How Marists avoided large victim payouts, despite huge wealth

This story is featured on Stuff’s The Long Read podcast. Check it out by hitting the play button below, or find it on podcast apps like Apple Podcasts, Spotify or Google Podcasts.

Warning: This story may be upsetting to some.

Waiheke Island, 2002. Robbie West* isn’t in a good way. He’s taking a lot of methamphetamine and drinking heavily, but making a valiant effort to tidy his life up.

After nearly three decades, he’s realised that the recurring nightmares that keep pushing him back to drink and drugs are actually painful memories he’s been working hard to bury. Having tried police and lawyers to gain redress and compensation for the abuse he suffered at the hands of his schoolteacher – a man we cannot name for legal reasons – he’s now turned to his teacher’s religious order, the Marist Brothers.

West turns up with his counsellor to a small church hall in Oneroa – the main town on the Hauraki Gulf island – where he’s met by Brothers Henry Spinks (who has since died) and Richard Dunleavy, who between them handled the Brothers’ compensation settlements for over 20 years.

“It was so creepy,” West recalls now, two decades later. “The creepiest thing I’ve ever been involved in… even the counsellor that was with me, I looked at her and [her face] was white. The whole thing was bizarre … a real creepy, dark feeling.”

The Marists had insisted West undergo counselling and promise he was clean of drink and drugs before they entered negotiations.

That was a difficult proposition given his chaotic life – one which changed path when he enrolled in a Marist Brothers high school at the age of 11 and was placed in the classroom of a charismatic young teacher. West recalls the first time that teacher took him to the office at the back of his prefabricated classroom and sexually abused him. He also remembers seeing it happen to other kids.

“The abuse began straight away, within the first week I was there,” says West. “There was about eight months I endured of that, on about a weekly basis. That was pretty much the end of my schooling.”

He spent some of his teen years in boys’ homes in Australia, lived on the streets of Sydney, spent his 18th birthday in Waikeria Prison​, and from then until he turned 40 was, in his own words, on a “self-medicated binge and imprisonment lifestyle”.

He collected 42 convictions amid the drugs, which included two heroin detoxes, and an enthusiastic engagement with the rave scene, including importing ecstasy from Europe. “I always thought the abuse was not real, that it was a bad nightmare,” he says. “I had these strange dreams. I often wondered if that stuff had happened. But then I would get black-out drunk.”

Brief spells of sobriety, in rehab and prison, allowed him the clarity to realise it really had all happened. He says he went to police, who told him his teacher had already been prosecuted and convicted on multiple counts of child sexual abuse, so it wasn’t worth another attempt. Later, he learned police had actually once tried to find him as a potential complainant. “That was to me, a big realisation that something had happened.”

West consulted lawyers, who said a civil court case would be fruitlessly expensive. So he contacted the Marists; the teacher confessed to them immediately, and after the Oneroa meeting, he was able to agree a settlement, even though he admits now that he was far from sober. He received $15,000, which the Marists described as a “concrete sign of regret” and the “same as the other victims [of this offender]”. It was all spent, he says, on back rent, meth, and alcohol.

Not until a four-day hangover after his 40th birthday party did West quit drinking; two years later he weaned himself off meth, and he’s been clean for 15 years. Weekly counselling helps; he has some ACC support after they assessed his mental injury at 34%, entitling him to a $10,000 back payment and $5000 paid every five years.

“Life has completely changed… but a lot of the memories of the abuse have become a lot more vivid… they stole the first 40 years of my life.”

West now feels that he was at a huge disadvantage during the negotiations with the Marists. He was in an extremely frail mental condition, had no legal advice, and felt pushed into accepting their terms. “I’ve come to realise I was shot before I could walk,” he says. “As soon as they say the word ‘lawyer’, how can a broken sickness beneficiary [compete with that]?”

He’s since asked the Marists to increase their compensation. They declined. “It’s not as if they haven’t got any money. They can pay huge sums for lawyers to crush some poor bloke whose life is ruined.”

West’s former teacher has been convicted of abuse of multiple boys. Another survivor of the man’s abuse, who has suffered a lifetime of depression and anxiety as a result, told Stuff: “It was a year of anguish, torture and pain… I was looking for the [school] gates from the first incident, I thought ‘f…, I’d better get out of here’.”

A former classmate of the teacher’s at the Marist Brothers seminary – whose name is suppressed – gave him a job. He’s now retired.​

When Stuff approached the teacher at his home, he said: “No, thanks. You’re trespassing. I’m calling the police.”

‘Making it right’

In 2002, the Boston Globe’s investigation into widespread abuse by the city’s Catholic priests sparked a worldwide reckoning of the church’s long history of paedophilia and cover-ups.

Since then, abuse survivors have come forward in their thousands, told their stories, and in many cases, received compensation: not an easy process when many offenders are dead, many countries had Statute of Limitation laws to hurdle, and the church proved a tough negotiator.

But worldwide, survivors have recorded landmark victories. Last year, Irishman Tony Gribben publicised his €100,000 (NZ$168,000) payment from the Irish church: “Too many people take an envelope and disappear,” he says, “but my point was exposure of the abuse and justice.”

In Scotland this February, there was a record £1.4m (NZ$2.7m) settlement; multi-million-dollar payments have been commonplace in the US for two decades, while last November, the Australian branch of the Christian Brothers made an AU$3.7m (NZ$4.1m) payout.

But, like Robbie West*, no survivor in New Zealand has come anywhere close to those numbers. Why?

There are several reasons. First, a legal system that lawyers and advocates say is overdue an overhaul. Second, our unique ACC system, which curtails many routes to substantial payouts. But perhaps most importantly, the New Zealand Catholic Church – with both Marist groups enthusiastic participants – actively worked to keep their payouts low.

In 2002, as the wave hit, senior officials from Catholic organisations met in Wellington to talk about the looming issue of sexual abuse compensation claims.

At that meeting, they agreed to keep settlements secret, to impose payment caps, and insist on deals having a clause denying any legal liability. The minutes declared: “Our objective is not to evade any moral obligation we might have to redress injustices, but is to exercise responsible stewardship over the resources that have come mainly from the Catholic people.

“How the people feel about payments is a proper matter to take into consideration. The Catholic people have already contributed to the ACC fund set up by the government specifically to meet these needs.”

Later that same year this plan seemed to be breaking down when horrific and widespread abuse suffered by pupils at the Marylands boarding school in Christchurch, run by the Catholic order the Brothers Hospitallers of St John of God​, was exposed.

Psychologist Michelle Mulvihill and Peter Burke, the leader of the Australian-based order, toured the country agreeing payouts averaging $63,500. Mulvihill says these payments were much lower than they gave their Australian victims (the Kiwis, she says, were treated as “second-class citizens”) but it still broke the church’s payment ceiling and caused panic in the hierarchy.

A memo from Auckland bishop Pat Dunn to other church leaders argued they must “urgently agree on a maximum level of payment for these abuse cases. We do not want to set a limit in Auckland and then find that some other Diocese sets a different limit. Each time someone raises the goal post, we are all under pressure to follow.

“I do not believe that we should ever publicise this agreed maximum amount, but it certainly would help if we all could be of one mind on what this maximum should be.”

Dunn said Auckland had followed the Marist Brothers’ then cap of $12,000. But now they were moving towards the Marist Fathers’ maximum of $30,000. He wanted to distance the rest of the church from the expensive St John of God deals, and included suggested talking points – that the St John abuse was worse, and the order had followed an Australian settlement scale.

The Marist Fathers’ scale, first conceived in 2002, had evolved by 2004 into a ‘checklist’, based on the principle that someone suing the order in civil court “would be lucky” to get $20,000, making a $30,000 upper limit relatively generous.

A memo from leader Tim Duckworth listed aggravating factors – youth, how serious the abuse was, violence, humiliation, and if the abuser was ‘in loco parentis’ (acting in a parental capacity) – and lessening factors, such as if an accused offender had a name for “giving everyone sex talks”, suggesting this gave a survivor “an entree to discuss what had happened to them”. Sexual harassment alone, he wrote, was “not considered a reason” for a payout – “actual touching is required”.

The Marist Fathers’ scale went from $5,000 to $30,000. And “while I would never say this publicly because it would be misconstrued” anyone who had complained to them, but not the police, should receive a quick settlement to save costs and time, Duckworth noted.

If the abuser were dead, then Duckworth wanted a “small” settlement “if that is necessary” because “we cannot really accept one side of a case alone”.

This was the case even if someone was known as a repeat offender: “If it were to become known that all you had to do was say that Fr (Father) X abused you during your time at St Trinians and you received a payment of $10,000 then why would fraudsters not try it.”

The Brothers’ Peter Horide said they too had a “template of ideas” for setting payments, but wouldn’t share it. He hoped their payouts were “life changing in some small way”.

Another meeting of church leaders in 2005 again addressed the issue, with church lawyer Phil Hamlin telling the Royal Commission into Abuse in Care, which is investigating abuse in state and religious settings, it was “in light of settlements being made by Australian entities that were far higher than what was being discussed in an NZ context”.

That gulf between Australian and New Zealand settlements has caused surprise across the Tasman. When specialist Sydney lawyer Jason Moody represented Australian-based Kiwi Anna Thompson* in a claim against the Marist Brothers for abuse suffered as a 7-year-old, he was stunned by the fishhooks of the New Zealand legal system – and the paltry level of payouts here.

Anna was offered $5,000. Moody wrote to the Australian Marist Trust board, telling them of this “astonishing” offer, and asked if it was a “matter of concern” for them that New Zealand was “not much on a par”. He asked if they might “reach out to them [the NZ Marist Brothers] and enlighten them.”

They declined.

Payouts a ‘joke’

“When they offer $20,000 or $30,000, it’s a joke,” says Graham Rush*, who was sexually abused by a notorious paedophile, Marist Brother Kevin Healy, when he was 12. Graham has a friend in Australia who received $1m.

“Forty-four years of the [chaotic] life I led, because I was 12 years old and abused by him every single day I stepped into the school. What price do you put on that? What price do you put on me going to jail, all my problems with relationships, the way I self-destructed?”

In his Royal Commission evidence, Tim Duckworth said the Marist Fathers made payouts to 28 of 81 complaints received between 1947 and 2018.

Those 28 payouts totalled just over $1 million, with the highest payment being $50,000 and the lowest being $5000. That’s an average of around $35,700 per claim.

In a statement, Duckworth said the Marist Fathers had “tried to be fair and equitable” to claimants, taking advice on settlements from lawyers, counsellors, social workers and ACC specialists.

“Equity and fairness were key considerations. Using the information received, guidelines were discussed to determine an appropriate amount, normally designated as ‘ex gratia’ to signify it was not the result of a legal or judicial process and was because, after an inquiry into the complaint, we, on the balance of probabilities, believed the sexual abuse had occurred and acknowledged the harm done to the survivor.”

Marist Brothers delegate Peter Horide told the Commission the Brothers had paid out 57 cases, totalling $540,000 – an average of $9,473. The Brothers capped payments at $10,000 through the 1990s, then lifted the official cap to $20,000. Their biggest settlement was just over that, at $23,000.

Horide told the Commission that was “much less” than complainants had hoped for: “Complainants sometimes see media about complainants in the United States or Australia receiving millions of dollars and come to the Brothers expecting comparable amounts. The New Zealand system is not comparable to these jurisdictions, in part due to the ACC scheme…”

Is the game rigged?

The church knew the law in New Zealand was stacked in its favour. That’s why the Australian lawyer Jason Moody eventually advised Kiwi complainant “Anna” to decline that $5,000 offer and closed her file: “There is not much more we can do for you given the current laws in New Zealand”. She has still to settle her case.

Lawyer Sonja Cooper says there are “lots of legal barriers” to securing a large settlement through the courts.

First, there’s a time limit on reporting an offence, covered by the two Limitation Acts of 1950 and 2010. The 1950 act allows a victim two years after becoming an adult to lodge a claim. Back then, you were considered an adult at 20, so you had until your 22nd birthday to make an allegation. Cooper says there are a couple of ways to evade that limit, but neither have been widely used with any success.

Survivor Robbie West took almost 30 years to claim compensation. That’s typical: worldwide, the average reporting time for church sexual abuse survivors is 22 years. Pat Cleary, a now-deceased survivor who didn’t disclose his abuse for over 40 years, once wrote: “Shame is the easy answer [for not coming forward]. Shame for everything, even for being me.”

Cooper, who has 30 years’ experience handling institutional sexual abuse claims and was an expert witness at the Royal Commission, describes the Limitation acts as a “tool to silence survivors and deny their claims, and then say ‘we’ve been so good giving you this paltry sum of money for all these horrendous things we did to you’.”

The church isn’t obliged to lean on the Limitation Act, Cooper explains. It could simply declare it wouldn’t use that defence and instead fight any case on its merits.

“We are challenging people now – with the shift to a survivor-based focus, is it appropriate for you to rely on a defence that’s based on your choice?” she says. “Why should you be relying on these legal defences that allow you to pay a pittance?”

Australian survivor and barrister James Miller mounted the same argument in his book The Priests, calling it “a problem that could easily be fixed” with political courage and the church’s goodwill.

The Brothers’ Peter Horide accepted they had relied on the Limitation Acts, but said he didn’t have the “legal background” to comment.

Cooper hopes the Royal Commission will recommend changes to the Limitation Act; without a time bar she would have “hundreds” of cases ready to file. Removing the bar has happened in most Australian states, Scotland, and about half of US states, despite a $10m legal campaign by New York bishops to retain a five-year limit.

The next barrier is the Accident Compensation Corporation, which provides funded counselling and small disability payments to sexual abuse survivors – like Robbie. New Zealand’s universal ACC coverage means it’s almost impossible for survivors to mount claims for exemplary damages against an abuser, or for vicarious liability by their employer – even in cases where, for example, a known abuser was shifted to another location and allowed to keep offending.

The Marists are well aware of all these defences. In response to one claimant in 2018, Marist Brothers lawyer Robert Burnes raised ACC as a “legal barrier” and added that “we cannot see how” the Limitation Act could be overcome.

He also denied vicarious liability on the grounds that the particular abuse happened in the victim’s home, when the Brothers were effectively off-duty. A similar defence was used by the Marist Fathers way back in 1979 to deny liability for serial paedophile Alan Woodcock because he was off-duty when he abused a boy in his Marist-provided home.

Every Marist settlement seen by Stuff has included a clause saying the payment is voluntary, and the Marists have advice any legal claims would fail. That gives them huge leverage. A 2022 Marist Brothers settlement says they have legal advice “which would indicate the Order may have no legal responsibility in respect of the claims made… for compensation or damages.”

The absence of employer liability appears to have shaped the language they use. Both Marist groups are careful never to use the word compensation – except to point out that they don’t pay compensation.

At the Royal Commission, the Brothers’ Peter Horide said: “What we are trying to achieve here is to offer a token, a symbol, that we regret what harm has been done. We are not offering compensation, and we don’t use that language.” The word, he said, would introduce an “obligation to set right that harm [caused by abuse]” – and they wanted to avoid that obligation. This year, he wrote to one survivor’s family saying they didn’t “favour the language of compensation”. He repeated that statement to Stuff.

He said a Royal Commission report on redress was due and “didn’t want to queer the pitch” by talking in detail. “I know where your questions are coming from. You’ve got headline-grabbing, large amounts as compensation [from overseas] where the environment might be different… we find it difficult to make that comparison.”

Likewise, the Marist Fathers’ then-leader Phil Cody wrote to a survivor in 2005 saying the order did “not make, and has never made compensation payments in respect of sexual abuse, but they do make ex-gratia gifts…”

It’s a consistent theme. “They were very clear that this was a gift, not a payment,” says Sarah Jones*, offered $10,000 by the Marist Brothers for seven years of abuse from the age of four by Brother Bede Francis Fitton. “I felt like I was being put in my place, and should be happy with what I got.”

Crying poor

There’s one more tool that the New Zealand church has used when explaining why its payouts are so low: it cries poor.

When survivor John Wilson* wrote to the Brothers’ Peter Horide rejecting a $20,000 settlement, and pointing out that as a trustee Horide had just signed off accounts showing equity of $167m, Horide told him that was an “over-simplified narrative”.

John says when Horide visited him at home, he was told how the Brothers lived off donations. Then John looked at their accounts: “Don’t sit here and give me a sob story when you’re actually doing well. I am still in a rental home at 53 [years old], and you’re in a million-dollar home and don’t have to worry about your rent.”

In 2018, when Marists Brothers lawyer Robert Burnes wrote to one abuse survivor offering a $5,000 settlement, he said that his client was “a Charitable Trust. It does not have extensive wealth and is to a degree constrained as to how funds within its control are expended.”

In 2002, the Marist Fathers’ discussion of compensation limits talked of “protection of assets sufficient to provide” for the Fathers. Asked about it at the Royal Commission, their leader, Tim Duckworth, explained they needed enough money to carry on their ministry and ensure they didn’t “have to say to everybody, ‘sorry, there’s no money for food from now on’.”

Stuff estimates the two Marist organisations’ combined worth is about $400m.

• The Brothers have $10m cash in the bank and $19.8m in an investment portfolio with Hobson Wealth Partners. Their school assets are valued at $97m. Their remaining property is valued at $6.94m, but their CV value is more like $21m. Pies and soft drinks are good business for them – in their last accounts, their school tuck shops alone returned a profit of $313,517. The Brothers recorded revenue of $12.66m in 2019, for an annual profit of $2.62m.
• The Fathers have $14.8m in cash and term deposits, and assets listed at $32.46m. They sold $17m of wine from their Mission Estate vineyard (where a premium ticket for their annual Mission Estate concert, featuring artists such as Elton John and the Beach Boys, goes for $652). The vineyard and surrounding property is worth $28m alone. They also own a 6.5ha forest, the $11.6m Cable Station in Marlborough and 31 properties in Auckland, Wellington and Whangārei with a combined CV of $133.53m. They also sold 207ha of farmland last year for a major residential development.

The ranks of both Brothers and Fathers are thinning. Just 104 Fathers and 55 Brothers – 159 in total – remain to share this vast wealth.

Peter Horide said it was above his paygrade to discuss the Brothers’ assets, adding: “We are not oblivious to what you are talking about,” referring to using their assets to increase payouts.

The Marist Fathers’ Duckworth, in a statement, said some of their assets were not realisable (in essence, saleable), their three schools were more “a liability than an asset” and the Fathers supported youth agencies, social services, parishes, and crisis outreaches.

Sarah Jones* asks a simple question: “Why don’t they take the property and sell it, and divide it among the victims?”

* Names marked with a star are pseudonyms.

This is Part 2. The remaining parts will be published in the coming weeks