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The Weekend Neos Kosmos : 26 January 2019
NEWS 4 THE WEEKEND NEOS KOSMOS | SATURDAY 26 JANUARY 2019 DIGITAL.NEOSKOSMOS.COM One year after the Royal Commission report, sexual abuse victims get their chance for closure Victoria leads the nation in creating a legal framework to make sure that institutions are held accountable, says legal expert Dimi Ioannou NIKOS FOTAKIS It's been more than a year since the Royal Commission into Institutional Responses to Child Sexual Abuse delivered its final report to the Governor-General and all states have modified their legislation, to create a legal framework that ensures justice for the victims and accountability for the institutions implicated. Victoria in particular is leading the way, being the first state to introduce laws creating a duty of care for organisations so they can be held accountable for the abuse of children. The Royal Commission was established in 2012, as a response of the Gillard government to revelations about a series of cases of childhood sexual abuse. In September 2015 the Commission released the redresses civil litigation report, which effectively led to the Turnbull government announcing in November 2016 the launch of a federal redress scheme. The Commission's final report included 99 recommendations around redress and civil litigation reforms necessary to enable access to commonwealth claims for survivors. These recommendations were the byproduct of long consultation with the legal wold. "We put submissions forward because we've supported the Royal Commission's recommendations," affirms Dimi Ioannou, Victorian head of Abuse Law at Maurice Blackburn. "We looked at three main elements: direct The Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse, comprised of 17 volumes and included 189 recommendations. PHOTO: JEREMY PIPER/AUSTRALIAN GOVERNMENT ROYAL COMMISSION VIA AP personal response - because some of the survivors wanted an actual apology as to what has happened to them; counseling and psychological care; and monetary payments." All states have a legislated commitment to Redress and have lifted the limitations period (including retrospectivity), but some are lagging behind, either having agreed in principle, or made commitments, but not acted on them. Western Australia is the one with a longer way to go, most of the issues still being under consultation, while it is the only state which has not ex- tended mandatory reporting to include confessions. "Sometimes states want to wait for one state to make a move before another makes a move," Ms Ioannou explains. "In our view Victoria has played a leading role in this space, moving swiftly to both commit to and deliver on reforms. "This includes a commitment to join the redress scheme, introducing penalties for failures to report child abuse, the lifting of limitation periods, the removal of the Ellis defence (ed.note: a clause that protects church assets against compensation claims), introducing a nondelegable duty of care on organisations and reversing the onus of proof on institutions. "We call on Victoria to maintain this reform momentum in 2019 as a nation leader in improving access to justice for abuse survivors," she adds. This change of policy also signals a change of culture. "The Royal Commission raised social awareness and made people come forward," she explains, referencing the Commission's statistics, according to which 60,000 survivors of abuse brought their cases to the spotlight and started making requirements in relation to their entitlements. People can now pursue with the common law claim and we can make the application for them." As a lawyer who has represented abuse victims, Ms Ioannou agrees that the numbers are staggering and that accountability remains an issue. "My role is to make institutions accountable," she says. "Children are vulnerable and therefore need to be protected. These institutions failed to provide a safe environment for these chil- Divorce shines light on ATO loophole In an unprecedented decision regarding a couple's divorce, High Court has found that it is possible for one spouse to transfer responsibility for tax debts onto their former partner during divorce property settlement. The issue came to surface via the case of Mr and Mrs Tomaras, who were married from from 1992 till 2009. Mrs Tomaras was issued an assessment by ATO for Medicare levies and income tax whereas by 2014, Mr Tomaras had filed for bank- ruptcy. Shortly after he went bankrupt, his spouse initiated proceedings in the Federal Circuit Court seeking alteration of property interests under family law.Mrs Tomaras' tax debt had risen up to $250,000 during the marriage, however, she sought an order from the Federal Circuit Court that her Mr Tomaras become solely liable, the Age reported.At the same time, the High Court found that a court has jurisdiction over debts owed to the Common- wealth and a court has power, under s90AE, to order the commissioner to substitute the husband for the wife in relation to a debt owed to the Commonwealth arising under a taxation law. Meanwhile, a substitution order should only be made where it is "just and equitable to do so" and not if it is foreseeable that the order would result in the debt not being paid in full."High Court also observed there will seldom, if ever, be occasion to exercise that power and adversely af- fect the commissioner or other creditors," notes the ATO website. The Full Court said s90AE(1) of the Family Law Act 1975 confers power onto the court that enables it to make an order that the commissioner be directed to substitute the husband for the wife in relation to the debt owed by the wife to the commissioner. As a result, the tax commissioner appealed to the High Court but lost meaning that he could now potentially lose $250,000 due to the husband being bankrupt. Why this case is so important? According to Senior associate at Hopgood Ganim Lawyers, Sophia Pippos, it highlights a very important hole in the determination of a divorce-related property dispute where as part of the settlement, one spouse could seek a substitution order and make their former partner responsible for taxation liabilities and/or penalties. "For other spouses who may have been unwilling to share in the burden of a taxation liability accrued during the relationship," Mrs Pippos explained, "the liability can be included in the available property and can also be transferred directly to the other spouse if, in all the circumstances, it would be just and equitable to do so".Even though it is rare, this discrepancy allows court to have the more financial secure spouse take on the debt if if the Tax Office decides to pursue the payment of the debt but only if the person does have capacity to pay it. dren and clearly they have abused their power in these cases. And they need to make sure that they acknowledge the impact that it's had on the survivor, apologise to the survivor and take reasonable steps to prevent the abuse from ever occurring again and to make sure that these people can basically get closure." With all the progress made, there is still room for improvement. At the moment, the Federeal Redress scheme sets a cap of $150,000 per person as compensation. "We say that it's not enough," says Ms Ioannou, explaining that the Commission had recommended for a $200,000 cap. Other aspects go beyond the financial. Educating the community about victims of sexual abuse is of paramount importance, Ms Ioannou says. "[We need to] make sure that institutions provide a safe environment for children, that they have correct setups in their living arrangements to eliminate risks and to make sure that the people who have abused their power are penalised. This is where the criminal justice system needs to intervene." One of the ideas circulating in order to protect the community is the creation of a registry for sexual offenders. "I agree with that," Ms Ioannou says. "It would make people aware, because people need to know. It is another form of educating people and it would also make people accountable, because I don't think that anyone is going to want to be on that registry."
19 January 2019
2 February 2019