Catholic church uses paedophile’s death to try to block NSW survivor’s lawsuit
The Catholic church is attempting to use the death of a paedophile, who had been jailed for the abuse of 17 children, to shield itself from further civil claims from his survivors.
In recent months, the church has adopted an increasingly aggressive approach to survivors in cases where paedophile clergy have died. It has sought to capitalise on a recent decision in New South Wales’s highest court that ruled a priest’s death meant the church could not receive a fair trial in a claim brought by a woman known as GLJ.
The landmark ruling, which is being appealed in the high court, has prompted the church to seek permanent stays in a string of cases where clergy have died.
The latest involves a claim brought by Mark Peters, a pseudonym, who alleges he was sexually assaulted as a student at a primary school run by the Marist Brothers, a Catholic order, in 1969 and 1970.
The alleged perpetrator was sentenced to a lengthy term of imprisonment for sexually assaulting 17 victims in 2015. Church lawyers attempted to interview him about his conduct but he declined, and told them he did not wish to be contacted by them or the Marist Brothers again.
He died between 2015 and the lodging of Peters’ claim in 2021.
Marist Brothers is arguing its inability to obtain a witness statement from the alleged perpetrator, due to his death, means it cannot receive a fair trial.
The hearing of the permanent stay will take place later this month.
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Peters, represented by Koffels Solicitors and Barristers, had attempted to delay the hearing to allow a high court appeal in the GLJ case to be finalised. The NSW supreme court rejected the request to delay last month.
The church’s approach in such cases has prompted widespread concern and representations to the NSW attorney general, Mark Speakman.
It takes survivors on average more than 22 years to make a complaint, due to the huge barriers they face, making it common for clergy to have died by the time they seek justice.
Recognition of the delay and the work of the child abuse royal commission led all Australian jurisdictions to scrap their statute of limitations for such cases.
Law firms that regularly handle child sexual abuse cases say the ruling in the GLJ case has encouraged and emboldened the church and other institutions to seek permanent stays in the many cases where paedophile clergy had died, even “where evidence indicates a propensity for child abuse”.
In the GLJ case, there was clear evidence that high-ranking church officials knew the priest was abusing boys at least four years before GLJ’s alleged assault, but did not remove him from the clergy, instead shuffling him through parishes where he continued to abuse children.
Multiple firms representing abuse survivors say they have also noticed a significant shift in the church’s attitude to negotiating in such cases, adopting an aggressive approach to pressure survivors to accept “paltry amounts” while citing the risk their claims will be permanently stayed.
Maurice Blackburn’s NSW abuse law leader, Danielle De Paoli, said the impact of the GLJ decision and similar rulings had been “significantly detrimental on our clients”.
“It has been most noticeably felt in the Catholic church-type matters,” she told the Guardian. “The dioceses, Marist, across any of those Catholic entities, is where they are playing a bit more hardball, where they are taking the point.
“A lot of clients are obviously really, really disappointed. They will often say it is yet another underhanded tactic by the church to … continue to push their problems away.
“It just adds to the trauma that they’re already experiencing.”
The Guardian approached the Marist Brothers for a response.
The church has previously declined to comment on the GLJ case, which is now before the high court. But it said in June that its strategy would “continue to be guided by the unique facts and circumstances of each case”.
The church’s lawyers said: “Whilst our client normally desires to assist the media, it is inappropriate to make any further statements whilst the time period for applying to the high court has not yet expired.”
• This article was amended on 2 March 2023. An earlier version erroneously identified the alleged perpetrator as a priest.
who can generate returns from their large super balances to more than cover living expenses.
This traditionally leaves the balance intact to pass to the next generation.
“Is a generous tax break on balances above $3m needed to ensure people have a comfortable retirement? The answer is pretty self-evident – it’s not,” says Joey Moloney, a senior associate at the Grattan Institute’s economic policy program.
“A lot of balances that high don’t get spent down in retirement, they just end up being left as bequests to children. That’s a bad policy outcome.”
Are the changes equitable?
When the new policy kicks in, there will be a cap on the tax treatment of earnings in a super account at the $3m mark, jumping from 15% to 30%.
Importantly, those with large super balances only pay that higher rate of tax on earnings coming from assets above $3m, so they still benefit from the 15% rate.
For sums above $3m, the 30% tax rate on earnings is still far more competitive than what the account holder would be paying if they were earning that income outside super and paying the top marginal tax rate.
It is in line with the incoming stage three tax rate applied to those earnings between $45,000 and $200,000, also 30%.
“If 30% is good enough for someone making $50,000 a year working in a retail shop, then it’s good enough for a retiree with three million bucks in super,” Moloney says.
Not-for-profit industry super funds say the changes address “an obvious system inequity”.
Asfa, which has both industry and commercial fund members, has yet to formally respond. It has previously proposed the cap be triggered for balances over $5m.
Why have these 80,000 been targeted?
Unlike the progressive nature of the personal tax system, the super system is much flatter. This means wealthier people have benefited most given they have made larger contributions, and taken advantage of the flat 15% rate.
While few people welcome an unfavourable taxation change, those with large super balances have enjoyed years of generous arrangements, which has helped grow their nest eggs.
The $3m limit isn’t indexed, which means it will capture more people as the years roll by. But Moloney says it’s no threat to those seeking to save enough for a comfortable retirement.
“This is an improvement to the super system. By posing a higher tax rate on these really high balances we are trimming off some of the worst excesses,” he says.