Understanding the process and challenges to make a historical abuse claim in Australia

If you have lived through abuse, you are probably aware of the frequent media attention in recent years on issues such as Royal Commissions, cases involving church leaders and high-profile individuals, and the introduction of various Redress systems. These developments have opened many Survivors’ eyes to the possibility of seeking justice, even for abuse that took place years or decades ago.

Historically, many victims of abuse have felt silenced, either because their experiences were overlooked or because they were unable to seek compensation due to complex legal challenges or a general lack of information on how to do so.

Even more so, for those that have experienced sexual abuse or lived through other historic abuse, shame, guilt, confusion, fear, stigma and extensive trauma can be a deterrent from making a claim. The nature of the legal system can also present emotional challenges for those who are considering making a claim. In this article, we’ll look at the current legal landscape in Australia for abuse victims and the ways they may be able to make a claim.

An overview of historical abuse claims and the Australian legal system for victims of historical abuse

In Australia, claiming for historical abuse, particularly child sexual, physical or psychological abuse, follows specific legal criteria, which may vary from state to state. The eligibility criteria for making a claim can also vary depending on the specific details of the abuse that occurred.

What is considered historical abuse in Australia?

Historical abuse in Australia refers to abuse that occurred many years or even decades ago but is still eligible for legal action or compensation today. This type of abuse can span a wide range of contexts, from childhood abuse within families or communities to abuse suffered in institutional settings like schools, foster care, religious institutions or juvenile detention centres.

Types of abuse that can be claimed for

Historical abuse encompasses various forms of mistreatment. For legal action to be taken, the abuse must typically fall under one or more of the following:

Sexual abuse.
Physical abuse.
Emotional, psychological or mental abuse.
Neglect.

Victims of any of these forms of abuse, even if it occurred years ago, may still be entitled to seek compensation.

Does historical abuse refer only to child abuse?

No, historical abuse refers to any form of abuse that occurred in the past, not just child abuse. While it often involves childhood abuse, it can also include sexual, physical, emotional, or psychological abuse experienced by adults in the past. Historical abuse claims can be made by survivors of abuse, regardless of their age at the time.

What is the legal definition of historical abuse?

The legal definition of historical abuse can vary, but in general, it refers to abuse that occurred in the past, often during childhood, that is now being brought to light or acted upon. For example, historical child sexual abuse cases can involve claims made by survivors who are now adults but wish to hold institutions or individuals accountable for abuse that happened in their childhood years.

Is this the same as institutional abuse?

Institutional abuse refers specifically to mistreatment or neglect that occurs within an organisation, such as a school, foster care system, religious institution, or other types of care facilities. Historical abuse can be part of institutional abuse if the abuse occurred within such an institution. Many claims for historical abuse today are brought forward by survivors of institutional child abuse, particularly in settings where there was a failure to protect children or hold perpetrators accountable.

What are the timeframe & limitation periods for abuse matters?

Previously, there were time limits for many types of abuse claims (limitation periods), but most states and territories have now abolished those for child abuse. Many abuse survivors can take years, or even decades, to tell someone else that the abuse happened, or to make a police report or legal claim.

Who can a claim be made against?

An abuse claim can be made directly against the perpetrator, or you can claim against an institution if they were, or should have been, responsible for your care at the time it occurred.

A claim can be made against:

The individual abuser (if they are alive and identifiable)
Institutions responsible for your care or where the abuse occurred (such as schools, churches and religious institutions, orphanages, youth detention centres, government departments and sporting or community organisations)

What legal avenues are available to make a historic abuse claim in Australia?

There are various legal avenues available for pursuing historical abuse claims, each depending on the nature of the abuse, the responsible party, and the legal framework in place at the time.

Civil claims (common law claims)

This is the most common option for historical abuse cases. A civil claim is a legal action taken against an individual or institution to seek compensation for damages suffered due to the abuse. For example, sexual abuse survivors may pursue a civil claim against an institution, such as a religious group or school, for the abuse they experienced.

Redress Scheme

This is a government initiative, known as the National Redress Scheme claim for past abuse, that allows survivors of institutional child sexual abuse to receive financial compensation and access support services. The redress payment is typically smaller than what may be awarded in a civil claim, but it provides a quicker route to justice.

Victims of crime compensation

For those who have experienced abuse outside of institutional settings, or when the abuse was not carried out in an organisational context, applying for victims of crime compensation may be an option.

A claim via the Sentencing Act 1991

In Victoria, if a perpetrator has been charged and found guilty of abuse, a claim may be made directly against the perpetrator. There are strict time limits for making these claims.

Making a historical abuse compensation claim for family or personal abuse vs historical institutional abuse claims

Claims for personal, domestic or family abuse are typically pursued against individuals or family members, while institutional abuse claims are directed towards organisations, such as schools, religious groups or government institutions, that failed in their duty of care.

The legal process for both types of claims can be similar in terms of seeking financial compensation for pain, suffering, and loss. However, institutional abuse claims often involve complex legal frameworks, especially when pursuing justice from large organisations with significant resources.

Where, when & who? The details of the abuse will determine how your matter is legally addressed.

When it comes to claiming compensation for abuse, the location, timing and who the abuser was can significantly affect the legal avenues available to you, the type of institution (if any) and the position of the abuser (e.g., teacher, priest, foster carer, if any) can also affect how a matter is managed. The type of claim you can make, the compensation options available and who will be held responsible will vary based on these factors.

For example, abuse in a school will often have different legal implications compared to abuse in a public setting or a family home. Understanding how these elements play into your case is essential, and this is where skilled abuse lawyers can assist you. We’ll look at a few scenarios to clarify how abuse in different contexts can lead to different legal approaches and compensation options.

Location of the abuse

The location where the abuse took place can significantly influence your claim. Different settings may have different legal frameworks, institutions involved and avenues for recourse. For example, abuse that occurs in a public setting, such as a park or on the street, may lead to a different type of claim compared to abuse that occurs within an institutional setting, like a school or foster care facility.

Timing of the abuse

The timing of the abuse is another crucial factor. In many cases, the age at which the abuse occurred (e.g., childhood vs. adulthood) will determine the claim options and the timeframe within which you can file your claim.

Limitation periods (time limits for filing claims) can also vary depending on when the abuse occurred and the legal jurisdiction in which the claim is made. It’s important to understand that while there are often time limits to pursue claims, there are exceptions, particularly for cases involving historical abuse, where the trauma may not have been fully understood or recognised at the time.

Who was the perpetrator?

The identity or position of the abuser also plays a major role in determining the legal response. Whether the abuser was an individual (e.g., a stranger, family member or friend) or an institution (e.g., a school, religious organisation, or foster care agency) makes a difference in the type of compensation claim you can pursue.

Examples of how location, timing and the perpetrator may impact your claim

Abuse is always wrong, and most victims can make a claim regardless of the specifics of their case. The same type of abuse in a different setting, or when the perpetrator has a

Abuse at school, by a teacher or staff member

If you experienced historic sexual abuse by a teacher or staff member, the school may be held responsible for a failure to protect you. Claims can be made for psychological or physical injury. You may be eligible to make a civil law compensation claim or access schemes like the National Redress Scheme.

Abuse in foster care or group homes by a carer

Claims for abuse, such as being physically or sexually abused in foster care or group homes, can be made against the government or care agency. Compensation may come from a civil claim, or specific compensation schemes like the Redress Scheme.

Abuse in a religious institution by a priest or minister

Abuse by a priest or minister may qualify for a civil claim or through the National Redress Scheme. Civil claims can be made against the religious institution for failing to prevent the abuse.

Abuse in a private setting by a relative, family member or stranger

Abuse claims that have occurred in private settings will target the abuser individually, but may also involve entities like child protection agencies if negligence occurred. Victims may receive compensation for psychological or physical injuries including medical expenses, lost income and pain and suffering. These claims can be dependent on the assets of the perpetrator.

Abuse in a public setting by a stranger

Abuse in a public setting can typically be handled via a civil claim or against the abuser directly. You can pursue claims for damages if the abuser is known or if negligence led to the incident.

These examples are not all-encompassing. Please get in touch with our team for compensation advice specific to your situation.

How is a historical abuse claim made?

In Victoria, a historical abuse claim can be made by contacting a lawyer who specialises in abuse cases or an organisation that supports survivors with legal matters. Some Australian institutions have joined the National Redress Scheme, but it’s important to get independent legal advice about what is right for you.

A survivor can sue the individual or institution responsible. There is no time limit for claims involving childhood sexual or serious physical abuse. Many claims are resolved through mediation or Redress schemes, but some matters will require court judgments.

Providing evidence

While it can be challenging to obtain evidence from decades ago to prove childhood sexual abuse or other abuse, the law may allow for a broad range of evidence that will be assessed depending on the nature of the incident.

Evidence may include:

Your own testimony
Medical or psychological records
School, welfare, or institutional documents
Witness statements
Patterns of institutional failure

What is vicarious liability?

In abuse law, vicarious liability means an institution (like a school or church) can be held legally responsible for abuse committed by someone acting on its behalf, such as an employee. The institution may be liable even if it didn’t directly commit or approve the abuse, because they allowed it to happen, or failed to prevent it from occurring.

Challenges of historical abuse claims

There are many challenges faced by survivors of abuse that can often make the legal process more challenging to navigate. This is why many matters are resolved years or even decades later, or are not addressed at all legally. Working with a trauma-informed legal team and care professionals who can provide support with an understanding of the impacts of abuse is vital for people who have experienced abuse.

Time limits

One of the biggest previous challenges in historical abuse claims are time limits, which is why in many cases, they no longer apply to abuse matters in Australia. Timeframes previously restricted many claims, but exceptions can be made for survivors who weren’t able to come forward earlier due to trauma or psychological barriers.

Trauma & psychological impacts

Survivors often struggle with emotional trauma that can delay their decision to pursue legal action. Psychological barriers like repressed memories or fear of reliving the abuse can make the legal process difficult.

Evidence issues

Historical abuse claims can be tough to prove due to the lack of physical evidence, lost records or unavailable witnesses. This can make gathering evidence required or supporting documentation of abuse, medical records and sustained injuries difficult.

Witness testimonies

Finding corroborating witnesses is often difficult. Many survivors suffer abuse in private, and those who may have seen or heard about it might be gone or unwilling to testify.

Institutional responses & liability

Proving institutional liability can be challenging. Institutions may deny responsibility, especially if the abuse occurred under a past administration or has been covered up over the years.

Fear of retraumatisation

For many, recounting their abuse in legal settings can bring back painful memories and cause additional trauma. This emotional strain is a significant consideration for many when deciding whether to pursue a claim.

Geographic & jurisdictional issues

Different states have different laws and limitations. Jurisdictional issues can arise if the abuse took place in different locations or involved multiple institutions.

Lack of support and recognition

Survivors may also struggle with the stigma of their abuse, particularly with institutional abuse claims that were historically ignored or denied. This lack of support can make pursuing a claim more daunting.

Does the person responsible need to be criminally charged?

No, you do not need to have the person responsible for the abuse criminally charged in order to pursue compensation, but you can, and may want to. If you wish to report the abuse but are not ready to pursue a compensation case or criminal charges, you can still make a report to the police. Reporting may help prevent further harm and hold the abuser accountable in the future.

Civil claims are separate from criminal cases, and you can seek compensation without a criminal conviction. Each case is different, and you may pursue both criminal and civil charges.

What if the person responsible has already been charged?

If the abuser has already been criminally charged, it may impact your compensation claim. You may be able to use the criminal case as evidence to strengthen your civil claim, though criminal convictions are not required for a successful claim.

Will I need to go to court?

In many cases, it is not necessary to go to court. Many survivors choose to settle their claims outside of court, especially when seeking redress payments or compensation through Victims of Crime compensation. However, for more complex or contested claims, you may need to go to court.

What if the identity of the abuser is unknown, or they’ve passed away?

If you do not know the identity of the abuser, you may still be able to pursue a claim, especially if the abuse occurred within an institution. Witness statements or institutional records can help identify the perpetrator. If the abuser has passed away, you may still be able to pursue compensation through their estate. Alternatively, institutional abuse claims can be made against the institution where the abuse occurred.

Other considerations for making a historical abuse claim.

There are some other matters that should be considered and discussed with your legal and support team if you want to claim compensation for historical abuse, which we’ll look at below.

Health impacts and support

Your claim may need to show the impact of the abuse, which may include:

Physical injuries
PTSD
Depression/anxiety
Ongoing psychological harm

This can be especially important for compensation assessments and may impact how much compensation you receive. It’s also essential to get support while you make a claim, and your legal team will often be able to provide free advice about suitable places to access mental, emotional and psychological support.

Choice of legal representation

Choosing the right legal representation for abuse matters is one of the most important decisions a survivor can make. A lawyer experienced in historical abuse claims will understand the sensitive nature of these cases and can guide you through the process with compassion, confidentiality, and professionalism.

The right legal team can also help maximise your compensation by identifying all potential avenues for a claim, whether through civil litigation, redress schemes, or negotiated settlements. Poor or inexperienced representation may lead to lower payouts, missed deadlines or added stress. Survivors should look for firms with a strong track record in abuse law, transparent fees, and a trauma-informed approach.

If a historical abuse compensation claim is successful, who pays the compensation?

In most cases, the responsible institution or individual will be required to pay for the compensation. This may include religious organisations, schools or the government. If the abuser has passed away, their estate may be used to fund the compensation. In some matters, an individual may not be able to pay, which can make the compensation process challenging.

Unfair or Lower-than-Expected Outcomes:

While rare, there are situations where the compensation may be disappointingly low. Some reasons for this may include:

Inadequate evidence or difficulties in proving the extent of harm.
Limited liability on the part of the institution, such as cases where the responsible institution is no longer in operation or where the abuse occurred too long ago.
Limitations in available legal options or caps on compensation, such as in the National Redress Scheme, where compensation payments are capped at $200,000 (though these payments are generally less than that).
Low emotional distress compensation or cases where the survivor doesn’t meet specific criteria set by the compensation scheme.

In some cases, it may be possible to access further compensation after receiving small amounts of compensation that were not fair or sufficient. This is called ‘re-opening a settlement’ or ‘setting aside a previous settlement’. In Victoria, this can happen if the original compensation was unfair, especially if the survivor didn’t have proper legal advice, was pressured to settle, or new evidence has emerged.

It is essential to consult with an experienced abuse lawyer who can offer a more precise estimate based on the individual facts of your case. Keep in mind that compensation is intended to help survivors heal and address the lasting effects of abuse, but no amount of money can undo the harm that was done.

How does a ‘no-win, no-fee’ option work if I make a claim?

Many abuse lawyers offer a no-win, no-fee option, which can make legal action more accessible. This means you won’t pay any legal fees unless your claim is successful, reducing financial stress. It’s really important to read and understand cost agreements, as different firms manage their agreements in different ways.

What other costs need to be considered when making a compensation claim?

When pursuing compensation for historical abuse in Victoria, it’s essential to understand the various costs and deductions that may reduce the final amount received. While compensation can be life-changing, several factors may impact the net amount survivors take home.

Legal Fees

Most abuse lawyers operate on a no-win, no-fee basis, meaning you only pay if your claim is successful. Always ask for an explicit cost agreement up front, and get some advice if there is anything you don’t understand.

Taxation

Generally, compensation for abuse is not taxable in Australia. This includes payments for emotional distress, pain and suffering.

Government Debts (e.g. Centrelink)

If you owe money to Centrelink or other government agencies, they may deduct it from your compensation. Centrelink debts might still be a factor in any other compensation claims that are made outside of the Scheme, but this is something to discuss with your legal team if it may impact your situation.

Medical & Psychological Costs

Any past treatment costs related to the abuse, such as therapy or medication, may be reimbursed or deducted if previously paid by Medicare or other providers. It’s essential to document your expenses carefully to ensure they’re considered.

Mental Health Support

While not deducted, ongoing counselling or support services may not be covered by your compensation unless included in the claim. Survivors are encouraged to access therapeutic support early in the process.

If you have concerns about how any outstanding debts or taxes might impact your compensation, it’s always a good idea to seek legal advice from an abuse lawyer who specialises in historical abuse claims. They can provide expert advice tailored to your situation and ensure that you are fully informed about your legal rights and the potential deductions from your compensation.

Is it worth making a compensation claim for historical abuse?

Determining whether pursuing a claim is worth it ultimately depends on the individual’s circumstances and goals. Compensation can provide vital support to help cover medical expenses, therapy, and emotional healing, and it can be a way to hold institutions or individuals accountable for the harm caused.

However, survivors and their support team must weigh the emotional costs of the legal process, as it can sometimes involve re-traumatising experiences during testimonies or recollections of abuse.

If you’re concerned about how much you’ll actually receive after legal fees and other costs, it’s essential to:

Seek a lawyer’s advice upfront to fully understand the likely legal costs involved and the amount of compensation you may be eligible for.
Ensure that you feel comfortable with the law firm’s fee structure.
Discuss any other potential costs that may arise in your case, such as medical expenses or private debts.

If you are hesitant because of the potential for re-traumatisation, it’s important to:

Speak to a lawyer about your concerns and ask what the best avenue for ongoing support is
Consider what support may be available through your current network, including your GP, counsellors you may see, support groups, friends and family.
If you decide to proceed, keep a good line of communication with your legal team and let them know how you are coping throughout the process.

Ultimately, the emotional relief and potential for justice may outweigh the financial costs for many survivors, but it’s essential to approach the process with a clear understanding of the legal and financial factors involved.

Making the choice to pursue compensation for historical abuse.

If you experienced abuse in an institution, such as a school, church, or foster care, the legal pathways available to you may differ from those for abuse that occurred in a family or public setting. Whether the abuse happened decades ago or more recently, you may still be eligible to make a claim.

Understanding your rights is the first step. With the right legal advice and support, you can make informed decisions, access the justice system, and pursue the compensation you deserve. You are not alone—help is available, and it’s never too late to seek accountability.

Where do I start if I want to make a historical abuse claim?

If you do decide to make a claim, the first step is to seek legal advice. Our abuse law team has extensive experience in abuse law and can guide you through the process, explain your options and help you gather medical evidence and witness statements to support your case. Please get in touch today for an obligation-free discussion about how we can help.

Can I claim compensation for historical abuse?