The Catholic church and other institutions are attempting to use the death or incapacitation of paedophile clergy to stymy more than a dozen cases brought by historical abuse survivors, an analysis of court records suggests.
The church has drawn widespread criticism since the Guardian revealed its recent, aggressive strategy to use the deaths of paedophile clergy to claim it can no longer receive a fair trial and block survivors’ civil claims permanently.
The strategy, largely adopted in New South Wales, relies on a key decision last year in the state’s highest court, which found the death of Father Clarence Anderson, an abuser long known to the Lismore diocese, rendered the church unable to fairly defend itself against a woman known only as GLJ.
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That’s despite clear evidence that high-ranking church officials knew Anderson was abusing boys at least four years before GLJ’s alleged assault, but did not remove him from the clergy, instead shuffling him through parishes where he continued to abuse children.
An analysis of court records suggests permanent stays are being sought or threatened in at least 13 historical abuse cases, the vast majority in NSW.
Eight of the 13 cases where stays are being pursued or threatened involve two Catholic orders, the Marist and Christian Brothers, which run schools across the country. They argue the death or incapacitation of alleged perpetrators leave them unable to receive a fair trial against survivors who are now looking to the civil courts for justice.
Those arguments are being mounted even where the perpetrators had a history of abusing children and where the institution held prior knowledge of other alleged offending.
Ellis Legal solicitor John Ellis – a survivor whose treatment in the courts forced a belated apology from the late cardinal George Pell – said there were likely many more matters where stays have been threatened in order to discourage survivors from pursuing their rights through the courts.
“It has been raised by the Marist Brothers without exception whenever a perpetrator has died and regardless of the complaints history of the perpetrator,” Ellis told the Guardian.
“It has even been raised in a matter where the Marist Brothers have given evidence that before the death of the perpetrator, the perpetrator had refused to respond regarding any allegations put to him.”
On Friday, the NSW supreme court heard allegations that Marist had sat on its hands for almost two years waiting for Brother Francis “Romuald” Cable, a notorious paedophile clergy member, to die before using his death to claim it could no longer receive a fair trial.
It was put on notice of a survivor’s claim involving Cable in 2020, but did nothing to attempt to put the allegations to Cable in the 22 months prior to his death. Marist’s lawyer told the court that Cable refused to talk to them when it approached him in 2015, the year he was sentenced to prison. Marist is now claiming it can’t receive a fair trial because Cable is unable to give any evidence about the alleged abuse.
The Christian Brothers is taking a similar approach in at least two cases, using the death or incapacitation of alleged perpetrators to argue it cannot receive a fair trial.
The child abuse royal commission found on average that survivors take 22 years to come forward due to a complex set of reasons.
It made findings that sought to remove barriers to justice, which prompted states and territories across the country to remove the statute of limitation period that applied to such cases.
Maurice Blackburn’s NSW abuse law leader, Danielle De Paoli, said the strategy of seeking permanent stays was undoing the royal commission’s important work.
“My view is that the position they’ve been taking in relation to stays is really undoing the good work that came out of the royal commission,” she said.
“The royal commission gave survivors a platform to speak and a platform for them to be heard, by threatening stays or making applications for stays, they’re actually doing the reverse. They’re making survivors question whether they will be believed.”
Porters Lawyers is representing at least two survivors who are facing the threat of a permanent stay due to the alleged perpetrator’s death or incapacitation.
The firm’s principal, Jason Parkinson said: “The indecent haste of the Catholic church to file permanent stay applications in matters relating to known, dead or demented paedophiles is, sadly, not unprecedented. When the statute of limitations was available, they threatened to take away the victims’ houses if child-abuse survivors had the temerity to sue the Holy Roman church – the houses of hard-working, Australian taxpayers.
“Given an opportunity, the church will attempt to crush the children they abused every time.”
The Guardian approached the Marist and Christian Brothers for a response.
GLJ is appealing to the high court, represented by Ken Cush and Associates. Her case will be closely watched by firms representing abuse survivors.
