuse therapeutic services and the WA Council of Social Service (WACOSS).
They said they were so underfunded they could not meet existing demand and desperately needed a funding boost from the state government.
“These services are imperative,” WACOSS chief executive Louise Giolitto said.
“We know actually going through the process and through the court will re-traumatise people,” Ms Giolitto said.
“So they need to have access to these services, but they can’t. The wait period is six months.”
Child Protection Minister Sabine Winton has been contacted for comment.
Inquiry probes redress scheme ‘injustice’
The inquiry is also looking at how well WA supports people trying to access the National Redress Scheme, and there are concerns descendants of the Stolen Generation are missing out.
Ms White, from Tuart Place, said children and grandchildren of members of the Stolen Generation who were abused are being ruled ineligible for redress because they were not wards of the state.
She said they were in state care in that they were monitored by the state and the state decided where they would live, whether that was in foster care funded by the state government, in juvenile institutions, in children’s homes, or in kinship care.
“Some of the abuse they experienced was absolutely horrific,” Ms White said.
“The department was very much involved in their lives. Some of them have substantial departmental files. But now we’re finding that they’re not eligible for the Redress Scheme, because they weren’t made wards of the state.
“It’s extraordinarily devastating, these are really vulnerable people who have lived in poverty all their lives. They rightly think that they will be eligible for redress under an institutional abuse scheme.”
The submission specifically asks the WA government to recognise this and prevent an “injustice”.
“We request that the WA government recognises the unique experiences of this group and elects to accept their applications for redress,” it said.
The submission suggested this could be done by the WA government instructing the independent assessors to accept redress claims “in which the applicant’s childhood sexual abuse occurred in the context of departmental neglect”.
The WA Department of Justice said it would give “full consideration to the committee’s findings and recommendations”.