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Truth Justice and Healing Council | 8 August 2014

Submissions in Response to Submissions of Senior Counsel Assisting – Case Study 11 from

the Truth Justice and Healing Council

Royal Commission into Institutional Responses to Child Sexual Abuse

Case Study No. 11 Public Inquiry into the response of the Christian Brothers and relevant Western Australian authorities to allegations of child sexual abuse at four residential institutions in Western Australia

8 August 2014

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Submission to Royal Commission into Institutional Responses to Child Sexual Abuse Case Study No. 11 | Public Inquiry into the response of the Christian Brothers and relevant Western Australian authorities to allegations of child sexual abuse at four residential institutions in Western Australia

Truth Justice and Healing Council | 8 August 2014 Page 1

Case Study 11 – Congregation of Christian Brothers Submissions in Response

These submissions are made on behalf of the Congregation of Christian Brothers (Christian 1Brothers) and the Truth Justice and Healing Council (the Council) (together, the Church

parties).

The Church parties were granted leave to appear at Case Study 11. 2

The submissions respond to the Submissions of Senior Counsel Assisting in Case Study 11, 3dated 20 June 2014 (Submissions).

Jane Needham SC Bede Kelleher 13th Floor St James’ Hall 13th Floor St James’ Hall

8 August 2014

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1 Introduction

During the hearing of Case Study 11, both Brother McDonald and Brother Shanahan gave 1evidence accepting, with regret, the experiences of abuse suffered by the 11 men who gave evidence at the hearing and the Christian Brothers’ management of the subsequent 1993 class action brought in connection with that abuse1.

Br Julian McDonald, the Deputy Provincial of the Christian Brothers, Oceania Province at the time 2of the public hearing, expressed his sorrow and regret at the experiences of abuse suffered by the 11 men who gave evidence at the hearing. In his evidence Br McDonald stated:

One of my regrets is that not every Christian Brother in Oceania was here to hear their

testimony. These men, and others beside them – a whole lot of others – were transported

to Australia, presumably with hope in their hearts and an expectation that they’d be given

the right to education. They wouldn’t have been able to express it in those terms, but that

right was denied them. They were turned into child labourers to build a monument to

human folly and blind ambition. That’s a tragedy; it’s a denial of their rights for education.

It turned out to be a denial of their right to nurture, their right to be treated with respect – all

of that. They were denied that opportunity and the shame for that rests with me as a

leader in the Christian Brothers.”2

The voices of the men who gave evidence have been heard by the Christian Brothers and the 3community. The evidence was brave and powerful.

This case study demonstrated the significant differences in the way in which childcare is 4undertaken today, in contrast to the arrangements that were in place at the four Institutions in Western Australia prior to the 1970s. In relation to systemic issues, Case study 11 has a mainly historical relevance in that the period under review ended some decades ago and the four Institutions themselves no longer exist in the form under consideration by the Commission.3 Over the years, valuable lessons have been learned in relation to educational principles, welfare of children in out-of-home care, and in the selection and preparation of applicants to the Order of the Christian Brothers.

The Church parties welcome the investigations of the Royal Commission in Case Study 11 and 5will examine the eventual findings carefully, with a view to implementing appropriate recommendations arising out of those findings.

The Church parties propose to accept a number of the findings proposed by Counsel Assisting 6with some modifications. Some of those findings are critical of the Christian Brothers and the response by the Brothers to knowledge and allegations of abuse. The Church parties also submit that some aspects of the response of the Christian Brothers warrant positive findings, which could serve as examples of how institutions can work more effectively to respond to victims.

1 Shanahan TWA2182:24 – 46; McDonald TWA2294:9 – 2295:26 2 McDonald TWA2294:10-32 3 Although Bindoon still operates as a residential boarding school

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The Christian Brothers also refer to the evidence of Brother McDonald in which he said: 7

“I will say, here and now, that any settlement that is regarded by the person settled with as

unjust will be revisited … and we invite them to come forward … they can contact our

Professional Standards Office in Victoria.”4

2 Part A – Introduction

The Church parties generally accept paragraphs [1] to [5] of the Submissions except as set out in 8this section.

In relation to paragraph [1], it is noted that the defined term "Institutions" is not used consistently 9through the Submissions. Where some clarification is needed this will be noted below. This inconsistency is a matter of substance which impacts on the scope of the proposed findings.

In relation to paragraph [5], it should be noted that Br Julian McDonald is a former Provincial, 10rather than the current Provincial, of the Christian Brothers. He was Deputy Provincial at the time of the hearing but has now taken up the role as a member of the congregational leadership team of the Christian Brothers, having the role of oversight of the affairs of the whole Congregation of the Christian Brothers.5

3 Part B – History and Structure of the Christian Brothers

The Church parties accept the broad recitation of material placed before the Commission at 11paragraphs [6] to [38] of the Submissions except as set out in this section.

In paragraph [11], the date “1957” should be “1967”.6 12

It should be noted that the evidence recited from Br Shanahan in paragraph [25], relating to the 13way in which complaints were dealt with in the past, was expressly stated by Br Shanahan to be “against contemporary wisdom”.7

4 Part C – Child Migration Scheme

The Church parties accept the facts as set out in the Submissions in paragraphs [39] to [46] and 14have no additional comments.

5 Part D – State Oversight

The Church parties accept the facts as set out in the Submissions in paragraphs [47] to [52] and 15have only the following additional comments.

4 McDonald TWA967:33-45 5 McDonald TWA2216 :15-16 6 Ex 11-29 pars [30] to [32] 7 Ex 11-27 par [34]

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In paragraph [51], Counsel Assisting asserts that the inspections by State Government of the four 16Institutions "were carried out at a very high level and did not result in a comprehensive progress report or address the welfare of children in the Institutions". That is not quite what Ms White, Acting-Director General of the Department for Child Protection and Family Support, said in her evidence.8 The reference to "not address[ing] the welfare of the children" was a reference to the children's individual needs not being commented upon in the Inspection Reports, or addressed in the way that the current approach focuses on an "individualised approach and well-being concerns of children today".9

The Inspection Reports do, in fact, include matters which go to the welfare (in a more general 17sense than that used by Ms White) of the children. Some of those Inspection Reports were tendered by Counsel Assisting and they in fact demonstrate that:

(a) the inspectors talked to the children, and presented an assessment of their general wellbeing

(b) the inspectors were concerned with the general conditions within an Institution, for example, its cleanliness and comfort, the level of educational achievement of the boys and the recreational facilities available, and

(c) there was an assessment of the physical health of the boys, including how they looked, whether they were being adequately fed, whether they were clean, and how the infirmary operated.

A number of the inspections occurred unannounced.10 18

The Inspection Reports demonstrate that the four Institutions varied in their nature and in their 19care for the children, between each other and over time. While Bindoon was undoubtedly harsh, the general living conditions at Castledare, Clontarf and Tardun were not so and this is borne out in the Inspection Reports.11 Further, as a result of the Inspection Report process, the Institutions were improved; see for example, the Inspection Report dated 30 October 194712 which painted a sad picture of living conditions at Bindoon. However, the same officer reported that there had been "visible signs of improvement" by his next visit which occurred the following month in November 194713 and described the condition and diet of the boys with some detail and apparent approbation. By 1955 the Inspection Report14 noted appropriate living accommodation, "adequate and wholesome" food, and the presence of four Sisters who assisted with, inter alia, "particular care of the little fellows".

The Christian Brothers accept that some of the conditions at each of the four Western Australian 20Institutions were unacceptable as residential care facilities for children. The Christian Brothers do not take issue with the fact that the isolation of Bindoon and Tardun, along with the physical

8 Ex 11-18 at [43] 9 White TWA:1770:14-37 10 See Ex 11-01 tab 6 at WA.0009.3002.0010; tab 16 at WA.0009.0002.0021; tab 18 at WA.0009.001.0594; tab 23 at

WA.0009.001.0567 11 EX 11-01 Tab 12 at WA.0009.001.0058; Ex 11-01 Tab 16 at WA.0009.002.0021; Ex 11-01 Tab 18 at WA.0009.001.0594; Ex 11-

01 Tab 19 at WA.0009.001.0598; Ex 11-01 Tab 20 at WA.0009.002.0001; Ex 11-01 Tab 23 at WA.0009.001.0567 12 Ex 11-1 tab 4 at WA.0009.001.0176 13 EX 11-01 tab 6 at WA.0009.002.0010 14 EX 11-01 tab 19 at WA.0009.001.0479

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aspects of the living conditions at the four Western Australian Institutions, is likely to have had a bearing on the impact of the abuse which occurred at those Institutions.

6 Part E – The Four Institutions

Part E is contained in paragraphs [53] to [102]. The Church parties accept that the summaries in 21those paragraphs of the evidence of the eleven men who bore witness to their experiences are appropriate.

Many hundreds of boys went through the Institutions and there was evidence before the Royal 22Commission, in addition to the evidence of the 11 victims, as to the varied experiences which boys had there. For example, the evidence of Maria Harries describes the experiences of the men with whom she came in contact through her involvement with CBERS. She described the experiences as "contradictory" and referred to a "diversity" of views,15 and later noted that "a number of the men had done very well".16 Brother Shanahan spoke of the "significant" number of men who had had positive experiences at the Institutions, who:

"… expressed gratitude for their time in the [I]nstitutions, for the way they were treated,

who continue to cherish their relationships and connections with brothers they had known

as children. I think our sense was that, well, we need to, in some way, take seriously or

honour the stories of all of these former residents. So those who alleged abuse have to be

taken seriously and those who say that, "I was well looked after and I was happy" have to

be taken seriously also".17

ISERV also received a number of submissions from ex-residents of the four Western Australian 23Institutions, who had not been abused and who described their time at the Institutions in a positive way. In its Final Report, ISERV noted that:

“A large group of ex-residents making submissions expressed concern that the positive

contributions of the Christian Brothers were not being recognised and/or reported within

the media, and that as a consequence the Christian Brothers as a congregation were

being damaged. Many expressed their gratitude for what the Christian Brothers had done

to provide them with a start in life. Others, whilst aggrieved by the actions of some

Christian Brothers, acknowledged that some or the majority of the Congregation were men

to be admired.”18

The Visitation Reports recorded examples of boys receiving what appeared to be a decent 24education19 (although, admittedly, this was an alternative to "a farming life"). It is not completely accurate to say, as in paragraph [102] of the Submissions, that the focus of visitation reports "was not on the welfare of the children".

15 Harries TWA1748:18-20 16 Harries TWA1756:9-24 17 Shanahan TWA2088:13-18; see also TWA:2207:37-2209:4 18 Ex11-07 at CTJH.056.18004.0114 19 See, for example, Ex11-01 tab 11 at CTJH.056.11102.0073 (28 April 1948); Ex 11-01 Tab 22 at CTJH.056.15010.0117 (18 July

1957)

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As the Christian Brothers were an order established to educate poor boys, practical or vocational 25training had always been part of the Christian Brothers’ tradition.20 It was in this tradition that Tardun and Bindoon had been set up as farming and trade schools. However, the Christian Brothers accept that, in reality, at those Institutions, many boys did not receive the academic education that they were entitled to expect.21

These other aspects of the evidence are not included in this submission in reply to downplay or to 26minimise the suffering of the men who gave evidence at the public hearing. While the focus of Case Study 11 was on the evidence of the eleven men, that focus is not the whole story. The diversity of experiences should be recognised in any findings to be made.

There are some further, minor issues in this section of the Submissions. There is a submission in 27paragraph [76] that boys were "often" sent to Bindoon before the age of ten. The evidence of Br Shanahan was that "some children" had been sent there before they had turned ten.22 In paragraph [78], the figure of ten brothers being on staff at Bindoon in 1947-48 should be "eleven" brothers.23

6.2 Available findings 1-4

Senior Counsel Assisting lists four proposed findings under the heading "Available Findings" 28(Proposed Findings). Those proposed findings, and the response of the Church parties to them, are as follows.

Proposed Finding Response

1. The boys living at the institutions had little contact with those outside of the homes because many were child migrants or orphans without families to visit them and particularly for the boys living at Tardun and Bindoon, there was also geographic isolation.

Accepted

2. The limited role played by the State authorities at the time contributed to the boys having little access to adults outside the institutions to whom they may have disclosed their conditions including the abuse.

Accepted

3. The physical conditions at the institutions permitted no privacy and required the boys to be naked in front of the brothers and each other. The dormitory style accommodation with brothers sleeping in rooms off the dormitory or boys and brothers sleeping together on the verandah created a physical environment where the boys had no privacy from the brothers. The practice of having boys make up brothers’

Accepted in context of the submissions in [32] below.

20 Shanahan TWA2135: 33-38 21 Shanahan TWA2135:26; McDonald TWA2294: 10-32 22 Shanahan TWA2136:3 23 Ex 11-01 tab 7 at CTJH.056.11102.0063

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rooms enabled brothers to be alone with boys in their rooms.

4. The Christian Brothers failed to provide all boys at the institutions with an opportunity to obtain an education.

Accepted if Proposed Finding is reworded as follows: “Not all boys at the Institutions were provided with an opportunity to obtain an academic education.”

The Proposed Findings numbered 1-4 illustrate the difficulty set out in paragraph 9 above. It is 29assumed that Proposed Findings 1-4 each refer to the four Western Australian Institutions the subject of the Case Study and given that the evidence of the eleven witnesses put before the Royal Commission concerned only those Institutions.

If this assumption is not correct, then the Church parties would seek to consider making further 30submissions as to the breadth of the Proposed Findings.

If the assumption the Church parties have made is correct, the Church parties accept that 31Proposed Findings 1-3 can be made on the evidence.

However, they wish to note in relation to Proposed Finding 3, that in the Inspection Reports 32prepared by the officers of the Child Welfare Department, no issue was taken with lack of privacy for the boys. Whilst the physical conditions, in this respect, may have been consistent with the standards of the time and accordingly no steps were taken during the period to provide greater privacy, the Church parties accept that the lack of privacy may have contributed to some of the conduct referred to in the evidence of the eleven men. The practice of the boys making up the brothers rooms was cautioned against at the time.24

As to Proposed Finding 4, the evidence would be better reflected if the wording of this Proposed 33Finding were:

"Not all boys at the Institutions were provided with an opportunity to obtain an academic education".

As Proposed Finding 4 is currently worded, it could be read as if no boy who attended one of the 34four Institutions received an education, when clearly many of them did. The evidence reveals that the failure to provide an education was more of an issue at Bindoon and to a lesser extent, Tardun, being the agricultural establishments, and that at Clontarf and Castledare the education facilities were reasonable for the time and in the context of that which was provided to children who were State wards or child migrants.

7 Part F – The Experiences of the Boys at the Institutions

The Church parties accept that the experiences set out in paragraphs [103] to [152] are accurate 35summaries of the evidence given by the eleven men who gave evidence. It is noted that the

24 Ex 11-1 Tab 11, at CTJH.056.11102.0073

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heading "the boys" should be read as referring to those eleven men, and to the experiences reported by them of other boys at the Institutions. It should not be read as referring to each boy who attended an Institution, for the reasons given at 22 and following above.

In paragraph [104] of the Submissions, Counsel Assisting sets out the number of brothers who 36were named as perpetrators of sexual abuse. The Church parties, while not resiling from the fact that there were Brothers who committed abuse at the Institutions, say that the figures in [104] should read as follows:

(a) There were three Brothers (not 8) named in relation to Castledare; Brothers Murray, Murphy and Dick.25

(b) There were two Brothers (not 6) named in relation to Clontarf; Brothers Murphy and Angus.26

(c) There was one Brothers (not 3) named in relation to Tardun; Brothers Simon and Synan are referred to in the evidence. 27 However as there was no Br Simon on staff at Tardun, 28 it is likely that both references are to Brother Synan.

(d) The Submissions name the correct number of Brothers at Bindoon.

8 Part G – Knowledge of abuse by the Christian Brothers

The evidence demonstrated that in the 50 years prior to 1969, some allegations of abuse from 37various parts of Australia were reported to Provincial Leaders. The records demonstrate that the Province Leaders in some cases took various actions according to the norms of Canon Law and the wisdom of the day, including putting the allegation to the relevant Brother, conducting investigations, transferring the relevant Brother to a less high risk community, issuing warnings and co-operating with the prosecution of the Brother. Some of those actions were certainly very different to the actions rightfully expected today. However, some of the allegations were made nearly a century ago and the institutional responses must be regarded within the context of cultural attitudes and past knowledge of the nature of sexual abuse which differ significantly from that of modern times. That being said, the Church parties do not condone the behaviour which occurred and accept that the response in some cases was not appropriate.

For the reasons set out below, on the documentary evidence referred to by Counsel Assisting in 38the Submissions, the Head Office in Dublin, the Provincials and/or members of the Provincial Councils in Australia (the Christian Brothers’ Executive) were aware of the following 9 allegations of sexual abuse by Brothers at the 4 Institutions in Western Australia in the period from 1919 to 1959, being a period spanning 40 years:

(a) the allegations regarding Br Carmody at Clontarf in 1919, which led to him being convicted and charged

25 Ex 11-5 Cosgrove [8] ; Ex 11-3 McGregor [17] ; Ex 11-12 VI [16] – [33] 26 Ex 11-3 McGregor [17] – [21], Ex 11-5 Cosgrove and Ex 11-4 Wells [20] 27 Ex 11-7 VG [35] – [37] and Ex 11-10 Ellul [27] – [32] 28 Refer to the Staff Register in The Scheme: CTJH.056.18005.0001

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(b) an allegation regarding Br Murphy at Tardun in 1943, in relation to which Br Murphy was exonerated following an extensive investigation

(c) an allegation regarding Br Foy at Castledare in 1944, which was denied and led to his being transferred to Leura, which was not an educational institution

(d) an allegation against Br Beedon at Clontarf in 1946, which led to his being transferred to a Christian Brothers day school (rather than a remote residential facility) at Wakefield St, Adelaide where there would have been less opportunity to offend (although it is conceded the transfer was not in the best interests of the Wakefield Street boys)

(e) an allegation against Br Boulter at Bindoon in 1950, which led to the boy being transferred

(f) an allegation against Br Wise in 1954 which led to him being transferred to a community in Victoria where he would not be in contact with children

(g) an allegation against Br McLaughlin in 1959 of kissing and embracing a boy, and which led to him being given a warning

(h) an allegation against Br Synan in 1959 of touching, for which he was given a warning, and

(i) allegations against Br Angus in 1957 and 1959, which were put to him and denied and in respect of which no further action appears to have been taken.

Whilst these incidents indicate that there was a level of knowledge of sexual abuse at the four 39Institutions at Provincial Council level, it is important to note that there was no knowledge at the Provincial Council level of the particular abuse that was presented by the 11 victims to the Royal Commission - certainly not the intensity and severity of the abuse they described in the public hearings.

While Br Shanahan was shown a table in the witness box29 (Knowledge Table) (and not the 40supporting documents for that table) and agreed that there was knowledge at Provincial Council level of misconduct, not all of the references in the table reflect the underlying documents and no inference of knowledge of the Christian Brothers Executive of allegations of sexual abuse by Brothers at the Institutions should be drawn from some of the references in the table. For instance:

(a) Par [158] refers to Br Sebastian as being "not the correct type to be in charge of a Government subsidised institution …". At its highest one could not readily infer an allegation of sexual assault from this comment and it could equally be consistent with him having no management skills in managing his own and others’ emotional difficulties, an inability to control the boys with behavioural difficulties of the type sent to Bindoon.30

(b) Par [159]; Br Traynor was never at Tardun; see the list of Brothers at various institutions in The Scheme31 and the visitation reports for 1936-1938.32

29 Ex 11-28 at EXH.011.028.0001 30 Ex 11-01 at CTJH.056.11102.0012 31 CTJH.056.18005.0001 32 CTJH.056.15024.0030; CTJH.056.15024.0038; CTJH.056.15024.0043; CTJH.056.15024.0052; CTJH.056.15024.0068

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Upon closer examination of the documentation supporting the Submissions, the Church parties 41have noted some anomalies, which are set out in a schedule (Annexure A).

9 Part H - Submissions of the Christian Brothers to Previous Inquiries Regarding Knowledge of Abuse

This section of the Submissions deals with the submissions made on behalf of the Christian 42Brothers to other inquiries. Brother McDonald was involved in the submissions to one of those inquiries, the Victorian Parliament Family and Community Development Committee’s Inquiry (Victorian Inquiry), on behalf of the Christian Brothers (referred to at par [204]). The Victorian Inquiry submissions stated at [21] that:

“There is evidence of [reports of] some offending before [the early 1990s]. However, the

archives reveal that such reports were isolated and few in number.”

Brother McDonald gave evidence that this statement was made in the context of Victoria only, 43and that the limit of the Victorian Inquiry was about brothers who had offended in Victoria.33

The Submissions at [204] to [206] are problematic in so far as they suggest that Brother 44McDonald, having sat through the evidence of the eleven men, was conceding that the submission to the Victorian Inquiry was wrong. Brother McDonald properly conceded, having sat through the evidence (of the eleven men) and through the recitation of the propositions set out in the Knowledge Table, that the reports of sexual abuse were not “isolated and few in number”.34

In relation to the knowledge of the recent Christian Brothers leadership of sexual abuse outside 45the context of the Victorian inquiry, in 1995, Carroll and O’Dea (COD) and Counsel, Ms Carolyn Rimmer, (Rimmer) each provided the Christian Brothers with legal advice (respectively, the COD

Advice35 and the Rimmer Advice36) in relation to the Class Action Proceedings based on their review of contemporaneous documents made at the relevant time. Both advices focus on allegations of abuse in the Western Australian Institutions. In relation to that advice, the Christian Brothers were informed:

(a) all available material had been accessed

(b) the New South Wales class action proceedings were eminently defendable because, inter alia, “any complaint of sexual abuse was acted upon and investigated”, and

(c) the “system in place appears to have worked in most instances” and included the visitation system, and disciplinary actions against Brothers, culminating in dismissal.37

Brother McDonald was involved in giving instructions in relation to the Class Action Proceedings, 46and his level of knowledge as to the Western Australian Institutions was limited to the information and advice given to him in the Rimmer Advice and the COD Advice. There should be no criticism levelled at Brother McDonald for relying upon those advices. However, as a result of

33 McDonald TWA2258: 25-26 34 McDonald TWA2257:12-35 35 Ex 11-24 Tab F at CTJH.056.11063.0167_R 36 Ex 11-01 Tab 40 at CTJH.056.11094.0175 37 Ex 11-24 Tab F at CTJH.056.11063.0167_R

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hearing the evidence of the eleven men, the Christian Brothers accept that those advices did not reflect the actual abuse that was occurring at the four Institutions as evidenced by the eleven witnesses during the Case Study.

The evidence given by the eleven men during the hearing was in relation to events that occurred 47in the four Western Australian Institutions, the incidence and severity of which, as noted above, was not reported to the Christian Brothers’ Executive at the time. Contemporaneous records show that the Christian Brothers’ Executive at the time were aware of 9 reports of allegations of sexual abuse at the 4 Institutions over a 40 year period. At the time of the Victorian Inquiry, Brother McDonald’s knowledge of the reports of allegations of sexual abuse at the four Western Australian Institutions was based on the COD Advice and the Rimmer Advice referred to in paragraph 44. Those advices were based on a review of documents, principally from St Mary’s Province, up to 1960. It is clear from the context of the submission to the Victorian Inquiry, that the reference to the incidents of reports was isolated to Brothers who had offended in Victoria and was intended to span a period into the 1990s.

It is to the credit of both Brothers McDonald and Shanahan that when confronted with the 48testimony of the eleven men, neither sought to justify their position by reference to the legal advice they had received in respect of the Western Australian archival material referred to in paragraph 45 above. In this regard, the Commission should note the evidence given by Brother McDonald as follows:

“But I want to say that I, frankly – when I became province leader in 1990, I had no idea of

the extent of what had occurred by way of abuse in the decades before I joined the

Congregation even. But I have spent 25 years of my life trying to deal with the

consequences of abusive behavior by Christian Brothers. I will never deny it, I will never

defend it, I will never condone it.”38

The concession from Brother McDonald as to his evidence in the Victorian Inquiry should not give 49rise to an inference that he gave wrong or misleading evidence. That proposition was not put to him in any event.

9.2 Available Findings 5-6

Proposed Findings 5 and 6, and the response of the Church parties to them, are as follows. 50


5. In each of the decades from 1919 to the 1960’s the relevant Provincial Council knew of allegations of sexual abuse by some brothers in Christian Brothers’ institutions around Australia.

Accepted

a. In each decade from the 1930s to 1950s, allegations of child sexual abuse were raised against brothers who had been the subject of earlier

Accepted

38 McDonald TWA2258:35-42

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allegations.

b. By the 1950s, communication between one or more of the then Superior General and the then Provincial reveal i. an understanding that sexual

abuse can have ongoing impacts on children

ii. reference to sexual abuse of children as moral lapses and weaknesses

iii. that those lapses had a tendency to re-assert themselves

iv. an understanding of the danger that an abused may become an abuser

v. an understanding that the administration of an institution may be at fault when a brother was an abuser

vi. that at least one brother was transferred to another Christian Brothers institution where he did have contact with children after being the subject of an allegation in relation to children, notwithstanding in some cases some brothers were transferred to institutions where they would not have contact with children

vii. that there was a lack of privacy for the boys

Proposed Findings 5(b)(i) to (vi) are accepted if Proposed Finding 5(b)(ii) is reworded as follows: “that sexual abuse of children was viewed as and referred to as a “moral lapse” or “weakness”” Proposed Finding 5(b)(vii) not accepted in the terms proposed for the reason set out in [55] below.

6. The leadership of the Christian Brothers during the period 1947 to 1968 failed to manage each of the institutions so as to prevent the sexual abuse of children resident in the institutions.

Accepted in context of the submissions in [58] – [62] below.

Proposed Findings 5 and 6 deal with the knowledge of the Christian Brothers from a period prior 51to the scope of the Case Study up to 1968. It should be noted that neither Brother McDonald nor Brother Shanahan were in leadership positions during this time.

It is clear from the statements of the eleven men who gave evidence at this hearing that none of 52their allegations had, at least prior to the 1993 litigation, come to the direct knowledge of the then-Christian Brothers leadership teams in New South Wales, Victoria or Western Australia.

Proposed Finding 5

The Church parties assume that Proposed Finding 5 is not intended to be limited to the 53Institutions in Western Australia which are the subject of the Case Study. It is noted that the evidence to the Commission by way of oral evidence was only in relation to the four Institutions.

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The meaning of Proposed Finding 5(b)(ii) is unclear to the Church parties. If it is meant that the 54sexual abuse of children was viewed as and referred to as a “moral lapse” or “weakness”, then the Church parties accept a finding in those terms. However, if it is intended to mean that references to “moral lapses” and “weaknesses” are necessarily references to sexual abuse of children, then the Church parties do not accept such a finding. Brother Shanahan observed that the reference to “difficulties of a moral nature” was a generic term which could refer to a number of things, including homosexual or heterosexual involvements.39 The same can be said for “moral lapses” or “weaknesses”.

In respect of Proposed Finding 5(b)(vii), the Church parties have been unable to find a reference 55in the communications between the then Superior General and the then Provincial in which they refer to there being a lack of privacy for the boys. They accept as a matter of fact that there was a lack of privacy.

The Church parties otherwise accept Proposed Finding 5. 56

Proposed Finding 6

The Church parties accept that as a statement of fact, based on the accounts of the eleven men, 57sexual abuse of an horrific and unacceptable level, occurred at the four Institutions. It therefore could be concluded that this means that the leadership of the Christian Brothers during the period 1947 to 1968 failed to manage each of the Institutions so as to prevent sexual abuse of some of the boys in their care.

However, Proposed Finding 6 should be put in the context that the Christian Brothers Executive 58at the time knew of 9 allegations of sexual abuse by Brothers at the four Institutions over a 40 year period and had taken steps in response to each allegation. The Christian Brothers accept that the responses were different to the actions rightfully expected today, and that not all of the responses were appropriate. Further, the extent of the Christian Brothers Executive’s knowledge of the nature of those allegations was limited to the nature of the abuse as it was described in the relevant correspondence relied upon by Counsel Assisting in the Submissions.

The general allegations made by the eleven men in this Case Study were not known to the 59Christian Brothers Executive until the early 1990s, and the specific allegations were not known until the evidence was served in this Case Study. Knowledge of the general or specific allegations raised by the eleven men cannot be imputed to the Christian Brothers Executive at the relevant time.

Proposed Finding 6 should also be put into context of what was legally and socially acceptable for 60physical, disciplinary and living conditions for residential child care institutions as against the standards in place during the period from 1947 to 1968.

The Church parties note that the entirety of the evidence given in Case Studies before the 61Commission has demonstrated the fact that sexual abuse cannot in fact be completely prevented by any institution. Criminal conduct may occur in the best-run institutions even absent the exigencies of distance, lack of training, and isolation as occurred in the Institutions. In the intervening decades, the knowledge and understanding of this crime has been developed so that

39 Shanahan TWA2114:1-30

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tools can be deployed to significantly minimise the likelihood of its occurrence. The Church parties anticipate and welcome the fact that the Royal Commission may provide additional insights and guidance on how child-safe institutions may be created.

10 General comment on paragraphs [207] onwards

The Church parties note that there are no "Available Findings" proposed by Counsel Assisting in 62relation to the material before the Commission in paragraphs [207] and following. The Church parties assume, therefore, that no findings will be made by the Royal Commission in its report. If this is incorrect, then the Church parties further assume that draft adverse findings would be provided to them for the purpose of comment prior to any such findings being made. The Church parties would, if the above assumptions were incorrect, provide detailed submissions along the lines of the brief submissions outlined below.

11 Part I - Compensation paid by the Christian Brothers

The Christian Brothers note that this section deals mainly with monetary compensation. 63Significant sums were expended by the Christian Brothers in various ways (some of which are dealt with later in the Submissions) by way of provision of counselling and other services through ISERV and CBERS, as well as more indirect provision of assistance. The data held by the Christian Brothers as to monetary compensation it has paid, and other services and support it has provided, is not limited to claims of sexual abuse. The Christian Brothers’ response to allegations of all types of abuse in the four Western Australia Institutions includes:

(a) 1993: establishment of ISERV to assist former residents of Christian Brothers’ Western Australian Institutions and advise the Christian Brothers as to how it could provide support. This included the development and management of an independent Helpline.40

(b) 1994: funding of CBERS, a service provider dedicated to responding to the needs of Christian Brothers ex-residents41. The Christian Brothers provided approximately $5,125,868 by way of funding for the provision of services by CBERS until it closed in 2005.42

(c) 1996: $5 million, in connection with settlement of the Class Action Proceedings. The $5 million settlement was broken down as follows:

(i) $3.5 million paid into an independently administered trust to provide cash payments and the funding for services including counselling for plaintiffs, and

(ii) $1.5 million for the payment of Slater & Gordon’s costs.

(d) Payment of approximately $3,341,000 to ex-residents of the four Institutions in response to claims made since 1 January 1980 (excluding those claims made in the Class Action Proceedings).

40 Ex 11-29 McDonald [82] – [86] 41 Ex 11-29 McDonald [87] – [89] 42 Ex 11-29 McDonald [136] – [137]

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(e) 2006 – current: funding assistance for Tuart Place, a drop in centre in Western Australia for all “Forgotten Australians” through contributions to Lauries’ Fund.43

In his statement to the Commission, Brother McDonald indicated his willingness to “carefully 64consider any injustice brought to the Christian Brothers’ attention in respect of previous dispute processes”44. This was reaffirmed during Brother McDonald’s examination where he said that he would be willing to revisit the compensatory payments already made45 to anybody who had a complaint, not just those who had been through the Towards Healing process, but also including those victims who had been through the Class Action Proceedings46. The Christian Brothers have already commenced this process and have acknowledged a commitment to reconsider the claims of four of the 11 men who gave evidence to the Royal Commission. In his statement to the Commission, Brother McDonald stated:

(a) in relation to James McGregor, “from the Christian Brothers’ perspective, the question of reparation for Mr McGregor is not closed”47

(b) in relation to Raphael Ellul, that the Christian Brothers were prepared and willing to reconsider the amounts paid to him and to issue Mr Ellul a written apology for the abuse that he suffered.48 During his examination Brother McDonald confirmed that, in respect of Mr Ellul, this process was “…past the consideration stage in that I will say, here and now, that any settlement that is regarded by the person settled with as unjust will be revisited”49

(c) in relation to William Malone, that it is vital that his claim, including monetary payment, be re-considered50, and

(d) in relation to John Wells, that the Christian Brothers would consider the amounts paid to him51.

Amounts contributed by the Christian Brothers for other initiatives such as the Helpline and 65ISERV and Tuart Place were not quantified and were not put into evidence. Other direct contributions to ex-resident groups or ex-residents in the early 1990s have also not been quantified.

12 Part K - Actions of the Christian Brothers

The Church parties submit that, since the 1990s, the Christian Brothers have made a significant 66effort to respond to allegations of abuse in appropriate and creative ways. The actions were thought leading initiatives taken in response to the allegations of abuse, from an early time, when the Congregation members were “genuinely shocked and somewhat disorientated by the nature of the claims that were being made” and “denial and shock were operative”.52 In responding, the

43 Ex 11-16 Harries [56] – [58] 44 Ex 11-29 McDonald [215], [223] and [229] 45 Par [263] of Submissions; TWA2254-2555 46 Par [263] of Submissions; McDonald TWA2254-2555 47 Ex 11-29 McDonald [197] 48 Ex 11-29 McDonald [214] – [215]. 49 McDonald TWA2254: 35-37 50 Ex 11-29 McDonald [223] 51 Ex 11-29 McDonald [229] 52 Ex 11-27 Shanahan [209]

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Christian Brothers tried to do what they thought was the best, most appropriate thing, accepting that not every response was the right one.53

In 1993, the Christian Brothers published an apology, unreservedly apologising to those 67individuals who were the victims of abuse at the four Institutions.54 The apology was “a first step” which was followed up by the provision of counselling through Helpline and the commissioning of ISERV – whose sole purpose was to listen to the men who had attended the Institutions to learn what support they needed and to come up with recommendations on how the Christian Brothers could provide that support. CBERS was then set up to independently provide that support. Reconciliation was a large theme in the ISERV report.55 Maria Harries described the importance of reconciliation to the group:

“So there was reconciliation about the past for the men; there was reconciliation with the

brothers, if that's what they wanted to do; there was reconciliation with their families, if they

wanted to do that. So there was a whole sense of finding some peace.””56

Those efforts were not interrupted by the civil litigation; it is important to note that the 68establishment of CBERS continued through the litigation process and survived even though there was significant hostility to CBERS from the solicitors for the plaintiffs, Slater and Gordon. That hostility sought to exclude other applicants apart from the plaintiffs from any funding or assistance from the Christian Brothers for a period of time. There was no evidence whatsoever that the Christian Brothers (either by their leadership or by their solicitors) would take the "retaliatory" approach referred to by Mr Stephens in his evidence.57 Instead, it was the approach of Slater and Gordon that was retaliatory. The leaders of the Christian Brothers refused to restrict their provision of services to a small sub-set of men and continued working to implement the ISERV recommendations. Maria Harries described this approach as a fundamental philosophy of CBERS:

“We made it very clear from the beginning…we accepted people on the basis of their need

and we honoured their history and we were bearing witness all the time to the terrible

experiences they have had, and that they were believed. They were all fundamental

philosophical points that we had. So there was no engagement around whether or not you

had had any money from anyone - certainly not from the Christian Brothers.”58

The Submissions note (in paragraph [251]) that ISERV and CBERS were "a pastoral response on 69a needs-based model to respond to the needs of former residents of the Institutions". Pastoral, as Maria Harries explained, is not a word with a religious connotation, but historically refers to the concept of a shepherd, and means all those things that go along with “being a shepherd, a carer”… “looking after a group of men and women who hadn’t been looked after.”59 If findings are to be made, there should be a positive finding in favour of the Christian Brothers proposed in relation to their efforts in the early 1990s and beyond to provide a response for the ex-residents and victims of abuse. Given the knowledge of the Royal Commission gained through various case

53 Ex 11-27 Shanahan [210]-[211] 54 Ex11-27 Shanahan [101] 55 Ex 11-07 at CTJH.056.18004.0114, See recommendation 1 56 Harries TWA1728:2-6 57 Stephens T1861:15-24 58 Harries TWA 1741:25-32 59 Harries TWA1754:18-28

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studies, the attempts by the Christian Brothers to achieve a pastoral, needs-based response through bodies independent of the Church, together with an apology, should receive recognition. The Church parties hope that the Royal Commission will also gain some useful learnings from the actions taken by the Christian Brothers in Western Australia for providing a response outside of the usual litigation and direct compensation models of redress. The Senate Community Affairs References Committee Inquiry into Children in Institutional Care, Forgotten Australians in 2004 said that CBERS was the “best practice” model in Australia.60

In particular, the work of Maria Harries to establish an inclusive, independent service to meet the 70needs of ex-residents of Christian Brothers homes was supported by the Christian Brothers and should be noted. Dr Harries gave evidence about the independence of the organisation,61 the role of the advisory group,62 and her efforts to establish trust.63 CBERS was a ground-breaking service and the first of its kind64 and received the full cooperation of Christian Brothers.65 Not only was CBERS a first of its kind in the 1990s – no similar service has been set up since.66

CBERS had started as a two day service, but had expanded to a full time service within 6 months. 71By the end of two years (it was clear, as the men were telling them) CBERS was a trusted service.67

In the period from 1994 – 2005 some 528 individuals registered for the services of CBERS, the 72main services being counselling, reunification assistance, occasional support, advocacy and family tracing requests.68 CBERS was wound up following feedback from a review of the services and a large meeting of ex-residents.69 The feedback from ex-residents was that their needs had evolved and that they wanted a drop in centre. This was funded by CBERS.70 Counselling continued to be provided by Dr Philippa White under the name of CBERS Consulting.71 The services truly represented an attempt to address the wishes of the men, not the views of what "should" be provided for them.72

13 Part L - Current policies and procedures

The policies and procedures of the Christian Brothers have developed significantly since the late 731980s and traverse a wide range of matters including child protection, the handling of complaints of child sexual abuse and the disciplining and reporting of offenders. These developments have been influenced by changes to government legislation, discussion at the Congregational Chapter level, experiences at the diocesan level and advice from social work and psychology professionals.73

60 Harries TWA1759:12-17 61 Harries TWA 1732.27, 1736.06, 1737.04 and .29 62 Harries TWA 1738.13-35 63 Harries TWA 1743.14 64 Harries TWA 1748.35 65 Harries TWA 1752.42 66 Harries TWA1760:22-29 67 Harries TWA1743:11-22 68 Ex 11-16 Harries [38] 69 Harries TWA1757:14-24 70 Harries TWA1757:24-31 71 Harries TWA1757:33-46 72 Harries TWA 1759.25 73 Ex 11-29 McDonald [234]

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Brother McDonald stated there have been a number of policy development initiatives, including: 74

(a) providing a Memorandum to Principals and Teachers concerning Child Protection which sets out the interim arrangements following an allegation and guidelines for student-teacher interaction74

(b) implementing a Code of Professional Conduct (Code) for all staff of Christian Brothers’ schools. The Code sets a standard of the qualities staff are expected to exhibit in dealings with students, defining ‘sexual harassment’ and sets out the principles and protocols for classroom practice and out of school activities75

(c) the application of various child protection policies, including:

(i) Safeguarding Children and Young People: Resource Document re Child Protection

and Guidelines for the Oceania Province of the Christian Brothers

(ii) Child Protection Policy dated May 2013

(iii) Code of Conduct Policy, and

(iv) Code of Conduct for Interacting with Children and Young People76

(d) the application of complaint handling policies, including:

(i) Towards Healing

(ii) Child Protection Policy and Guidelines, and

(iii) Mandatory Reporting and Investigation Policy77, and

(e) implementing policies and procedures for disciplining and reporting an accused, including:

(i) Towards Healing, and

(ii) Growth Through Fragility, a protocol and contracts policy that deals with the initial contact with an accused and assessing any changes to an accused’s community that may be necessary. It also describes the steps an accused must take in response to the allegation.78

The effect of these principles, policies and procedures is to ensure there are appropriate 75mechanisms in place to protect and safeguard children in the care of Christian Brothers’ institutions and to effectively manage and appropriately respond to allegations of abuse when they arise. They provide screening of prospective employees, impose mandatory reporting requirements and require adherence to the Code.79 They also set practices and guidelines for complaint handling that aim to provide both a legal and pastoral response to allegations.

74 Ex 11-29 McDonald [240] – [241] 75 Ex 11-29 McDonald [243] 76 Ex 11-29 McDonald [243] – [245] 77 Ex 11-29 McDonald [246]– [251] 78 Ex 11-29 McDonald [252] – [258] 79 Ex 11-29 McDonald [245]

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14 Part M - Current oversight

The Church parties do not wish to add anything to this section. 76

15 Part N - Systemic Issues


16 Part O - Civil Litigation

As no adverse findings are proposed by Counsel Assisting, the Church parties do not wish to deal 78in any great detail with the Submissions in paragraphs [297] to [416].

However, were the Commission to consider adverse findings against the Christian Brothers in 79their conduct of the civil litigation, the Church Parties would wish to be heard in some detail on their role in the proceedings.

Reference is made to the apology which was given by the Christian Brothers in 1993, before the 80civil litigation commenced, and before the Christian Brothers had notice of the civil litigation.80 The apology which was published in the Western Australian press specifically encouraged victims to come forward for practical assistance.81 Further, the Holy Spirit Province of the Christian Brothers had sought to engage with victims, either through VOICES or otherwise and wished to set up a reconciliation trust prior to the publication of the apology.82

In particular, the characterisation by Mr Stephens of the Christian Brothers' handling of the 81litigation as recited in par [407] must be considered in the light of other evidence, in particular by Mr Harrison but also Br McDonald, that the proceedings were complex, and that the Christian Brothers as much as the plaintiffs were feeling their way through the issues. The evidence by Mr Harrison clearly indicates that from the early stages of the litigation there was a “battle” throughout to get enough information about the litigation83. It is clear from the evidence of Mr Harrison that the Christian Brothers sought particulars about how many of the 241 cases making up the civil litigation involved abuse, and of what kind, in circumstances where the civil litigation had been brought without warning, in conjunction with a media campaign on the other side of the country84.

Mr Stephens' words should not be accepted as being a proper characterisation of the attitude 82and intent of the Christian Brothers during the litigation. The evidence of Mr Harrison is clear as follows:

“One thing that was always clear to me from my conversations with the Brothers was that

the Brothers would not allow these men to go without some kind of remedy and address

[sic] at the appropriate time. The issue was how much of that package of measures should

80 Harrison TWA 1882.45-47 81 Ex 11-27 Shanahan [101] 82 Ex 11-27 Shanahan [49]; [65]-[69] 83 Harrison TWA 1885.29-33 84 Harrison TWA 1888.6-19

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be tied up into the litigation system and how much should come through CBERS and other

kinds of supports and facilities.”85

Further, the evidence of Brother McDonald is clear that the Christian Brothers would have preferred to go to a mediated settlement. Brother McDonald states as follows:

“There were was no doubt in my mind, and I really would have preferred to go the way of

mediation, to a mediated settlement. Frankly, I felt locked-in.”86

It is clear that the Christian Brothers were advised by legal representatives in relation to the 83technical points of the litigation, and that advice was accepted87. What is apparent from the evidence of Brother McDonald, is that the Christian Brothers were caught in an environment which they didn’t understand. However, their preferred course remained a mediated settlement.

Further, the view of Mr Stephens that the WAIRT provisions were "complex and lacked respect 84and integrity for the victims"88 should not be accepted, as there is no evidence that the Trust was implemented and administered in anything other than an entirely proper way, with three independent trustees and a trustee from each side, being partners of the respective law firms.

The hostility of Slater & Gordon towards any response other than that achieved through the civil 85proceedings was evident through its advertisements and correspondence. Brother McDonald gave evidence as follows:

“Question: Were you also aware that, at one point, after the litigation had

started, there was some difficulty experienced by the Western

Australian Province – the Holy Spirit Province – by reason of a

letter from Slater & Gordon and VOICES urging men not to

contact either ISERV or the helpline?

Brother McDonald: I am. I believe, and I know, it was in fact a full page statement

on the back of the VOICES Newsletter sometime in early 1994,

a full page statement saying really “Don’t go near the

Brothers””89

A copy of the statement annexed to the Interim ISERV Report, and states:

“From the information we have received, it appears that the above services are offering

free psychological help, advice and in some cases, free air travel back to the United

Kingdom.

In the event that you are pursuing a claim for damages arising from your period in the

custody of the Christian Brothers, we would advise against seeking the assistance of this

Panel and/or Help Line service.”90

85 Harrison TWA 1889.12-18 86 McDonald TWA 2227.33-35 87 McDonald TWA 2230:12-17 88 Stephens TWA1840:10-11 89 McDonald TWA 2276.36-45 90 Ex 11-30, Tab 58, CTJH.056.17118.0158 at CTJH.056.17118.0191

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Further, the statement of the evidence does not include the letter from Slater and Gordon 86containing the proposed limitation on the Christian Brothers' ability to make provision for the needs of all ex-Residents in the following terms:

“The Trust is limited to clients of Slater & Gordon on or before 1 January 1996 and

Christian Brothers undertake no offers of settlement will be made in other cases and no

gratuities (beyond pre-existing schemes) for three years.”91

That evidence would fit appropriately around the recitation of facts in par [366].

Finally, the characterisation by Mr Stephens of the Christian Brothers’ handling of the litigation 87should be put in context in circumstances where:

(a) Brother McDonald gave evidence that he never instructed that an offer be put to Mr Stephens that the legal costs of the Christian Brothers be paid as a settlement of the proceedings92

(b) no costs orders in favour of the Christian Brothers were ever enforced or chased up93

(c) the Christian Brothers paid Slater & Gordon $1.5m towards the legal costs incurred by Slater & Gordon, in circumstances where there was no legal obligation to do so (the Christian Brothers having agreed to increase their offer to pay Slater & Gordon’s legal costs from $750,000 to $1.5 million), and

(d) Brother McDonald has given evidence that at no time did he believe that the Christian Brothers had the “leading hand in the litigation”.94

The characterisation by Mr Stephens of the Christian Brothers’ handling of the litigation cannot be 88supported in light of the evidence.

17 Part P - Redress WA


18 Part Q - Systemic Issues arising from the civil litigation and Redress WA


19 Parts R and S - Criminal Justice and Systemic Issues arising

The Church parties do not wish to add anything to these sections. 91

91 Ex 11-21 at CTJH.056.17128.0361 92 McDonald TWA 2283.16-28 93 McDonald TWA 2283.30-37 94 McDonald TWA 2284.24-27

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Annexure A

Para Submissions Church parties’ submissions

[158] In 1934, Brother Sebastian from Bindoon was identified in a visitation report as being “not the correct type to be in charge of a Government subsidised Institution which is so closely watched by the Child Welfare Dept. and so much under the notice of the public…”172

172 Ex 11-1 Tab 2, at CTJH.056.11102.0012.

There is no allegation of sexual abuse by Br Sebastian in the visitation report. The complaint was that he was not an appropriate manager for the school.

[159] In 1936, Brother Traynor from Tardun was the subject of correspondence to the Brother Superior following a visitation concerning his immoral dealing with boys.173

173 Ex 11-28 Tab 101, at CTJH.056.11044.0170.

Brother Traynor was not at Tardun.

Refer:

COD Summary at page 1

“File 007 – Documents 3, 5, 17, 38 and 48 mention Brother Green. Document 41 – references to charges against Brother Traynor in 1936 – not in W.A.” [Ex11-1 Tab 36 at CTJH.056.11091.0063_R]

The Scheme [CTJH.056.18005.0001]

The visitation reports for Tardun for 1934 to 1938 [November 1934: CTJH.056.15024.0030; July 1935: CTJH.056.15024.0038; December 1936: CTJH.056.15024.0043; December 1937: CTJH.056.15024.0052; September 1938 - CTJH.056.15024.0068]

[160] In 1943, a scrutiny book extract recorded that Brother Murphy was transferred to Strathfield in 1943 to "live down gross accusations by evil boys".174 Brother Shanahan accepted in evidence that the suggestion was that the accusations were made against Brother Murphy and not believed.175 Reference is also made to Brother Murphy having been removed from Clontarf, which Brother Shanahan thought occurred in the late 1950s.176

This incident should not be used in support of an inference that the Provincial Council had knowledge that child sexual abuse was occurring at Tardun. The allegation was thoroughly investigated, with the boy concerned denying anything occurred, and Br Murphy being exonerated. [Ex 11-1 Tab 40, at CTJH.056.11094.0175_R]

The Christian Brothers became aware of many allegations of sexual assault made against Brother Murphy during the 1990s.

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174 Ex 11-1 Tab 40, at CTJH.056.11094.0175_R.

175 Shanahan TWA2121: 23-33.

176 Shanahan TWA2122: 38-40.

[161] In the same year, a visitation report recognised that there was little privacy for boys from the brothers at Bindoon.177

177 Ex 11-1 Tab 3, at CTJH.056.11102.0023.

The visitation report stated that the crowding on the verandahs gave very little privacy to the Brothers from the boys.

It was noted that the conditions are only temporary as there was a forced evacuation from “C” and the school was going through “the difficult pioneering phase”. [Ex 11-1 Tab 3, at CTJH.056.11102.0023]

[162] In 1944, a complaint was made by a parent to the Detective Officer that Brother Foy was interfering with their son at Castledare. The Brother was transferred to Leura (a retirement home and also a residence for Brothers under investigation) where he had no more contact with boys.178

178 Ex 11-1 Tab 40, at CTJH.056.11094.0175.

Brother Foy denied the allegation but nevertheless was taken out of school and sent to Leura [Ex 11-1 Tab 40, at CTJH.056.11094.0175]

[165] In a 1951 visitation report concerning Clontarf, it was stated that the "Brothers should be most careful at all times to preserve the greatest reserve with the boys. Special care is called for in the dormitories. The hands-off Rule is our safeguard."180

180 Ex 11-1 Tab 13, at CTJH.056.15010.0097.

The recommendation is a general one and does not arise from any specific allegations raised in the visitation report [Ex 11-1 Tab 13, at CTJH.056.15010.0093].

[169] In 1957, there was a question of granting dispensation to Brother Jordan because the Provincial Council had not been happy about his relationships with boys. Ultimately, the Council voted against his dispensation.184

184 Ex 11-1 Tab 40, at CTJH.056.11094.0175.

The dispensation of Br Jordan referred to at [169] related principally to his appearance in Court following the making of obscene calls to a lady. [Ex 11-1 Tab 40, at CTJH.056.11094.0175]

The reference is to unhappiness with Br Jordan’s “relationship with the boys at Tardun”.

The submissions incorrectly record that the Provincial Council voted against Brother Jordan’s dispensation. The Provincial Council voted 5 to nil in favour of his dispensation. [Ex 11-1 Tab 40, at CTJH.056.11094.0175]

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[172] A visitation report for Bindoon in 1948 stated that the Superior "cannot get out of his head an opinion he formed of Br Lambert [Wise] when he was at the stage of being a big boy amongst the boys, and still fears his judgment regarding familiarity". The report also stated that Brother Wise "was given very definite and serious advice during the Visitation regarding correct attitude and demeanour towards the boys". The report also cautioned that boys "should not be allowed to make up a Brother's bedroom".187

187 Ex 11-1 Tab 11, at CTJH.056.11102.0073.

No allegation of sexual assault being made against Br Wise in the documentary evidence at this time.

[173] In a later visitation report concerning Bindoon dated April 1952 it states that the practice of sending boys to Brother Wise's room for attention to bruises and similar complaints is “dangerous and unnecessary with the Nuns available”.188

188 Ex 11-1 Tab 14, at CTJH.056.11102.0271.

No allegation of sexual assault being made against Br Wise in the documentary at this time.

It was the Superior who had been sending boys to Br Wise’s room for attention to bruises and similar complaints. [Ex 11-1 Tab 14, at CTJH.056.11102.0271] The Superior was told to find a safer arrangement.

[177] In a visitation report concerning Clontarf in July 1957 it was recorded that Brother Angus was "found at fault in permitting boys to enter his bedroom and was given to understand that a serious view is taken of such conduct".192 The same visitation report also stated that:

“Fault was found at Visitation with the manner in which the boys wander through those parts of the house that are reserved for the Brothers and the Superior was directed to see that the rule regarding the enclosure is strictly observed. There appears to have been serious violation in this matter in the recent past and boys have been known to enter a Brothers' room, singly and in groups, and to spend considerable time there.”193

192 Ex 11-1 Tab 22, at CTJH.056.15010.0117.

193 Ex 11-1 Tab 22, at CTJH.056.15010.0117.

No allegation of sexual assault being made against Br Angus in the documentary evidence at this time.

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[180] In October 1959, in a letter from an Assistant to the Superior General in Dublin, Brother Duffy, to the Provincial in October 1959, Brother Duffy stated in relation to Brothers Angus and Marques:

“…it seems to me, if my memory serves me correctly, that similar charges were preferred on some former occasion… I find it difficult to accept the claim of the young Brother that he did not realise that his conduct in Clontarf was very dangerous, and very unseemly. His very instincts would surely warn him. In any case it would seem that he has a most dangerous weakness, to say the least.” 196

196 Ex 11-1 Tab 22, at CTJH.056.15010.0117.

The reference to the “young Brother” in the October 1959 letter is a reference to Brother Laurian McLaughlin not Brother Marques.

[187] In 1946, a further letter to the Superior General reported that Brother Keenan was in "serious trouble again, interfering with a boy at Lewisham… He says that when we has in trouble before he made as strong a resolution as possible to avoid trouble, but still lapsed. He thinks and I am inclined to agree that the probability is against him… I am putting these things before you in a preliminary fashion only”.203 It is submitted that it can be concluded that Brother Keenan was not removed from contact with children and not given a dispensation notwithstanding his disclosure in 1941.

203 Ex 11-28 Tab 108, at CTJH.056.11044.0219.

The letter states that after 1941, Br Keenan was given dispensation, but refused to accept it. He was, at the date of the letter considering dispensation again.

The COD Summary notes that the minutes of the Provincial Council in 1947 “recommended dispensation” in respect of Br Keenan.

There is no evidence as to what occurred after that.

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