The Australian Innovation Community

Father Frank Flynn (left)
I was deeply disturbed by Monday’s Four Corners program on child sexual abuse by Catholic clergy, not because it’s any news as such but because very little seems to have changed despite almost 20 years of similar appalling revelations. I’ve been thinking about it quite a lot since Monday.
Why is the Church seemingly incapable of dealing appropriately with such matters? That’s a question I want to explore in this article, but first I want to traverse my own history with the Church because it partly explains why I find this topic so personally upsetting.  My reaction to the Church has been shaped for the better by getting to know three extraordinary and inspiring priests at different stages of my life, but also for the worse by very negative experiences with the Institutional Church.
I was born into a lapsed Catholic family, at least on my mother’s side.  Our parents made us go along to the local Methodist sunday school with the family across the road, not because my parents were believers but because Dad thought we should learn about Christianity so we could make up our own minds when we were old enough.
It’s an approach with which I still agree, even though I was molested by a music teacher at the age of 13 while taking piano lessons at the local church hall. He was a Methodist so I have personal experience that kiddy-fiddling isn’t confined to Catholics.

My first dealings with the Catholic church were much more positive. In Year 11 I became involved with a local Catholic youth group focused significantly on opposing the Vietnam War and run by the activist Harbord (now Freshwater) parish priest Father Roger Pryke.  He was a truly inspiring man with a passionate social conscience. However Father Pryke left the Harbord Parish quite suddenly, in 1971 I think.  It doesn’t mention this in the online material I’ve found but I was told at the time that Father Pryke had been removed by the Diocesan Bishop after representations by conservative parishioners upset that he was radicalising their kids.  Apparently he resigned from the priesthood the next year and married, but remained active in social justice areas for the rest of his life.
A little later when I was studying law at Sydney University the ripples from Father Pryke’s social conscience touched me again when I became part of a group of volunteer students helping to renovate derelict terrace houses in The Block at Redfern for re-occupation by Aboriginal families, a project initially organised in large part by one of Father Pryke’s proteges Father Ted Kennedy. I didn’t really come to know Father Kennedy but a passage from his SMH obituary may be relevant to the current attitude of Cardinal Pell to Monday’s Four Corners program and priestly child abuse in general:
Increasingly, Kennedy came to emphasise a stream of thought that had always been part of his teaching, the importance of the poor. In 1970 he had fashioned a retreat for Queensland seminarians around the notion that the disadvantaged and the down-and-outs are our brothers. At Redfern he developed this into a theology of poverty, saying that the poor had special insights into the meaning of Christianity and their voices should be heard in the councils of the church.
Kennedy’s commitment to the marginalised led him to homosexuals, one of the most marginalised groups in the church. As a confessor, he had encountered their “transparent gentleness and a finely tuned nobility born of pain”; nor could he discern violence or hatred or anger or bitterness or rancour or power or force – surely this must be a sign of grace. They were good people, so why were they deprived of Holy Communion?
Reflections such as this led Kennedy to write his only book, Who is Worthy?, in 2000, a response to a position taken by George Pell in 1988 and persisted in afterwards. Writing as a private theologian, Pell had seemed to deny Vatican II’s teaching on the primacy of conscience in religious matters. Kennedy’s generation [KP: especially including Roger Pryke] had worked hard to establish the doctrine of conscience in Catholic orthodoxy, and he responded to Pell with trenchant argumentation based on classic texts from Newman.
In the early 1980s after admission as a lawyer I moved to Darwin to work with its then largest private firm Mildren Silvester. The next year I married my then partner Jenny back in our previous home town of Manly. Jenny was a strong Catholic and wanted to marry in the Church but we ended up with a civil celebrant wedding instead.  The local Manly parish priest refused to marry us because we had been “living in sin” in Darwin for 12 months.
A couple of years later I started my own legal practice in partnership with a colleague Peter Robinson, by purchasing the practice of old John McCormack.  The practice included much of the work of the Catholic Church in the Northern Territory, most of which involved working with Catholic remote Aboriginal communities. The work wasn’t very remunerative because you were expected to undertake it at charity rates, but it was fascinating and rewarding in a wider sense.
That was how I came to know the next extraordinary Catholic cleric who came to influence my life, Jesuit priest and lawyer Father Frank Brennan.  Frank was already quite a high profile priest and I already knew him quite well when in 1987 we travelled together to the Naiuyu community at Daly River to undertake a range of legal matters. Frank suggested that I should consider being formally received into the Catholic Church. I treated this seriously, mostly because of my inspiring experiences with Father Pryke years before. Nevertheless I explained to Frank that I had pretty serious objections to Papal doctrine on a variety of issues including abortion, birth control and homosexuality. Father Frank knew that my objections were principled rather than practical, because we had already discussed the fact that Jenny and I had been trying unsuccessfully to have a child and had applied for adoption. Frank’s response to my concerns was classically Jesuitical: “You know Ken, this question is analogous to the Australian legal system.  The rule of law is fundamental and in our system that involves binding precedent  and an ultimate court of appeal.  I more or less see his Holiness as the High Court and keep in mind that majorities change in time and erroneous precedents are overruled.”
It may be a comment on my own psyche, as well as my experience of how the Church’s priests acted in the real world in my own experience, that led me to accept this explanation as quite satisfactory.  Father Frank presided over my reception into the Church, we adopted our daughter Bec and raised her as a practising Catholic.  And only a few years later Father Frank’s Dad delivered the lead judgment in Mabo which did indeed overrule the erroneous terra nullius precedent.
Over the next few years, before a brief excursion into NT politics, my firm became increasingly involved in acting pro bono for Cambodian and Chinese asylum seekers and emigre East Timorese resistance groups, all of them causes that Father Frank was at the forefront of championing.
My daugher Bec was the agent of our meeting the third extraordinary Catholic priest who influenced my life.  When she was aged about 4 in 1992 we were having a picnic at the waterfront park across the road from our home at Nightcliff Point, when Bec appeared from the direction of the kids’ playground hand in hand with a very old white-haired man carrying a white cane.  “You’re probably worried I’m some sort of child molester,” he said.  “I’m not. I’m a retired priest.  My name is Frank Flynn and I live at ‘The Ranch’ just across the road there.  I’ve just been getting to know your lovely daughter.”
It was an explanation we probably wouldn’t have found anywhere near as reassuring had the incident occurred only a few years later, but at the time we invited old Father Frank to join us. We talked for ages and he became a close friend and almost a grandfather figure to Bec.  It emerged that Father Flynn was not only a retired priest but an eminent, famous eye doctor, and a seminal influence and guide to the equally famous Dr Fred Hollows, as this brief online biography explains.  The next year Father Flynn was inducted into the highest rank of the Order of Australia, Companion with the General Division (AC), a promotion from Officer of the Order (AO) previously bestowed on him in 1979.
Father Flynn became an invaluable confidant during my rather traumatic time in politics, and especially after a second intended adoption in the Philippines which went traumatically wrong. After I lost my seat in parliament in 1994 I spent the next few weeks building a garden and paved terrace for Father Flynn outside his apartment at The Ranch. It was a time for reflection about where my life would go from there, and I talked with Father Flynn for hours while building walls and laying pavers. For the next few years I would see him most afternoons sitting on the terrace in the late afternoon, feeling rather than seeing the sun set over the Arafura Sea.
I went back into private legal practice, but the next year our lives were turned upside down when Jenny’s mother was killed by her next door neighbour in front of Bec, a few days before her seventh birthday.  The ructions went on for years including a (thankfully unsuccessful) High Court appeal by the perpetrator.
The institutional Catholic Church was not especially supportive of our family through that time, and we also became increasingly aware of media reports of priestly child abuse, church cover-ups and lack of support towards victims.  We attended Mass less and less frequently, I began to decline legal instructions from the Church and refused an informal invitation to join the Catholic Board of Education.
Father Flynn became aware of our increasing disillusionment and began inviting us to attend Mass with him at the private chapel at The Ranch (just across our back fence).  We attended every week for a few months out of respect for Father Flynn. But then he became ill and spent increasing amounts of time “down south” getting treatment.  We stopped attending Mass completely and never resumed.  Father Flynn died in 2000 aged 94.  By that time I had found my own path towards serving the community by becoming a law lecturer at Charles Darwin University (as it now is).
All this accumulated experience raises an obvious question for me in light of this week’s Four Corners program.  How can an institution filled with extraordinary, truly good men like Fathers Pryke, Kennedy, Brennan and Flynn fail for so long to deal effectively, justly and compassionately with repeated instances of child sexual abuse by a minority of its clergy?  I don’t have a definitive answer but I can make a few guesses.
The Church is a male-dominated, disciplined, hierarchical institution not unlike the police or military in some ways.  And like those institutions it breeds an inward-looking culture which automatically protects its own whenever they’re attacked by outsiders. We’ve seen a similar phenomenon in reaction to multiple allegations of sexual abuse by Duntroon cadets over a period of years.
Secondly, the core Catholic principle of confession, penance and forgiveness of sin is a wonderful principle in most circumstances, but works very badly when the sinner being forgiven is a hardened pedophile priest. Serial pedophiles apparently don’t actually believe they are doing anything wrong, they are almost sociopaths who have developed very effective strategies to “groom” their victims and lull their parents into trusting the pedophile. Those strategies work just as well on their brother priests, even after they are caught committing behaviour that just about everyone including those brother priests rightly regard as truly appalling.
Third is the Catholic requirement for priestly celibacy, which I’ve always seen as weird if not downright perverse, and which I’m sure contributes to the persistent nature of child sexual abuse by priests despite arguments to the contrary.
Lastly, I’m equally sure that part of it is explained by a pragmatic but ultimately evil belief on the part of many in the Church hierarchy that its assets must be protected against legal claim by alleged abuse victims, because despite human imperfections on the part of some of its clergy the Church does much more good in the world than it does harm.  I think that’s probably true, although I’m not as sure as I know Father Frank Flynn was, and in any event ends can never morally justify the means the Church adopts, at least in my personal morality, though Cardinal Pell’s conscience seems to be differently constructed.  Greens MP David Shoebridge recently explained how it all works in a speech to the NSW Parliament:
In 2007 the case of John Ellis set a terrible precedent in this area and this Parliament has a pressing obligation to remedy it. John Ellis was an altar boy at the Bass Hill Parish of the Roman Catholic Church. He claimed that in the period from 1974 to 1979 he was sexually abused by the assistant parish priest. In 2004 the assistant priest died and his estate left no assets against which the plaintiff could recover damages. Also in that year Mr Ellis brought a common law claim against the Trustees of the Roman Catholic Church and against His Eminence Cardinal George Pell, Archbishop of Sydney, in relation to the abuse he had suffered. The trustees were appointed under the Roman Catholic Church Trust Property Act 1936, a New South Wales Act that establishes a trust that holds all the property of the Catholic Church in this State—property that has been estimated to be worth billions of dollars.
The trial judge in the Supreme Court initially found that the trust could by sued by Mr Ellis in relation to the abuse and granted him an extension of time to allow him to pursue his claim. The judge also held that as Cardinal Pell had not been appointed to that position at the time of the abuse he was not responsible for the abuse and therefore not able to be sued. The court dismissed Mr Ellis’ claim against him. Both the trust and Mr Ellis appealed this decision. In its appeal the trust conceded that an arguable case had been established that the abuse had occurred. However, it alleged that the Catholic Church did not exist in New South Wales as a legal entity. The trust told the court that although it holds all of the Church’s property—and had so at the time that Mr Ellis’ alleged he was abused—that it was not responsible for the conduct of any member of the clergy. The trust submitted that, in effect, the church could not be sued as, in law, it did not exist.
Cardinal Pell maintained his position on appeal that he was not appointed at the time of the abuse. The cardinal who had been appointed at the time of the alleged abuse had since died, as had the alleged abusive clergy member. Cardinal Pell claimed Mr Ellis could not hold him responsible for the abuse. The Court of Appeal agreed with both the cardinal and the trust, and Mr Ellis’ case was dismissed entirely. The court also ordered that he pay the legal costs of the church and the archbishop. The Catholic Church has organised its legal affairs so that, in effect, it is almost entirely insulated from legal claims by victims of abuse.
The law now states that the only entities that exist at law and can be sued by a victim are the individual member of the clergy who is alleged to have been the abuser and the archbishop or head of the relevant religious order at the time of the abuse. As the case of Mr Ellis proves, these defendants are often dead or penniless. Meanwhile, the church and all of its property is comfortably sheltered from compensation claims by a New South Wales law that places its property in its property trust. Mr Ellis took his case to the High Court, which refused him special leave. Mr Andrew Morrison, SC, who acted for Mr Ellis, told the High Court that the Catholic Church:
.. has so structured itself as to be immune from suit other than in respect of strictly property matters for all claims of abuse, neglect or negligence, including claims against teachers in parochial schools at least prior to 1986.
The decision continues to have repercussions for survivors of abuse in New South Wales. The outcome is that in respect of child abuse dating back 20 or 30 years the Catholic Church knows when dealing with victims that it has a complete defence. Victims’ lawyers are increasingly being driven to check nursing homes for elderly archbishops and bishops who may still be alive and can be sued, often years after they have left their office.