Case study 16: Hearing room updates

The Royal Commission held a public hearing in Melbourne into the principles, practices and procedures of the Melbourne Response.  Read more 

Update 57
Tuesday 26 August 2014 – Day 7

Day 7 of the Royal Commission hearing into the Melbourne Response started with the Archbishop of Melbourne, Denis Hart, continuing to give evidence.

The Archbishop was initially questioned about the civil litigation involving the Fosters.  Archbishop Hart told the Commission his overriding instructions to the lawyers and others involved in the litigation on behalf of the Archdiocese was that they should resolve the claim as fairly and as quickly as possible.

The Archbishop also gave evidence about what the Archdiocese knew about Father Kevin O’Donnell, who was the priest who had abused Emma and Katie Foster.  He said that following his conviction and release from prison in 1996, O’Donnell was restricted and monitored by the Archdiocese until his death five months later.

Archbishop Hart also gave evidence about a number of other convicted priests, including Glennon, and about the approach of the Vatican to dealing with sexual abuse perpetrators in Australia.

Counsel Assisting asked the Archbishop about the apologies which are part of the Melbourne Response, and why they followed the same wording in different cases.  The Archbishop explained that as a result of the independence and confidentiality of the process, the Archbishop has had to give an apology with little information about the circumstances of the abuse.  The Archbishop said that he has recently put new processes in place to seek more information without breaching confidentiality, so that he can make apology letters much more personal.

Archbishop Hart was also questioned about the confessional, and the restrictions on disclosing information provided during confession.  He told the Commission that the protection of the confessional is universal within the church, and he would have no power to impact its operation in Australia.  He also said that he thought the confessional could be a place in which an offending priest could be encouraged to turn themselves in to the police.

The Archbishop agreed with Commissioner McClellan that there had been a problem within the Church about the abuse of children, and said he disagreed with anyone suggesting that the abuse of children was a moral issue rather than a crime.  He said that crimes had occurred within the Church, and that not enough action had been taken in the past here in Australia.

The Archbishop answered questions about whether selection and formation practices had changed, so that people becoming priests were now more carefully selected and trained.  He said that in the past there had not been the same careful assessment, regular instruction, and review of how trainee priests generally interact with others, as there is today.

He was also asked about celibacy and expressed the view that the current approach to preparing trainee priests better positions them for a life of celibacy.

Counsel for the Fosters asked the Archbishop about whether the Church’s response to the Foster’s request for help with crisis accommodation for their daughter Emma on her release from hospital was appropriate. The Archbishop said if he had his time again he would have granted their request.

 

The hearing concluded in Melbourne today.

Update 56
Monday 25 August 2014 – Day 6

Day 6 of the Royal Commission hearing into the Melbourne Response started in Melbourne today with evidence from Ms Susan Sharkey, a consulting psychologist, and coordinator of Carelink, the counselling and pastoral arm of the Melbourne Response.

Ms Sharkey has been in this role from 1996 to 2001 and then from 2003 to date.

Carelink is the Archdiocesan-funded service that facilitates and coordinates the provision of counselling, medical (including payment for medication) and other professional support services to victims of abuse by priests, religious and lay people who are or were under the control of the Archbishop of Melbourne.  These services are provided at no cost to the victims.  Their provision is also ongoing, with no cap on use amounts paid for such services.

Each Carelink client is assessed and interviewed so that their needs can be identified.  Carelink refers victims to psychiatrists, psychologists and other healthcare professionals.  Carelink also receives regular reports from treating therapists so that a client’s treatment can be monitored. 

Carelink funds external counselling and psychiatric care for victims. Carelink’s services are available to both primary victims and to family members and others who are affected by the abuse – commonly referred to as ‘secondary victims’.  She said that currently 45 percent of clients coming to Carelink are now secondary victims who did not suffer the original abuse and are often family members.

Ms Sharkey told the Commission Carelink can also provide assistance with other forms of support, such as financial advice, dentist services, some respite and transport assistance. Carelink can also provide $300 emergency funding each year, with further funding provided on approval.

She told the Commission that since Carelink was established 17 years ago so it had seen some 600 clients with around 200 active clients now. When asked how long, on average, each client is seen by Carelink Ms Sharkey said while it is impossible to tell, the service is still seeing some of the first two clients who came to the service in 1996. She said she had never been told to stop paying victims' bills.

Mr Francis Moore, Executive Director Administration for the Catholic Archdiocese of Melbourne then gave evidence about the financial costs associated with the Melbourne Response, including compensation payments and expenditure.

Mr Moore said compensation payments average $600,000 per year. He gave evidence about the costs associated with the scheme, including the costs of the Independent Commissioners, the Compensation Panel and Carelink.

Mr Moore said the cost of the scheme, some $17 million since it was established, reflected the desire by the Archdiocese to have the best possible people appointed to implement the process.

He also gave evidence about the diocesan finances including the ‘Catholic Development Fund’ which he agreed with Commissioner McClellan effectively operated like an internal bank for the Archdiocese.

Archbishop Denis Hart then gave evidence to the Commission about his different roles in the Archdiocese including as vicar general and auxiliary bishop, prior to becoming Archbishop in June 2001.

The Archbishop gave evidence about the difficulties in having a priest laicized, in particular the extended time it took to remove former parish priest Michael Glennon from the priesthood.  Three applications were made to laicise him before one was successful.

The Archbishop also gave detail to the Commission on the different levels of discipline which can be imposed on a priest for inappropriate behavior including being placed on administrative leave; removing faculties, which extends the administrative leave restrictions; a penal precept where, for example, a priest’s movements and contacts could be closely monitored; and finally being laicized, which can only be done by the Pope.

The Archbishop said that current living priests who are convicted of sexual abuse are referred to Rome for laicisiation.

Asked by Commissioner McClellan what the ‘moral response’ of the Church should be to victims, Archbishop Hart said the Church should always seek to respond according to justice, charity and compassion. “Sometimes we don’t do it adequately,” the Archbishop said.

“I think the real purpose of all we are doing here now and the work the Royal Commission is doing is to seek to understand the real suffering of the victims…and to try and see how we can move forward in an equitable way that will not only provide some relief for pain and suffering, provide not only limitless counselling, but a greater effort to walk with victims and show appropriate compassion,” he said.

The Archbishop provided the Commission with details of the proposed review of the Melbourne Response including considering whether the current cap of $75,000 should be increased or removed.

The review will also look at whether or not a cap is to be retained and if so at what level; how compensation should be determined; how past cases can be reviewed; and any changes to the structure, practices, policies, protocols and procedures of the Melbourne Response arising from any increase in the cap or its removal.

The Archbishop also gave evidence about the civil action taken by the Fosters and the legal approach taken by the Archdiocese to defend their claim. Archbishop Hart said he fully supported current proposals, now accepted by Church leaders, that in civil claims, the church should make available an entity to sue which is backed by assets or insurance.

 

 

Update 55
Friday 22 August 2014 – Day 5

Day five of the Royal Commission hearing into the Melbourne Response started today with evidence from Mr Jeffrey Gleeson who from July 2012 was appointed as an Independent Commissioner of the Melbourne Response.

Mr Gleeson gave evidence that his role, like that of Mr Peter O’Callaghan, is to enquire into allegations of sexual abuse, consult with the accused, the complainant, relevant witnesses and make a determination based on the evidence.

His role is also to refer the complainant to Carelink for counseling and other pastoral assistance and to the Compensation Panel where financial compensation is determined. He is also charged with making recommendations to the Archbishop about the accused.

Mr Gleeson told the Commission that before being appointed an Independent Commissioner he had acted as Counsel Assisting in a number of contested hearings.

He acknowledged the potential difficulties for victims in attending contested hearings, but gave evidence to the Commission about claimants who wanted to meet face to face with the accused, saying: "I want to eyeball that person.  I want them to know that I'm the adult now and I've got the power."

Following the conclusion of Mr Gleeson’s evidence the current Chair of the Melbourne Response’s Compensation Panel, Mr David Curtain QC, gave evidence. Mr Curtain was appointed Chair of the Panel in February 2004.

The Commission heard that the intended purpose of the Compensation Panel is to provide an alternative to legal proceedings.  The Panel is intended to operate in an informal way to provide a forum for the settlement of claims, and is not intended to be legalistic.

The Panel commenced operating in the first half of 1997.  It comprises four members: a solicitor, a community representative, a psychiatrist and the Chair.  Other than the Chair, the current members have held their appointments since 1997. 

Mr Curtain told the Commission about the process victims go through when they attend a compensation panel hearing. He said that by the time the claimant arrives at the compensation panel there is no question about the abuse having occurred.

He told the Commission claimants often bring support people to a panel hearing and that he tries to make the process as informal as possible. Mr Curtain said there are no Church lawyers present at any Compensation Panel hearing.

Mr Curtain said the Panel awarded compensation taking into account the impact of the abuse on an individual and the severity of the abuse. Mr Curtain agreed with Commissioner McClellan that what might be considered at the lower end of the abuse scale could have a devastating and lifelong impact.

Mr Curtain also gave evidence about the payment of a victim’s legal fees and deeds of release.

He said there were no confidentiality requirements placed on victims going through the compensation panel. ‘Victims are free to shout it from the roof’, he said.

He said that he tells all victims who consider having counseling, that it will be available as long as required and it will not cost them any money.

At the conclusion of Mr Curtain’s evidence the Commission adjourned for the day.

The hearing will continue on Monday.

Update 54
Thursday 21 August 2014 – Day 4

Mr Richard Leder, Partner in the legal firm, Corrs Chambers Westgarth and advisor to the Archdiocese of Melbourne, continued giving evidence today about Mr and Mrs Foster’s experiences of the Melbourne Response and their subsequent litigation against the Melbourne Archdiocese.

Mr Leder was also questioned about confidentiality obligations imposed on victims going through the Melbourne response. Mr Leder said that the letters to the Fosters were not intended to restrict a victim's ability to disclose their abuse.

He said the wording of letters to victims was later changed to clarify that there were no restrictions on them discussing the abuse they had suffered.

Mr Leder said there were a number of factors which made Emma Foster’s claim complex and unique.  He said it was unusual for someone as young as Emma to come forward so soon after the abuse and while still a child. He also said the effects on Emma of the abuse were profound and that Emma’s case was one of the earliest which the Independent Commissioner and Carelink had dealt with.

Mr Leder was asked about a number of other issues including mandatory reporting requirements and confidentiality.

While giving evidence about the abuse suffered by Emma and Katie Foster in the 1990s by Kevin O’Donnell Mr Leder said that he had been wrong to write in a 1998 letter that the abuse suffered by Emma was relatively minor.  He told the Commission if he knew then what he knows now he would not have held that view.

Mr Leder told the Commission that Catholic Church Insurance (CCI) had not initially welcomed the model of the Melbourne Response but that CCI did accept the new process.

Mr Leder again apologised to the Fosters for the language used in a legal letter to them which said that if they proceeded with civil action rather than accept an offer from the Melbourne Response their claim would be ‘strenuously’ defended. 

He said these words were part of the standard letter in 1996, but that once the Archdiocese realised they were of concern, the wording was changed.  He said that he had apologised to the Fosters yesterday and that he “certainly apologises now.”

Cardinal George Pell, who appeared by video link from Rome, was also asked about the use of the word ‘strenuously’ in the letter of offer to the Fosters. The Cardinal said that it was an unfortunate phrase and the use of that language had stopped in 2002.

Cardinal Pell was asked by Council Assisting, Gail Furness, about the cap that was part of the Melbourne Response. The Cardinal said he had not been comfortable with putting a cap on ex-gratia payments but there needed to be standards for measuring comparable levels of suffering in the scheme.

Cardinal Pell said he doesn’t agree that victims should have to sign a deed of release.

He said that the money was never his primary concern when establishing the Melbourne response rather the imperative to help victims of abuse.

When questioned about redress schemes by Commissioner McClellan Cardinal Pell said he had been dealing with sexual abuse in the Church for more than 18 years and that over that time his understanding of the suffering and long-term impact of abuse had deepened.

Cardinal Pell was also asked about the suitability of appointing Professor Bell, who had previously had a role counseling offending priests, as the inaugural head of the Melbourne Response’s pastoral and counselling arm Carelink. He said that while there had not been overwhelming support for Professor Bell, particularly from some victims and their advocates to take up the position the decision, the Archdiocese had considered him to be the best person for the job.  

Cardinal Pell also gave evidence to the Commission about its request to the Holy See for documents it held relating to all claims of abuse in Australia saying that overwhelmingly all documents held in Rome were already here in Australia.

He said that when he had previously given the assurance that the Vatican would provide all documents to the Royal Commission he had not considered this to include internal Vatican working documents. Cardinal Pell said this position was consistent with international protocols between sovereign states. Cardinal Pell said he was strongly supportive of the Royal Commission’s request for specific documents to be provided by the Vatican.

The hearing continues tomorrow.

Update 53
Wednesday 20 August 2014 – Day 3

Mr Peter O’Callaghan QC, continued giving evidence on day three of the Melbourne Response Royal Commission hearing today.

Mr O’Callaghan is the Independent Commissioner of the Melbourne Response which is the protocol used in the Archdiocese of Melbourne to assess cases of sexual abuse by its clerics and lay people.

Today’s evidence from Mr O’Callaghan focused on his role and whether the advice he provided to the Archdiocese and to victims went beyond what was expected of the Independent Commissioner.

Questions went to Mr O’Callaghan’s dealing with victims Mr Paul Hersbach, AFA and others and his advice regarding their prospects should they choose to report abuse to the police. It was noted that part of the role of the Independent Commissioner was to encourage victims to report to police which Mr O’Callaghan maintained he did.

Senior Counsel Assisting also asked questions about opportunities to review decisions made under the Melbourne Response. Mr O’Callaghan said there are no formal processes in this regard.

Mr O’Callaghan said he wanted to reject any perception that he discouraged people from going to police, that he has a complete anathema to the abuse of children and that child abusers should be brought to justice.

Mr Richard Leder, Partner in the legal firm, Corrs Chambers Westgarth since 1997 took the stand before lunch.

Mr Leder has provided legal service to the Archdiocese since 1992 and was involved in the establishment of the Melbourne Response and its continued operation.

Mr Leder was asked by Commissioner McClellan about the adequacy of the cap in the Melbourne Response. He accepted as part of the Melbourne Response, money should and had been paid even though it was agreed there was no legal liability. He said if a cap on the scheme was established using common law rights then the original $50,000 limit on payments would fall well short of what might be awarded to victims.

Mr Leder said he thought that the signing of a deed of release by victims going through the Melbourne Response could be seen as a mechanism to protect the Church but it was not a view that he held. He told the Commission he thought claims being settled through the Melbourne Response where claims that would have no legal prospects of success in Court and that, victims were in fact not giving up any options by signing a release.

Mr Leder gave extensive evidence about the Archdiocese of Melbourne’s ‘four point plan’ which was the pre-Melbourne Response which guided the way in which the Archdiocese engaged with victims of abuse.

Mr Leder agreed recent policy changes agreed to by Church leaders such as ensuring a victim had an entity to sue where brought about by the pressure applied over recent years by victims groups and the scrutiny of the Royal Commission.

He said he also thought those changes were brought about by the 20-year experience of the Church dealing with sexual abuse which had led to a much greater understanding of the issues involved.

 

Update 52
Tuesday 19 August 2014 – Day 2

The Royal Commission into Institutional Responses to Child Sexual Abuse continued its hearing today into the Melbourne Response with the Independent Commissioner, Mr Peter O’Callaghan QC, giving evidence about the way in which he determines and investigates claims of sexual abuse by people within the Archdiocese of Melbourne. 

Mr O’Callaghan gave evidence across a range of issues including reporting to police, interaction with Canon Law, procedural fairness for claimants and his independence from the Archdiocese.

He also gave evidence about the payment of legal counsel by the Archdiocese in the case of contested hearings and the process of a contested hearing.

Mr O’Callaghan told the Commission he had encouraged victims to go to the police, with some following his advice others not. He said if the police started to investigate a complaint he was looking into then he would stop his investigation, saying running two investigations at the same time would be inappropriate.

Mr O’Callaghan said that in his many years in the role of Commissioner there had only been a handful of cases in which the credibility of a complainant had come into question. He said he had found that people ‘don't fake stories about sexual abuse’ with 97 per cent of the complaints he received being substantiated.

Mr O’Callaghan said when he took up the role of Commissioner in 1996 he originally had a “Utopian” view that his work would only take six months.“(But) there has never been a diminishing in the flow of applications,” he said.

He told the commission he believed himself to be independent from the archdiocese: “So far as I’m concerned, I make the decisions without fear or favour and without any influence from other persons.”

He said he had made adverse findings against 65 priests out of 330 complaints with around 20 of these findings against priests who were alive and active at the time. Some of these priests had been investigated by the police and others were placed on administrative leave having no parish involvement.

In the afternoon session, Counsel Assisting the Commission asked questions about Peter O’Callaghan QC’s in involvement as Independent Commissioner in the investigation of complaints of abuse by O’Donnell in relation to Emma Foster and Katie Foster.

He was also questioned about a number of aspects of his role, including his relationship with Carelink, and whether providing advice to Carelink about the provision of treatment was appropriate given his role as a fact finder. His relationship with the solicitors for the Archdiocese, Corrs, and their involvement in providing advice on his dealings and correspondence with the Fosters, was also explored.

The issue of Katie Foster’s case not progressing to a finding by Mr O’Callaghan was also a focus. Mr O’Callaghan was taken to correspondence which suggested that he refused to provide a finding in circumstances where there was a possibility that such a finding could be used in civil litigation.

His findings that Anthony and Christine Foster were not primary victims of abuse was also criticised, and he was asked to provide an opinion on whether it would be appropriate for parents to also be given recognition as victims.

Mr O’Callaghan will continue giving evidence on Wednesday.

Update 51
Monday 18 August 2014 – Day 1

The Royal Commission into Institutional Responses to Child Sexual Abuse commenced its 16th public hearing today into the Melbourne Response, the protocol put in place by the Catholic Archdiocese of Melbourne in 1996 to respond to allegations from people who were sexually abused by priests, religious and lay people under the control of the Archbishop of Melbourne.

In her opening statement, Senior Counsel Assisting, said the hearing will hear evidence from three people who have sought redress from the Archdiocese since 1996: Mrs Christine Foster, Mr Paul Hersbach and another victim known as AFA.

The case study will explore the key features of the Melbourne Response which include the appointment of independent commissioners to enquire into allegations of sexual abuse; a free counselling and professional support service, known as Carelink; and a compensation panel to provide ex gratia compensation payments to victims. These elements are funded by the Archdiocese but are run independently of the Archdiocese and of each other.

In 1996, payments were capped at $50,000, $55,000 in 2000 and $75,000 in 2008. There has been no formal review of the Melbourne Response. In April this year, Archbishop Denis Hart announced he will consider the cap on ex gratia payments, how such payments are determined, and whether past cases should be reviewed.

Evidence will also be heard from Mr Richard Leder of Corrs Chambers Westgarth (the Archdiocese’s solicitors), Cardinal George Pell and Archbishop Denis Hart.

The Royal Commission will hear evidence relating to the role of the Independent Commissioner and the appointments of Mr Peter O’Callaghan QC since 1996 and Mr Jeffery Gleeson QC since 2012.

The Commission will also hear evidence from Ms Susan Sharkey, Coordinator of Carelink, the Archdiocese-funded service that facilitates and coordinates the provision of counselling and medical and other professional support services to victims of abuse, including secondary victims, as part of the Melbourne Response.

Senior Counsel Assisting outlined the role, processes and make-up of the Compensation Panel. Evidence will be heard from the current Chair, Mr David Curtain QC.

The first witness to appear in the hearing was Mrs Christine Foster who gave evidence about her experience with the Melbourne Response protocol and subsequent legal engagement with the Melbourne Archdiocese.

Mrs Foster’s daughters, Emma born in 1981 and Katie born in 1983, were abused by their parish priest Fr Kevin O’Donnell when they were students at Sacred Heart Primary School in Oakleigh in the 1990s.

O’Donnell was charged with 49 child sex offences in 1995 and was sentenced to just over three years in prison.

Mrs Foster and her husband Anthony, gave evidence about the family’s protracted experience of the Melbourne Response and their ultimate decision to take legal action.

They gave evidence about the tragic impact of the abuse on their family. In January 2008 Emma Foster took her own life. Katie took to binge drinking to escape the memories of her abuse and will require 24 hour care after being hit by a car in 1999.

After being offered $50,000 through the Melbourne Response, the Fosters ultimately took legal action and received $750,000 in a settlement.

Mr Paul Hersbach then gave evidence that he was sexually abused by Fr Victor Rubeo from 1985 to 1988. He was aged eight to 11 years at the time.

Paul Hersbach’s father and uncle had also been abused by Rubeo, who died on the day he was to appear in Court for his committal. Mr Hersbach described his experience of the Melbourne Response process and the impact of the abuse on his life. In November 2006 he was offered compensation of $17,500. A year later he signed the deed of release and received compensation.

AFA was sexually abused by Michael Glennon when he was 15 years old in his local parish, St Gabriel’s. AFA described his experience with the Melbourne Response, including his interviews with Mr O’Callaghan QC, Ms Sue Sharkey and Mr Curtain QC. He said he found the experiences daunting and confronting.  Mr O’Callaghan was satisfied that AFA had been abused and that he could be referred to Carelink and the Compensation Panel.

AFA was offered $50,000 in compensation, which he considered inadequate, but eventually accepted. Glennon was charged and was to face trial in relation to his abuse of AFA in June 2014, but he died while still in prison on other child sexual abuse offences.

The hearing will continue tomorrow.

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