Litigation

On 7 September, the ABC’s Four Corners aired an investigation into Christian Brothers, exposing what it called “aggressive legal strategies” used by the Catholic order to push back against victim-survivors fighting for compensation.

The investigation not only covered the controversial litigation tactics in Australia, but also similar strategies used in Ireland, and the re-traumatisation the order was subjecting victim-survivors to.

Christian Brothers was founded in 1802 in Ireland to provide for poor boys’ education and welfare. A group of Christian Brothers travelled to Australia in 1843, later establishing a permanent presence, and spreading to New Zealand, Papua New Guinea, the Philippines, and Timor-Leste.

When the Royal Commission into Institutional Responses to Child Sexual Abuse was published, it was estimated that 22 per cent of the Brothers were alleged perpetrators of sexual abuse. This figure was second to the Brothers of St John of God. Likewise, an entire case study in the Commission was dedicated to the experiences of men residing in Christian Brothers institutions.

Legal Dispute and Investigations

On June 22, Christian Brothers announced that it was facing a difficult financial situation and would sell off its remaining assets to victim-survivors of abuse, who would become creditors.

The order alleged the assets were valued at around $216 million, which would not cover the full amounts owed to victim-survivors. This scheme had to be approved by 50 per cent of creditors and meant many victim-survivors of abuse would receive a discounted compensation payment. The order also sought a stay on current and future civil proceedings.

However, reporting made public showed a slightly different story. In 2007, Christian Brothers created Edmund Rice Education Australia (‘EREA’) and transferred operation of schools to EREA. Then, from 2013, Christian Brothers began transferring school properties to EREA for free, or for as little as a dollar. Despite EREA valuing the assets at $891 million dollars in 2017, an expert told the ABC these properties may amount to a value of approximately $2 billion dollars.

EREA made a statement claiming to be a separate institution to Christian Brothers, but nevertheless, it was found that the Brothers could appoint and fire council members, decide remuneration and approve property sales. EREA’s funds could also be used to support retired Brothers.

The Brothers had asked EREA for $1.5 million dollars annually to subsidise the living expenses of members. According to EREA, they were unaware that some of these funds supported the living costs of 8 convicted paedophiles.

The Four Corners investigation points out that the Brothers’ asset transfers to EREA began to occur when the Royal Commission was announced. Coincidentally, the Royal Commission was the starting point for removing many of the legal barriers that existed for victim-survivors when bringing forward historical abuse claims.

One of these barriers was the ‘Ellis’ Defence, which the Catholic Church had previously used and prevented victim-survivors from suing unincorporated organisations. Legislation abolished the defence on 1 January 2019, alongside other sweeping recommendations such as removing the statute of limitations.

On 2 July 2026, 10 days after Christian Brothers announced its financial position, the New South Wales Supreme Court made orders imposing a moratorium with effect on that date. A timetable was also established for the following stages of the Scheme of Arrangements process. Koffels was of the view that the scheme should not be approved and was unfair to clients because of its construction. If the properties transferred to EREA were brought back into the pool, it seemed that there were adequate funds to pay all claims.

Finally, on 24 July 2026, the Trustees of Christian Brothers entered into a Memorandum of Understanding with the Trustees of EREA. Subject to approval by the Court and creditors, EREA will consent to being the nominated defendant in Christian Brothers abuse claims. This means EREA would be responsible for management and defence of claims and liable for settlements and judgments.

The same Four Corners investigation revealed that EREA’s own trustees are now weighing a more permanent separation from the order. Asked why EREA had not sought Rome’s approval to break away entirely, Trustees Chair Stephen Brown told the ABC that the organisation was now discussing its future governance, describing it as a “seminal moment” for EREA, and indicating that over the next 12 to 18 months, the Christian Brothers’ presence in Australia’s schools would be “out of the way or removed.”

The International Picture

The ABC’s investigation found that Australia was not the only country where Christian Brothers had complicated historical abuse litigation.

In Ireland, the congregation opted to not nominate a defendant for the purposes of litigation where the litigants are seeking damages for historical sexual abuse. Therefore, victim-survivors must sue all members of the congregation at the time of the abuse to progress their case.

Solicitor Philip Treacy told the ABC that Christian Brothers is the only Catholic order that interprets this law so literally, and that their choice not to put forward a defendant is a strategy.

According to court filings, there are at least 50 of these cases in the High Court of Ireland.

Current and Future Claims

The Royal Commission revealed that despite the prevalence of institutional child sexual abuse, institutional responses were overwhelmingly inadequate. Catholic orders were found to ignore or punish victim-survivors who reported abuse and were reluctant to remove perpetrators, which led to successive reoffending. Some perpetrators were only moved to different positions or schools, where they continued to offend. This revelation was alleged to have occurred in Christian Brothers schools, meaning the order likely failed to prevent further abuse.

Koffels continues to represent victim-survivors of institutional child sexual abuse. This includes victim-survivors of abuse in Christian Brothers institutions.

While developments over the past few months have likely delayed compensation processes, the Memorandum of Understanding is a significant positive step in ensuring current and future claimants can pursue compensation. Similarly, the Trustees of EREA told Four Corners that they are fast-tracking finance for victim-survivors with approved claims.

If you have any questions, please contact our team.