November 6, 2013

Melbourne lawyer Vivian Waller has spent nearly two decades chasing justice for hundreds of victims of sexual abuse by Catholic clergy. And it’s nowhere near over.

Lawyer Vivian Waller. Photo: Susan Gordon

For decades, the scandal of Catholic clergy sexual abuse of children has simmered, flaring up every now and again when yet another paedophile priest is convicted and jailed. Now, the issue is set to reach boiling point as the Catholic Church in Australia faces forensic scrutiny and publicity from three government inquiries into how much its leaders knew, when they knew it – and what they did about it.

On November 15, the Victorian inquiry into the handling of child abuse by religious and other organisations hands its report to the government, after almost 18 months of hearings and submissions.

There are priests, former priests, wandering around our community and nobody except the Catholic Church knows their history.

A few weeks later, on December 9, the federal government’s Royal Commission into Institutional Responses to Child Abuse begins two weeks of hearings examining the Catholic Church’s national ”Towards Healing” response, set up in 1996 to deal internally with sexual abuse allegations. And, in NSW, an inquiry into the police investigation of child sexual abuse in the Catholic Diocese of Maitland-Newcastle is due to report by February 28.

The Christian Brothers spent $158,000 on legal costs for Robert Charles Best in his 1996 trial on child sex charges. He was convicted and jailed, but 14 years later, when Best was convicted of a further 27 offences against 11 boys, the Christian Brothers spent another $980,000 on legal fees.

For Melbourne lawyer Dr Vivian Waller, her wish list from the inquiries is topped by a typically blunt assessment. ”The church should no longer be trusted to deal with this issue in-house.”

Waller has spent the past 19 years chasing justice for hundreds of victims of Catholic clergy abuse. Many of her clients have been abused by Christian Brothers – she files these matters under ”U’ for unchristian. Since she set up her own firm Waller Legal in 2007, she has never advertised her services, but her three-room office in Thornbury has files stacked five deep on tables and the floor.

Every week, she sits down with three or four new clients and spends hours listening to their harrowing stories. ”I keep waiting for the phone to stop ringing, but it never does,” says Waller, who operates on a no win-no pay basis.

Father Kevin O’Donnell, one of Australia’s worst paedophiles, was known by police as the ‘two-a-day’ man. Photo: ABC screengrab

Until recently, the typical compesation amount offered by the Catholic Church to her clients was $10,000-$20,000. Most accepted these paltry sums, because the alternative – suing the church through the courts – was almost impossible.

Waller concedes the settlements have become more generous, particularly since Christian Brothers paedophile Robert Charles Best was convicted in 2011 and jailed for more than 14 years. Best was the principal of Ballarat’s notorious St Alipius School, which at one point had four Christian Brothers teachers who were all later convicted of child sex offences.

Now, Waller says, the church’s compensation offers under Towards Healing, which has no cap, are more likely to be $100,000-$200,000. But she’s far from satisfied that it can be trusted to deal in-house with all victims fairly, honestly and with compassion.

Here’s an example from as recently as September this year, which, Waller believes, shows a disturbing continuation of the culture of denial.

Her client, Darcy Higgins, alleges that he was sexually assaulted several times by Father Kevin O’Donnell at St Joseph’s Catholic School in Chelsea in the mid-1940s. His compensation claim, through the Catholic Church’s Melbourne Response (the local version of ”Towards Healing”, which has a maximum payout of $75,000), elicited an offer of just $32,500, even though the commissioner accepted that Higgins was sexually abused by O’Donnell and the church’s psychiatrist found it likely that the abuse was a factor in the development of Higgins’ acute chronic depression.

In July, Higgins wrote a letter to the Archbishop of Melbourne, Denis Hart, asking him to increase the offer and to ”please think deeper about this lifelong horror”. In one paragraph, Higgins complained that O’Donnell (referred to by police as ”the two-a-day man”), stayed in the Church’s service ”even when the knowledge of his evil became known, being moved around, hoping his attacks on the innocent [would be] avoided”.

Hart’s response, which was dated September 10, acknowledges that the commissioner accepted Higgins’ complaints of sexual abuse by O’Donnell and that this abuse was ”a gross breach of trust, unforgivable and wrong”.

But he declined to increase the offer made by the compensation panel and said there was no scope for him to depart from that recommendation.

”You refer in your letter to O’Donnell having been moved around and protected when his abuse became known,” Hart wrote. ”While I am aware of these allegations having been made, I have no evidence that this occurred.”

Four months earlier, however, Hart took a different approach at the Victorian inquiry on the handling of child abuse. The transcript of his evidence on May 20 shows Hart agreeing with deputy chairman Frank McGuire that ”O’Donnell was one of the worst group of paedophiles in Australia’s history”.

McGuire then says: ”Paedophile clerics were moved on to innocent parishes and to innocent children. Do you agree with that?” Hart replies: ”I certainly agree that is there in the case of O’Donnell and [Father Wilfred] Baker.”

In an emailed response, a spokesman for Hart says he told the inquiry he was aware that one of O’Donnell’s victims had come forward to a church leader, Monsignor Moran, there was no record of what Moran had done as a result, and in 1993 Archbishop Little swore on oath that he had not known about O’Donnell’s offending until 1992.

”The September letter is not inconsistent with [Archbishop Hart’s] testimony at the inquiry,” the spokesman says. ”In the case of [Father] Baker, there is evidence that Archbishop Little knew of the complaint and moved him. In the case of O’Donnell, there is no such evidence.”

Waller will have none of it. ”Victims are still receiving denials from the church, even after concessions have been made in the parliamentary inquiry. And they are still receiving offers of compensation that are ”non-negotiable” and are significantly less than what they would be entitled to if they had a viable civil claim”.

She would like an independent compensation scheme established, as happened in Ireland after the nine-year Ryan Commission on child abuse. That scheme, partially funded by the Irish Catholic Church, dealt with an avalanche of 16,000 claims arising from systemic and pervasive abuse in scores of schools and orphanages across the country.

Of course, as Waller has learnt over the years, it’s not just about the money. ”No amount of money can put back a shattered childhood,” she says, outlining lives destroyed by alcoholism, drug addiction, mental illness and suicide. ”Sexual abuse derails the entire course of their life.”

Justice also demands that the offenders are called to account – and on this front, too, Waller has found the Catholic Church wanting.

”This isn’t rocket science. Most members of the community understand that criminal matters should be reported to the police, not swept under the carpet.” (The Victoria Police, in a scathing submission to the inquiry, said that not one of the 86 offenders identified by the Melbourne Response had been referred to the police.)

It’s an issue that greatly concerns Professor Patrick Parkinson, of the University of Sydney’s faculty of law. In evidence to the Victorian inquiry in October last year, he said the Catholic Church deserved credit for establishing its ”Towards Healing” and ”Melbourne Response” schemes.

But he argued that the schemes can’t be just about compensation, they must deal with the offenders. ”You want the police to be involved. You want prosecutions to occur,” he said. In cases where the police do not press charges, for example, or a case is dropped, Parkinson said there must still be a disciplinary process to prevent offenders from gaining access to children.

”That is where I have the most concerns because … there are priests, former priests, wandering around our community and nobody except the Catholic Church knows their history,” he told the inquiry, adding that the Church’s ”Facing the Truth” submission did not contain any information on what had happened to these offenders. (The submission states that many offenders are dead or in prison, while ”the majority” of the rest are elderly, retired and ”have no authority to exercise public ministry”.)

Parkinson acknowledged that many people have made a real effort to ”cut this cancer out of the church”. But he told the inquiry that the only way to move forward was for the church to give a complete account of all the offenders against children and hand its files to the police. He urged the resignation of all those, including some now in high positions in the church, who had been responsible for the cover-ups over the years.

Parkinson also discussed the over-representation of Catholic clergy in church sexual abuse cases. Both the Victorian inquiry and the federal royal commission are examining cases in other churches and in non-church organisations such as the Scouts, the Salvation Army and the YMCA. But Parkinson’s research suggests that there has been at least six times as much child sexual abuse in the Catholic Church as all the other Australian churches combined.

”When you are looking at abuse in churches, by far and away the largest problem is the Catholic Church,” he told the Victorian inquiry.

This is partly because the Catholic Church is the largest religious organisation in Australia, and partly because Catholic clergy have been more directly involved in schools and orphanages. Another reason is that the Catholic Church, by its own admission, has been disastrously slow to realise these were not random acts of rogue priests but widespread and systemic criminal abuse of hundreds and hundreds of children.

Its initial response, to turn a blind eye, deny, cover-up or move offenders to other parishes, has compounded the suffering.

Waller is bewildered by the aggression with which the church (and its insurers) fights some compensation claims, often relying on highly technical legal defences. She also is bewildered by the vast sums the church has spent on defending its paedophile priests.

For example, the Victorian inquiry heard in May that the Christian Brothers spent $158,000 on legal costs for Robert Charles Best in his 1996 trial on child sex charges. He was convicted and jailed, but 14 years later, when Best was convicted of a further 27 offences against 11 boys, the Christian Brothers spent another $980,000 on his legal fees. Best, now in prison, remains a member of the Christian Brothers congregation.

It is examples such as this that propel Waller’s fervent hope that the Victorian inquiry and the royal commission recommend the establishment of an independent authority to compensate victims and refer offenders to the police.

Indeed, it is difficult to understand, after reading through transcripts of evidence given to the Victorian inquiry, how the Catholic Church in Australia has been allowed to keep the issue in-house for so long. David Marr, in his devastating Quarterly Essay ”The Prince: Faith, Abuse and George Pell” , points the finger squarely at political leaders, in particular former prime minister John Howard.

While Waller is angry and frustrated that some of her clients feel short-changed by the church’s response to their abuse, she also says many of them are greatly comforted when she listens to their story. ”We can achieve a result that’s great, average or disappointing in legal terms, but it’s healing for them to have someone listen,” she says. ”Sometimes the greatest gift that can be given is bearing witness and really hearing someone. Deep listening can alleviate suffering, I think.”

The Victorian inquiry and the royal commission give victims their best chance yet of being listened to – and in a public forum. But Waller is under no illusion that this sordid and tragic story is nowhere near over. ”I know we are still only dealing with the tip of the iceberg,” she warns. ”Many people are still afraid to come forward about what the church hierarchy knew. They are waiting to see what happens with the parliamentary inquiry.”

She is also well aware that the evidence and recommendations of the inquiry and the royal commission will reverberate well beyond victims and their families.

”I feel for the decent, hard-working, trusting Catholic parents who sent their children to the care of the Catholic clergy,” she says. ”I feel for decent parishioners who were lied to about why a priest was moved on or promoted, and inadvertently became complicit in a cover-up. I feel for decent priests and Catholic clergy who would harm no one. But everyone needs to ask, and to receive an answer – how did this happen?”

Lucinda Schmidt is a Melbourne writer and lawyer.