The Catholic church has been accused of causing added trauma to a survivor after it tried to thwart his case involving a notorious jailed paedophile priest by claiming he could not have been an altar boy because he was baptised in the Anglican church, a move that delayed the case for a year.
The accusation adds to a litany of complaints about the legal tactics being employed by the church in abuse cases, including its repeated attempts to permanently halt cases where paedophile clergy have died, a practice first revealed in an investigation by Guardian Australia.
In late 2020, a survivor who wishes to remain anonymous, sued the Maitland-Newcastle diocese for alleged abuse at the hands of the notorious pedophile Father Vincent Ryan, a priest who, before his recent death, served more than two decades in jail for abusing dozens of children.
The survivor alleged he was abused by Ryan at St Joseph’s Catholic Church in Cessnock in the early 1990s, when he worked as an altar server for Sunday mass.
His lawyers, Slater and Gordon, say the church took an aggressive approach to the claim, denying in court documents the abuse could have occurred because the plaintiff had been baptised in the Anglican church. The church alleged that this meant he could not have been an altar server at St Joseph’s and therefore could not have been abused.
The Slater and Gordon New South Wales abuse lawyer Jonathan Georgaklis said the suggestion delayed the claim by more than a year, as the survivor gathered statements from family and former acquaintances, some of whom he hadn’t spoke with in more than a decade, to prove he had served as an altar boy at St Joseph’s.
The process caused added trauma and significant legal expense. When he presented the fresh statements showing his service at the church, the church settled.
“It’s incredibly disappointing for abuse survivors to be treated so poorly by the institution that failed to protect them in the first place and is vicariously liable for the significant impact the abuse they suffered [had] on their lives,” Georgaklis said. “Abuse victims deserve better.”
The diocese said in response that it “regrets any further distress caused to survivors during proceedings”.
In a statement, it said the case was far more complex than simply a question about the religion of the survivor. The diocese said Slater and Gordon was focusing on one aspect of the case.
“[Slater and Gordon’s statement] does not acknowledge the evidence the diocese had from people who were involved in the church and the parish at that time the alleged abuse occurred that raised serious questions as to what actually happened,” the diocese said.
“The doubts that arose in investigating the claim were far broader than a simple question of the religion of the individual involved.”
The diocese said Slater and Gordon produced “credible, independent witness statements in November 2022”. That allowed the diocese to have sufficient certainty that the claim should be settled.
“Some legal firms present strong, well-prepared claims from the beginning that may allow the diocese to resolve the claim sooner than when there is enduring uncertainty.”
Guardian Australia has revealed a shift in the tactics of institutions in abuse cases – primarily Catholic orders operating in NSW – over the past 12 months.
Interviews with more than a dozen plaintiff lawyers and survivors, as well as an analysis of court records in 13 cases, reveal the church is routinely seeking permanent stays where clergy have died, arguing they can no longer receive a fair trial.
Permanent stays, where granted, halt survivors’ claims in their tracks and prevent them from reaching trial.
The church is also using the threat of permanent stays in such cases to low-ball survivors in settlement negotiations, abuse lawyers say.
The tactics, which will be the subject of a Four Corners episode on Monday night, has caused outrage among survivors.
They say the church, itself the architect of a decades-long cover-up of abuse, is effectively using the delay and ensuing death of perpetrators to argue that it can no longer receive a fair trial.
Institutions were emboldened by a decision in the NSW court of appeal last year, first reported by Guardian Australia, which ruled the death of the Lismore priest Father Clarence Anderson left the diocese unable to fairly defend itself against the allegations of a woman known as GLJ, who alleges that she was abused as a 14-year-old girl in 1968.
Court documents show the church had known of other abuse complaints against Anderson before GLJ’s abuse but failed to remove him from circulation, instead moving him between parishes, including Kyogle, Macksville, Maclean and Lismore. All four parishes showed complaints of abuse against Anderson, according to church records unearthed in the case.
GLJ’s lawyers, Ken Cush and Associates, have appealed the decision to the high court. The case is due to be heard in early June.
In another case, also revealed by Guardian Australia, the Marist Brothers Catholic order used the recent death of Brother Francis “Romuald” Cable, one of NSW’s worst Catholic school offenders, to attempt to block a claim by one of his survivors.
The Marists argued his death left the order unable to ask him about the abuse and therefore unable to receive a fair trial.
That argument was made despite the Marists being on notice of the claim for 22 months before Cable died.
They did nothing to seek his response to the allegations in that period.
Lawyers for the survivor, known by the pseudonym Mark Peters, accused the Marist Brothers of deliberately waiting for Cable’s death and then using it to stay the case.
The mother of another of Cable’s victims, Audrey Nash, whose son died by suicide aged 13, heavily criticised the church for its tactics.
“It’s disgraceful. Just disgraceful,” she said earlier this year. “More than that, it’s gutless … They learn nothing, they don’t change. In fact, they get worse.
“Now Romuald is dead, they’re trying to make out you can’t sue. I don’t know, it’s just awful. It really is. It’s worse than that, but I can’t say the words, the swear words.”
The NSW supreme court recently rejected the church’s attempt to use Cable’s death to stay the claim, finding the Marist Brothers should not have “the benefit of its own inaction”.
More recently, Scouts NSW was also successful in seeking a stay in a case where the perpetrator was still alive and available to give evidence about his former employer’s deficient child protection systems.
Despite his availability to give evidence, the courts found he would not be a reliable witness, because he may tend to give evidence that shifted blame onto his former employer.
That, combined with the absence of records and the deaths of other witnesses, left the institution unable to receive a fair trial against allegations it had failed to protect the survivor from harm, the court found.
The decision is being appealed.
The child abuse royal commission did not recommend reforms to end the ability of institutions to use stay applications in abuse cases, though critics say it could not have contemplated that they would be used in this fashion.
The royal commission did, however, make clear recognition of the barriers that delay survivors from coming forward for, on average, 22 years. The royal commission recommended that time limits on bringing claims be removed in recognition of the delay, leading to reforms across all jurisdictions.
Plaintiff lawyers and survivors, including John Ellis, say the use of stay applications where clergy have died goes against the intention of those reforms.
“In circumstances where there has been strong evidence in the royal commission of religious bodies being aware of abuses and covering them up, creating a situation where the leaders of the religious bodies became ‘the keepers of the secrets’, it is immoral for the same institutions to rely on the delay by survivors in coming forward … [and] the death of those ‘secret keepers’ to defeat the claims of survivors,” Ellis said earlier this year.
