The Age (Victoria, Austrlia)
Chrissie and Anthony Foster. Photo: Justin McManus
Child rape victim Emma Foster received $450,000 compensation from the Catholic Church when the church limit was $50,000 because she took the church to court, the Victorian inquiry into how the churches handled child sex abuse heard on Tuesday.
Peter O’Callaghan QC, the independent commissioner for the church’s abuse system, admitted he wrote to the church’s lawyer Richard Leder about “flushing out the Fosters’ real intentions” because he suspected they would use his Melbourne Response finding in court.
He also admitted going to the Fosters’ home and trying to persuade Emma to accept the church offer, saying it was because she was about to turn 18 and the legal arrangements would change.
Emma and Katie Foster were serially abused at primary school by paedophile priest Kevin O’Donnell. Emma later committed suicide, while Katie is in a wheelchair after being hit by a car.
Anthony and Chrissie Foster told the inquiry in November that Cardinal George Pell showed a “sociopathic lack of empathy” when he met them, and challenged them “if you don’t like what we are doing, take us to court”.
They did so, winning nine times the Catholic maximum for Emma, another much larger payout for Katie and costs, but Tuesday’s hearing was the first time the sum has been named. There were gasps in the public gallery when it was read out.
Mr O’Callaghan was eager to rebut earlier evidence attacking his independence and behaviour by Victoria Police, which he said was often “plainly wrong and seriously misconceived”. He had worked with police in setting up procedures and shared files with victims’ permission.
He said widely reported dissatisfaction with his role was largely due to the influence of victims’ advocate Helen Last, and was greatly exaggerated. “I am sure some victims were dissatisfied, but they are very much a minority,” he said.
Denying that he had a conflict of interest, he said the Melbourne Response had been a world innovator by providing a remedy for victims who did not want to take legal action.
The Melbourne Response’s other independent commissioner, Jeff Gleeson SC, paid a warm personal tribute, calling Mr O’Callaghan “one of the most decent men I’ve ever met, wise, compassionate and just”.
“It is suggested that he doesn’t care, that he’s on the side of the church, and it’s not true. Those who are quietly satisfied have not given evidence to the inquiry – that’s the nature of things.”
Mr O’Callaghan said he helped victims report cases to the police, often ringing the appropriate officer on their behalf, but there was no point in reporting allegations to police if the victim did not want the police to pursue them. He said police had not provided any details of cases they felt he handled inappropriately.
He said that being hired and paid by the Catholic Church did not affect his independence, and to claim otherwise was “a grave allegation”.
“I was akin to a royal commissioner,” Mr O’Callaghan said.
He said he had assessed 330 complaints since being appointed in 1996, upholding 304, or 97 per cent.
Mr Gleeson said he advised victims they could get legal representation but that they did not need it as he would advise them.
Catholic Church Insurance CEO Peter Rush said the company had paid 600 Victorian victims about $30 million since it started providing clergy sex abuse liability insurance in 1991, but it did not pay the Fosters.
Mr Rush said it was quite likely that CCI had told bishops to “admit nothing”, as claimed by former Ballarat Bishop Peter Connors on Monday.
“In the early 1990s that would have been the way we advised our clients, quite wrongly. It was the way insurers ran liability. That ceased with the introduction of Towards Healing and the Melbourne Response [in 1996]”.
He confirmed that CCI declined to indemnify the church for any claims against serial paedophile Gerald Ridsdale for abuse after 1975, when Bishop Ronald Mulkearns knew of his “propensity to offend”.
CCI, which is owned by Catholic dioceses and religious orders, had refused to cover about 30 of the 600 payments, mostly because the bishop in the case had known about the offender.
Church insurer had ‘exclusion list’ of priests it wouldn’t cover
01 May 2013
by: Stuart Rintoul
CATHOLIC Church insurers have paid out $30 million to 600 victims of abuse since 1990 and have revealed the existence of an “exclusion list” of priests they would not indemnify the church against because they were known by the church to be offenders.
Catholic Church Insurance chief executive Peter Rush said the insurer refused to indemnify the church against claims involving pedophile priest Gerald Ridsdale for offences committed after 1975 after it “ascertained” that was when Ballarat Bishop Ronald Mulkearns learned of his “propensity to offend”.
He said the same “prior knowledge” test was applied to pedophile priest Michael Glennon and revealed that CCI did not cover the church in a $450,000 out-of-court settlement in 2006 with Emma Foster, who was raped when she was in primary school, along with her sister Katie, by pedophile priest Kevin O’Donnell and who took her own life in 2008.
The settlement paid to Foster, the amount of which was revealed at the inquiry for the first time, was nine times the $50,000 cap paid to victims under the church’s Melbourne Response process at the time, which is now capped at $75,000.
Outside the Victorian parliamentary inquiry into the handling of child abuse by religious and other organisations, Foster’s parents Anthony and Chrissie Foster demanded the “exclusion list” of known pedophile priests be produced to reveal the names of the priests and when their offences were known by the church.
Mr Foster also criticised the church’s Melbourne Response, which was established in 1996 to deal with abuse cases, saying it was “set up to protect the Catholic Church” and to minimise compensation paid to victims, which was “nowhere near enough”.
Melbourne Response commissioner Peter O’Callaghan QC told the inquiry Melbourne Response had dealt with 330 cases of abuse, 304 of which had been upheld. Of those, 234 were male and 70 female.
In almost three hours of evidence, he claimed he had acted in a way “akin to a royal commissioner”. He said he had found in favour of 97 per cent of complaints and denied Victoria Police assertions he had discouraged victims from taking their complaints to police. He also stated his “abhorrence” of child sexual abuse.
Appearing with fellow commissioner Jeff Gleeson SC, who described Mr O’Callaghan as “one of the most decent men I have ever met”, he said Melbourne Response was set up to provide a remedy to victims who might otherwise have none.
In his evidence yesterday, Mr Rush agreed that in the early 1990s the church’s insurers and lawyers would have “quite wrongly” advised the church to “admit nothing” in order to limit its financial liability.
Church may lose ‘shield’
Victoria’s clergy sex abuse inquiry is likely to recommend at least six state laws be reformed to hold the Catholic Church to account, including removal of the legal ”shield” it has used to avoid being sued by victims.
Chairwoman Georgie Crozier said the committee already had a good idea of the sort of recommendations it would make. Fairfax Media understands the committee is eager for several laws to be changed this year.
The Victorian inquiry does not need to await the outcome of the royal commission into the sexual abuse of children, set up by the Gillard government and yet to take formal evidence. Ms Crozier said she expected the state inquiry to be of great use to the commission.
Enabling the church to be sued, mandatory reporting of suspected abuse, concealing crimes and extending the statute of limitations for child abuse are all issues that could be dealt with by the Victorian government.
Ms Crozier said at the first hearing for 2013 that the committee now had a good idea of the terrain its report would cover, based on the wide evidence it had already heard. The inquiry is expected to recommend amending the Property Trust Act to halt the so-called Ellis defence, named for a case in New South Wales, which the church uses to say it is not actually an entity and therefore there is nothing for victims to sue.
Anti-abuse campaigner Anthony Foster said the Victorian inquiry would be more important than the royal commission in holding the church to account and improving the plight of victims.
”Much of what the Catholic Church has done has been terrible, but some of it has been done within the framework of the laws of our society, and it’s the state laws that need to be changed,” he said.
The corporations sole legislation, which sets churches apart from companies, could also be reformed. Company chief executives are responsible at law for actions by their predecessors, but bishops are not accountable for the actions of previous bishops.
Many witnesses have mentioned mandatory reporting of suspected child abuse, which applies to such professionals as teachers and doctors. The Victorian Catholic Church has recognised some form of this is inevitable by advocating a version of it for the first time in its submission to the inquiry.
But witnesses have said mandatory reporting must be to the police, because it involves suspected crimes, rather than to the Department of Human Services, as in the case of doctors and teachers. Witnesses have been divided on whether mandatory reporting should also apply to the confessional, which the church insists is sacrosanct and inviolable.
Witnesses have also suggested that the statute of limitations must be amended because it can take decades before victims of child sex abuse can admit what happened to them and seek redress.
Lawyer and advocate Judy Courtin said vicarious liability was another important area. Under the present common-law arrangements, the church has argued there is no employer-employee relationship between bishop and priest, although this was recently rejected by a British court.
In Victoria, concealing abuse is not an offence under the Crimes Act, as it is in NSW, although it comes under the common-law offence of misprision, and the inquiry is likely to recommend formalising it.
The committee is also likely to consider the church’s internal procedures for dealing with abuse complaints, under which not one offence has been reported to police although the church admits settling 618 claims in the past 16 years.
Witnesses have suggested there is a conflict of interest in the church’s investigator, Peter O’Callaghan, QC, calling himself an independent investigator when he is paid by the church.