COMMONWEALTH SETTLES CLAIM BY CHILD ASYLUM SEEKER FOR ABUSE WHILE IN DETENTION
February 7, 2024
The Federal Court of Australia has approved a settlement reached in favour of a child refugee who was sexually assaulted while in immigration detention on Nauru and claimed that the Commonwealth was negligent by not having systems in place to prevent such an assault. While denying that it owed any duty to prevent the child from such an attack, the Commonwealth has agreed to settling the claim but on confidential terms.
Abused While in Detention
When she was eight years of age the child arrived from Iran at Christmas Island by boat with her father and brother. The three were detained in immigration detention as ‘unlawful maritime arrivals’ and ‘unlawful non-citizens’ and were taken to the Australian immigration detention facility on Nauru.
About 18 months later the family were recognised as refugees by the Nauruan Government and were granted temporary settlement visas enabling them to live in the community. Three years later they were removed from Nauru to Australia.
During this period when she was living within the Nauruan community the child was sexually assaulted by an adult male refugee who was a ‘drinking acquaintance’ of her father. She was only 10 years old at the time, and unsurprisingly this heinous crime had a severe adverse effect on her mental health. She suffered from a major depressive and post-traumatic stress disorder which included serious mood disturbances, behavioural changes, recurrent distressing nightmares, bedwetting and anxiety when in public.
While before the offence the young child Was coping reasonably well with the challenges of immigration detention, and was attending school and socialising with friends, afterwards she stopped going to school and withdrew from the community.
About six month after the assault a specialist forensic and occupational psychiatrist made recommendations for the child’s care and treatment which were apparently not actioned, and sadly, about one month later she overdosed on medication and was hospitalised, during which time she self-harmed two more times.
Following this the young girl was seen by a child psychiatrist working for the International Health and Medical Service who diagnosed a major depressive disorder and post-traumatic stress disorder. He recommended that she and her family be immediately transferred to an appropriate Child and Adolescent Inpatient unit with the skills and resources to support her in her recovery. The psychiatrist reported that, “Any delay in this process of transfer increases the potential for further harm and suicidal behaviour.”
Claim for Negligence
The child’s legal representatives commenced a claim against the Minister for Home Affairs alleging that the Commonwealth was negligent by failing to have systems in place to ensure her welfare and to prevent the sexual assault. In addition, it was claimed that the Commonwealth failed to have reasonable levels of support and child psychiatric care available on Nauru and didn’t take steps to arrange for her care and treatment by following the recommendations of the first psychiatrist. An application was also made seeking an urgent injunction requiring the Minister to transfer the child and her family as recommended by the psychiatrist.
The claim was for damages for pain and suffering as well as the cost of future medical expenses and other care. In addition, aggravated and exemplary damages were sought due to the alleged failure to act on the first psychiatrist’s recommendations acting in ‘contumelious disregard’ of her health and exacerbating her suffering as a result of the sexual assault.
The Commonwealth denied the claim stating that it did not assume responsibility for the day-to-day operations of the regional processing activities on Nauru and that the obligation to care for the health and welfare of the child was on the Nauruan government. It was also denied that the Commonwealth knew the child would have been at risk of physical, emotional and child abuse whilst on Nauru or that she was dependent on the Commonwealth for medical, psychological and psychiatric treatment. It was denied that the Commonwealth owed her any duty of care to ensure that reasonable steps were taken to prevent her from suffering physical and/or emotional child abuse.
Settlement Agreement Reached
The case did not go to trial as a settlement agreement was reached between the parties. When there is an agreement to settle a claim on behalf of a person who is under a legal incapacity, such as a child in this case, the Court must approve the agreement for it to be binding. In doing this, the Court has to decide whether the agreement is in the best interests of the child. This involves considering the prospects of the case succeeding if the proceedings were to continue to trial, then weighing up the benefits of a settlement with the costs and presumes of going to trial including the emotional and psychological strain of litigation.
On this occasion, the Court approved of the settlement agreement. It was noted that the child’s litigation guardian had received legal advice from experienced and competent lawyers. In addition, since it was clear that the young girl suffered and continued to suffer from a significant psychiatric injury and if she had been required to give evidence it might well have caused her further harm. Orders were made that the settlement money was to be held on Trust and preserved for the child’s benefit. The terms of the Deed of Settlement and the amount of the settlement were ordered to be prohibited from disclosure. The Commonwealth was facing a large number of similar claims by detainees taken to Nauru and Papua New Guinea and said that those cases would be prejudiced if the terms of settlement were made publicly available.
Cases involving claims for damages arising out of abuse are not easy for the survivor, but as the Court in this case noted, legal advice from experienced and competent lawyers will put such ones in the best position to know what action is in their best interests. Abuse survivors are entitled to be compensated, and with a supportive legal team they can navigate the legal process with as little stress and discomfort as possible. Anyone with such a claim is welcome to speak to a lawyer experienced in handling historic abuse claims at Websters Lawyers by calling (08) 8231 1363. For more information you can go to https://websterslawyers.com.au/injury-claims/sexual-abuse.