Victorian sisters abused by paedophile priest say High Court decision has halted quest for compensation
Sisters Bernie and Trish have not had a restful night since they were abused by a paedophile priest in the 1970s.
"You don't sleep afterwards like a normal human sleeps. You're never carefree again,'' Bernie said.
To sleep soundly, the sisters need to know no-one can come through their bedroom doors, so their husbands made them special wooden jams to lock them in place.
"You can have happy days, and you can do things, but you're not that innocent,'' Bernie said.
"You never, ever become that carefree kid."
The sisters were abused by notorious paedophile priest Bryan Coffey — who is now dead — and the pair are pursuing the Catholic Church for compensation.
But the sisters' legal pursuit is in jeopardy after the High Court made it harder to find the church vicariously liable.
Coffey was never convicted of the women's abuse, but Trish received a letter of apology from the Ballarat bishop's office in 2015.
Another victim, known as "DP", was also abused by Coffey when he was a five year old in Port Fairy in south-west Victoria.
In 2021, he was awarded $200,000 by two Victorian courts, which found the church was vicariously liable for the harm caused by Coffey.
But the church appealed that ruling to the High Court and won, because Coffey was not an employee — instead, he had a relationship of a spiritual nature with the church.
"It's really, really shit to do it when they have knowledge that he did this to us."
The landmark decision late last year has placed pressure on state governments to retrospectively change the law.
"We just need someone to listen to say that this is not right. We need to make these changes to help everyone. It's unfair that every time they find an avenue, a new lawyer finds a new way of doing things [to defend the church],'' Trish said.
On Wednesday, Victoria's upper house will debate a private member's bill to hold institutions to account by making it easier to find them vicariously liable.
The idea that Coffey was not an employee is fanciful, the sisters said.
Their lawyer and longtime victim-survivor advocate Judy Courtin said Victoria used to be a leader in tackling institutional abuse, but was falling behind.
"Once again, and despite all the work done by the royal commission, parliament and others to ensure victims of institutional child abuse might receive justice, the church has secured dispensation from responsibility, this time via a technical argument before the High Court,'' Dr Courtin said in a letter to the state's Attorney-General.
Ms Courtin said some of her clients pursuing similar action were suicidal as a result of the High Court ruling.
Law reform has the backing of various victim-survivor groups and the Australian Lawyers Alliance.
The issue has been taken to the Standing Council of Attorneys-General, where it has been discussed, but no plan of action has been developed.
Victoria is under pressure, including from government MPs, to act first.
The Legalise Cannabis Party bill to retrospectively change the law is the first step, and the party has tabled a similar bill in the NSW.
"This is about victims and survivors having opportunity to tell their story, to have their day in court and an opportunity to heal,'' Victorian Legalise Cannabis MP Rachel Payne said.
Her NSW colleague Jeremy Buckingham said the High Court decision invited the states to legislate.
"It is deeply immoral and unreasonable that subsequent to the High Court's decision the perpetrators and the institutions in which they served cannot be held liable for these abhorrent crimes. The current situation cannot stand, and we will continue to fight until the law is changed,'' he said.
Victorian Attorney-General Sonya Kilkenny has met with victim groups and is considering options for reform. The state's preference is for a national approach.
"We have always sent a clear message to child abuse survivors — we stand with you in your fight for justice and always will,'' Ms Kilkenny said.
The Victorian government will not support the Legalise Cannabis Party bill as it believes it is too broad.
"We would need to do more work to understand the legal risks and potential unintended impacts on community, volunteer and not-for-profit organisations,'' Ms Kilkenny said.
NSW Attorney-General Michael Daley said he understood "the High Court's finding relating to vicarious lability for institutional child sexual abuse is upsetting and traumatising for victim-survivors".
"NSW in 2018 changed the law to extend vicarious liability to individuals who are akin to employees, such as priests and volunteers, but that amendment was not retrospective," he said.
"The Standing Council of Attorneys-General has agreed to consider the impacts of the High Court decision and potential options for reform."
Ballarat Bishop Paul Bird said the church believed the Victorian court's decision to impose vicarious liability on the diocesan community was "excessively broad" and "unjust".
He said that prompted the decision to take the issue to the High Court.
"The Victorian court's decision seemed to me so vague as to mean that a diocesan community could be held vicariously liable for any actions that a priest did anywhere, anytime. I consider that it would be unfair to impose such a wide liability on a diocesan community,'' he said.
Bishop Bird also said there would be "additional unfairness" if the state introduced a retrospective fix.
He said the diocese would continue to provide compensation in cases where there was evidence it had been negligent in safeguarding.
Trish believed the church was deliberately trying to stall the legal process, hoping that people like her and her sister would die.
"A lot of their victims are getting older and sicker, or a lot are dying and a lot have [died by] suicide. I think they think we will eventually die out and it'll all be cleaned up," she said.
When the girls were growing up in Ouyen, in the Mallee in Victoria's north-west, in the 1970s, they did not realise they were both being abused.
Thinking about life before the abuse is too painful.
"You don't want to think about that time," Bernie said.
"So, you lose all the happy memories pre the time, because you just don't want to think backwards.
"So, all the fun stuff … I won't even go there."
"It seems disrespectful to our families, but it's just hard,'' Trish said.
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