The Catholic Church has argued a deceased choirboy's father should not be permitted to sue the clergy because he is not the direct victim of Cardinal George Pell's alleged sexual abuse.
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The father, who cannot be named for legal reasons, is seeking damages against the Catholic Archdiocese of Melbourne and Cardinal Pell in Victoria's Supreme Court.
He claims to have suffered psychological injury including nervous shock upon finding out about his son's alleged abuse in the mid-1990s.
Cardinal Pell was in 2018 convicted of molesting two teenage choirboys in the sacristy at St Patrick's Cathedral while he was Archbishop of Melbourne in 1996.
Pell has always maintained his innocence and his conviction was quashed in a unanimous decision by the High Court in 2020. He walked free in April 2020 after serving 13 months in prison.
One of the two choirboys died of a drug overdose in April 2014 and his father was informed about the boy's alleged abuse the following year by police.
The father claims to have lost money to medical expenses and earning capacity, due to suffering from several psychological conditions after finding out about his son's alleged abuse.
However, Catholic Church barrister Chris Caleo QC on Thursday argued that, under the legislation, the father cannot sue the church because he is a secondary victim.
"Child abuse plaintiffs, in its ordinary and natural meaning, means persons subjected to child abuse who then sue for the injury caused to them," he told the court.
Prior to 2018, the Catholic Church could deny liability to sexual abuse victims using the Ellis defence.
Unincorporated associations, such as churches, now have to nominate an entity able to pay damages.
The father's case is the first to test whether amended legislation, which aimed to abolish the Ellis defence, can extend to secondary victims including family members.
His barrister Julian Burnside QC rejected the church's argument and said the law allowed for claims to be brought against the clergy "founded on or arising from child abuse".
"A claim by a secondary victim is also a claim for child abuse. Or, strictly speaking, a claim founded on or arising from child abuse," he said.
He said the church was arguing that if the victim of child abuse died then the victim's family had "no remedy, they have no one they can sue".
"That's plainly wrong in our submission, it cannot be what parliament intended," Mr Burnside said.
Justice Michael McDonald will deliver his decision at a later date.
Australian Associated Press
