Case study 11: Hearing room updates

Update 34
Final Update
Tuesday 6 May 2014 – Day 7

Brother Tony Shanahan, former Leader of Christian Brothers’ Province of Western Australia and South Australia, continued giving evidence to the Royal Commission this morning.

He was again taken to historic correspondence between representatives in the Brothers about the extent and way in which offending brothers had been dealt with between 1919 and 1969.

Following an examination of the correspondence Counsel Assisting, Gail Furness, put to Br Shanahan that there had been some 70 individual brothers named who had been identified as having some involvement in abuse, and that 18 of those were repeat offenders.

Br Shanahan was questioned about the establishment of CBERS and the suspicion with which the scheme was initially met by some survivors. Br Shanahan said that over time he felt that survivors ultimately came to trust the scheme and the services it was providing.

Commissioner McClellan asked Br Shanahan about both the motivation behind the public apology made in 1993 and the extent of compensation the Brothers were willing to pay survivors.

He was also asked about the legal strategy adopted during the Slater & Gordon class action and if the Brothers had considered mediation and the amount of money being spent on legal fees.

Brother Shanahan said if the litigation was conducted today he would make much greater efforts to find a non-litigious outcome perhaps through mediation or another alternative dispute resolution mechanism.

He said the Brothers should have moved sooner towards a settlement and that when the settlement came, should have been less concerned about its impact on the Brothers than on the survivors.

When asked again about recruitment, Br Shanahan said the practice of taking novitiates before they finish secondary school has long been discontinued.

“There is a recognition that people need to have some time to mature and get some life experience before they make a commitment to a religious vocation.”

Br Shanahan said before young men enter residential training there is usually a period of extended contact with the Brothers, usually through a particular Brother who might remain in contact with the young person.  There might be a shorter live-in period, a sort of "come and see" to …get a taste of community life”.

“In other words, the whole process is taken more gradually so that people are able to get a sense of what they are letting themselves in for.”

Brother Julian McDonald, the current Deputy Province Leader of Christian Brothers’ Province of Oceania, started his evidence to the Commission with information about the conduct of the defence of the Slater & Gordon class action.

In questioning from Commissioner McClellan, Br McDonald agreed that the Brothers have a responsibility for the behaviour of the Brothers who committed abuse on children in the WA institutions

Br McDonald said litigation was alien to him and that he would have preferred to settle the cases through mediation. He said his concern was that he thought people were being re-abused by being part of the class action and were being made promises that would never be kept.

Br McDonald will continue giving evidence tomorrow.


Update 33
Monday 5 May 2014 – Day 6

The second week of the Royal Commission’s public hearing into four farm schools and orphanages operated by the Christian Brothers in Western Australia in the 1950s and 60s commenced today with evidence from Mr Bruno Fiannaca SC, Acting Director of Public Prosecutions WA.

Four Christian Brothers have been the subject of charges for the sexual assault of children at one or more of the institutions.

Mr Fiannaca gave evidence about why other Brothers have not been prosecuted and said the lack of corroboration, the long delays in reporting the abuse and the age of some of the accused, all contributed to the decisions not to prosecute.

When asked by Commissioner McClellan, Mr Fiannaca agreed the law has struggled to appropriately respond to offences relating to child sexual abuse.

Following Mr Fiannaca, Brother Anthony (Tony) Shanahan, former Province Leader of Christian Brothers’ Province of Western Australia and South Australia, started giving evidence.

Br Shanahan, who is currently working in Ghana as Novice Director is a trained psychologist and teacher.

Br Shanahan gave evidence about the training and formation of Christian Brothers, which involves the academic and spiritual preparation of men ahead of taking their final vows.

He also gave details about the relevant rules within the Christian Brothers Constitutions since 1947 which related to child protection including how Brothers should interact with children in schools and in their care.

Br Shanahan gave evidence about assistance offered by the Christian Brothers to former child migrants since 1989, which included financial and other child migrant support services, assistance with family tracing services and reunions and counselling.

Brother Shanahan was also taken through a history of correspondence starting in 1919 detailing allegations and other complaints against Brothers and the way in which they were dealt with.

At the end of the day’s hearing Commissioner McClellan and Br Shanahan had an exchange about what could have been the reasons for the historic abuse within the Brothers and the Catholic Church more generally.

Brother Shanahan highlighted issues of personal and sexual immaturity, lack of appropriate training and historic, inappropriate screening of candidates wanting to enter religious life.

Brother Shanahan said there was no credible evidence to support the suggestion that celibacy was a significant contributing factor to sexual abuse within the Church.

He told the Commission that it was more likely personal immaturity both within the Church and broader society was a significant factor in most abuse cases.

Br Shanahan will continue giving evidence tomorrow.


Update 32

31 April, 1 May 2014
Day 4: Thursday 1 May 2014
Day 5 Friday 2 May 2014

Day four of the Royal Commission into Institutional Responses to Child Sexual abuse continued in Perth with the public hearing into Christian Brothers’ orphanages and farm schools in WA with evidence about a class action on behalf of residents.

Between 1993 and 1996, more than 200 men signed on to a class action, run by Slater & Gordon, seeking damages for the abuses suffered at the institutions.

The Commission heard from the two lawyers involved in the litigation: Hayden Stephens, from Slater & Gordon and Howard Harrison, a partner with Carroll & O’Dea, who represented the interests of the Christian Brothers and individual defendants.

Evidence was given concerning the issues that were raised by the litigation; the limitation period in which such action could be taken and who was the proper defendant to be sued.

The class action was resolved by the establishment of the WA Institutions’ Reconciliation Trust, to hold the $3.5 million paid by the Christian Brothers as part of the settlement to be dispensed by the Trustees by way of payments and other assistance to the former residents.

In addition to the payment into Trust, $1.5 million was paid to Slater & Gordon for its legal costs. The payment made to former residents was a minimum of $2000 each with some former residents receiving up to about $40,000, and one former resident receiving over $70,000.

Mr Stephens told the Commission about the history of the litigation and the subsequent settlement negotiations between the Christian Brothers and Slater & Gordon.

In evidence, Mr Stephens told the Commission that while litigation had a place in resolving sexual abuse calms he said “if these claims could be resolved without the need to drag these men through a lengthy court battle then they should…”

Mr Stephens, after questioning from Chief Commissioner McClellan, agreed that the issues of time limitations and identifying an appropriate organisation to sue were the key legal hurdles during the litigation.

Following the conclusion of Mr Stephens’ evidence Mr Howard Harrison, Carroll O’Dea Partner with the conduct of the litigation on behalf of the Christian Brothers, commenced giving evidence.

Mr Harrison gave evidence about the Brothers’ awareness of the abuse at the time and of their understanding at the time of the litigation.

Mr Harrison also gave evidence about the reputation of Slater & Gordon as an aggressive law firm with a history of running major class actions and the extent to which this influenced some of the legal decisions.

Mr Harrison said the Brothers preference would have been to have the cases resolved with some kind of pastoral approach but the Court proceeding required a legal response.

“I was well aware from my conversations with Brother Julian and other Brothers that they were far from comfortable with a legal defensive posture in relation to these cases. They accepted that the Slater & Gordon kind of tsunami had to be managed, but underneath all of that was a need, in terms of the values and mission of the Christian Brothers, to get these cases into some kind of resolution where there was some prospect of reconciliation and healing,” Mr Harrison said.

Day Five of the Perth hearing started with Howard Harrison continuing to give evidence.

During his testimony Mr Harrison said a legal solution to determining issues of sexual abuse is “no solution”.

Mr Harrison said the way in which the Christian Brothers deal with cases of abuse now is vastly different to the approach in the early to mid-1990s including encouraging victims to gain legal representation which is paid for by the Brothers.

The Brothers will also hear the complaint in whichever forum the complainant wishes whether that be courts or through mediation. The Christian Brothers always now make themselves available to meet with the victims if the victim so wishes.

Mr Harrison said the process including the timing is now driven by the wishes of the complainant.

The days’ hearing concluded with evidence from Narrell Lethorn from the WA Government about Redress WA, which was established by the WA Government to make ex-gratia payments to victims of Child sexual abuse from all WA institutions.

The Commission concluded it hearings for the week at lunch time on Friday 2 May. The hearing will resume on Monday.

Update 31
30 April 2014

Update 33
29 April 2014 

Update 29
28 April 2014




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