Melbourne Catholic Archbishop Denis Hart instructed his lawyers to "take the defences" in a high-profile victim's court case, it was revealed hours after he told the sex abuse royal commission that he had only told the lawyers to resolve the matter as quickly and compassionately as possible.
The directive, in a note by the church's lawyer, Richard Leder, of Corrs Chambers Westgarth, raises further concerns about the church's combative legal response to victims of sexual abuse at the hands of paedophile priests.
When asked about the note, Archbishop Hart began a heated exchange with Tim Seccull, the lawyer representing the Foster family, which filed a statement in 2003. Two of Anthony and Chrissie Foster's daughters were sexually abused by serial sex offender Kevin O'Donnell.
The Archbishop turned to chairman of the commission, Justice Peter McClellan: "I've already provided evidence on this point ... I can repeat it if Mr Seccull wishes."
Mr Seccull suggested that the instructions were consistent with the church's default position until 2002 to warn victims in correspondence that any legal challenge against the church would be "strenuously defended".
"I think I have said in my evidence that I wanted the matter settled. That was my primary objective," the Archbishop said.
"Could you just answer the question please," Mr Seccull interjected.
Archbishop Hart continued: "That I wanted the matter to be settled and I wanted it to be done in the best possible way."
He said that this was his understanding of "what I did and what our solicitors understood they were doing".
"You had a choice to defend the litigation or resolve the litigation," Mr Secull noted.
"I must respect whatever path people choose if they choose to go with the church's path [or] go by litigation, we respect that choice," Archbishop Hart said.
Mr Seccull suggested that if the church had not told the lawyers to defend the legal action in court, it would have reduced the Fosters' anxiety in the two years leading up to their settlement.
The church's independent commissioner Peter O'Callaghan, QC, had previously offered the Fosters a $50,000 ex gratia payment, after finding that O'Donnell had sexually abused their daughter Emma. Mr O'Callaghan had also indicated he would make a similar finding for their daughter Katie, when they began proceedings against the church.
In 2005 the Fosters received a $750,000 settlement from the Catholic Church's Archdiocese of Melbourne. But Emma later took her own life, and Katie now requires 24-hour care after sustaining permanent brain damage in a car accident.
"I didn't intend to cause further distress," Archbishop Hart replied.
Justice McClellan asked if Mr Leder had ever discussed with Archbishop Hart "that rather than launching down the litigious technical path, which happened, it could've been possible to engage a mediator [at the outset]?"
"Not that I recall," Archbishop Hart replied.
"If this should ever happen again bear in mind that's always a possibility," Justice McClellan said.
When Mr Leder was questioned over the same instructions last week, he said that it was ordinary legal practice to avoid admitting liability, without denying allegations against a client. He said he hoped the Fosters' lawyers would have explained this to them.
The revelations came on the final day of the royal commission's Melbourne hearing on Tuesday. The commission was examining the effectiveness of the church's Melbourne Response, an internal process for handling victims' complaints.
Since it was established in 1996, it has paid about $10 million to 326 victims without accepting liability for their child abuse claims.
Speaking outside the commission, Mr Foster said he was "reasonably satisfied" with the hearing. But he said "I would've liked to have seen the Archbishop actually respond to his own conscience and his own morality. To do the right thing and just move forward ... instead of calling another so-called independent review of [Melbourne Response]."
