Campbell v The King

Children and Communities Services Act 2004 (WA), s 101

Criminal Injuries Compensation Act 2003 (WA)

Application (as amended) be remitted to Office of Criminal Injuries Compensation to determine quantum of compensation

Mr C Economidis appeared on behalf of the Chief Executive Officer of the Department of Justice

C [2021] WACIC 20

Campbell v The King [2023] NSWCCA 258

Gullelo v Halloran [2008] WADC 145

Guy v Hampson [2019] WADC 19

Hawke v The State of Western Australia [2017] WASCA 40

KMM v SG [2023] WADC 136

Lloyd v Small (1996) 16 SR (WA) 111

Martin v Martin [2015] WADC 138

Re CJR [2023] WADC 111

Re Coad [2023] WADC 9

Re McHenry [2014] WADC 92

Re TLJ [2016] WADC 74

Ward v Davey [2023] WADC 78

Zadeh [2015] WADC 136

1. The appellant appeals the refusal of her application for criminal injuries compensation for injury she suffered as a child allegedly as a result of the neglect and abuse of her mother, KR. The order refusing her application was made by Chief Assessor of the Criminal Injuries Compensation (chief assessor) on 16 August 2024. I will refer to the appellant and other members of her family by their initials on the basis that I made an order at the hearing of the appeal that it is in the interests of justice to make an order that prohibits the publication which is likely to identify the appellant pursuant to s 64 of the Criminal Injuries Compensation Act 2003 (WA) (which I sometimes refer to in these reasons as 'the Act').
2. MRF is the oldest child of KR. She has a younger brother, MR, and younger sister, DR. MRF was born in February 2000. On 23 November 2010, MRF and her siblings were taken into provisional protection and care by the Department of Communities (the department). She was then 10 years of age. She did not live with her mother again after this date.
3. After she was taken into care by the department, MRF lived with other family members, including her aunt, DW. She suffered abuse, neglect and deprivation after being taken into care by the department. The appellant has brought a separate application for criminal injuries compensation with respect to the conduct of DW and, as I understood it, against other family members who she lived with.
4. MRF's mother, KR, was never charged with any offence with respect to alleged neglect, physical and emotional abuse that MRF alleges occurred when she lived with her mother before November 2010. On 21 April 2022 the appellant made an application for criminal injuries compensation under the terms of the Act.
5. Unfortunately, the appellant's solicitors did not properly assist the appellant in presenting her claim to the chief assessor. The application alleged neglect and abuse by her mother in the years 2011 - 2015. That time period was wrong. During those years the appellant was in the care or control of other family members. She did not live with KR, nor was KR involved in her life at that time.
6. Before determining MRF's application for compensation the chief assessor raised various questions concerning the application with the appellant's solicitors, including the obvious difficulty that the application as formulated contained the wrong time period of alleged offending. The appellant's solicitors sought to deal with the chief assessor's questions by providing more than 500 pages of departmental records relating to the time that KR's children were in the care of the department but did not provide any analysis of those documents or answers to the chief assessor's questions. The chief assessor was not assisted by the appellant's solicitors in discerning the issues upon which a decision on the merits was required. The chief assessor refused the application because she was not satisfied that any alleged offence had occurred during the incorrect period nominated by the appellant's solicitors on the application being 2011 - 2015 when the appellant's mother, KR, did not have care (or custody) of MRF.
7. In my reconsideration of the matter under s 56 of the Act, including fresh evidence adduced for this appeal, I have reached a different view to the chief assessor. In reaching a different view, I have disregarded the shortcomings in the preparation of the appellant's application and have determined that this is an appropriate case to allow the appellant to amend her application for compensation, grant leave for her to bring the application out of time and I have reached the conclusion that an 'alleged offence' has occurred within the meaning of the Act. On the materials before me there is insufficient evidence for me to assess the quantum of compensation.
8. Accordingly, I have determined that the appropriate order is to remit the appellant's application to the Office of Criminal Injuries Compensation, for an assessor to determine the amount of compensation payable to MRF for the 'alleged offence' I have found to have been committed by KR, in accordance with these reasons.

1. Section 55 of the Act gives a right of appeal to this court against an assessor's decision to refuse to make a compensation award. On an appeal, the court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision (s 56(1) of the Act).
2. The entirety of the evidence must be reconsidered independently of the chief assessor's decision.[1] The appeal is to be heard 'de novo' meaning a fresh hearing where the matter is heard again from the beginning and not confined to the materials presented in the original hearing before the assessor. Further, it is not necessary for the court to determine an error on the part of the chief assessor.[2]
3. On a compensation application by a person who suffers injury as a consequence of the commission of an offence (ie a victim), the court may award such compensation that the court is satisfied is just for the injury and for any loss also suffered (s 30(1) of the Act). The court must be satisfied, on the balance of probabilities, of: the commission of an offence; injury to the victim as a consequence of the offence; and compensable injury and loss to the victim. The court is not bound by the rules of evidence when determining the application (s 18(2) of the Act).[3]
4. 'Injury' means 'bodily harm, mental and nervous shock or pregnancy' (s 3 of the Act). 'Bodily harm' is not defined in the Act. However, where used in other statutes and not defined, the phrase has been taken to mean 'any hurt or injury calculated to interfere with the health or comfort of the victim; it need not be permanent, but must be more than merely transient or trifling'.[4]
5. 'Mental and nervous shock' is not defined in the Act. The phrase refers to mental or emotional harm as distinct from physical injury or bodily harm. To sustain a claim for compensation for mental and nervous shock, there must be an injury in the legal sense, not merely a transient emotional reaction. The injury must be of a more enduring character.[5]
6. The injury will usually be inferred from expert evidence of a recognised psychiatric condition. However, an injury to mental health may also be inferred from any relevant evidence. Courts have found mental and nervous shock where there is evidence of enduring emotional harm such as a grave emotional effect of traumatic origin, an adverse effect on all areas of the victim's life, behaviours commonly identified in trauma victims, or evidence of a depressed psychological state.[6]

1. Where a person suffers injury as a consequence of the commission of an offence, the person may apply for compensation for that injury and any loss suffered as a consequence of the injury.[7] In this respect, compensation is capable of being awarded if an applicant establishes on the balance of probabilities that a specific act was committed against the applicant which would qualify as a crime, misdemeanour or simple offence if the perpetrator had been convicted and which caused injury to the applicant.[8]
2. The standard of proof when considering whether an alleged offence was committed is the civil standard - the balance of probabilities. The court must be satisfied that an alleged offence occurred in the manner described by the applicant for compensation which resulted in an injury to the applicant and, further, it must be more probable than not that the alleged offending occurred.[9]
3. Plainly, it is a serious matter to find that an alleged offender has committed a criminal offence. The court must exercise caution in assessing whether an offence has been committed. The evidence must survive careful scrutiny and must be precise and not loose or inexact.[10] The court must feel an actual persuasion that the offence alleged actually occurred. While corroboration is not essential, the relevant question is whether the court is satisfied that the appellant has proven his or her claim on the balance of probabilities, having regard to the seriousness of the allegation and the apparent credibility, accuracy and reliability of the applicant's evidence.[11]

1. In deciding whether to make a compensation award or the amount of a compensation award, the court may have regard to any factors or circumstances that the court thinks are relevant (s 29 of the Act).
2. The assessment of compensation for injuries involves the application of the ordinary principles for the assessment of damages. Compensation must be fair and reasonable for the injuries received and disabilities caused, having regard to current general ideas of fairness and moderation. Compensation may be awarded for pain and suffering, including grief, anxiety, distress and disappointment. Compensation may also be awarded for loss of amenities of life and loss of enjoyment of life, including loss resulting from deprivation of the ability to participate in normal activities and to take full advantage of opportunities that life might otherwise offer. The amount of compensation must be proportionate to the particular circumstances of the applicant.[12]

1. In my reconsideration of the matter, I have independently reviewed the evidence, including fresh evidence adduced for this appeal, which I refer to in the next paragraphs.
2. I have not had any regard to the merits of the decision of the chief assessor and have only considered the chief assessor's decision so as to give context to the submissions made by the parties in the appeal.[13]
3. For the purposes of this appeal, I have considered a number of documents which I detail in the next paragraph. As I will turn to, the issues which must be decided in this appeal area as follows:
   1. Should I grant leave to MRF to amend her application for criminal injuries compensation?
   2. If so, should I extend the time within which an application should be permitted to be considered (or brought)?
   3. Did any 'alleged offence' within the meaning of the Act occur during the date range as contended by the appellant in which the appellant suffered an injury?
   4. If the court is satisfied that the appellant suffered injury from an alleged offence within the meaning of the Act, what amount of compensation should be awarded in respect of the alleged offence?

Materials considered for the purposes of the appeal

1. The appellant relied upon a Book of Documents which included:

(a) an affidavit of the appellant sworn 17 February 2025, detailing factual matters relating to the alleged offences;

(b) records obtained from the Department of Education;

(c) a psychologist report obtained from the Department of Child Protection; and

1. The Chief Executive Officer of the Department of Justice, as amicus curiae, filed and relied upon a Book of Assessor's Papers comprising the refusal order, MRF's application including her statement and statement of effects and various correspondence between the assessor and the appellant's solicitors, medical records including a report of a clinical psychologist, Mr Bernard Hughes and various police and criminal histories relating to the appellant's mother.
2. The Chief Executive Officer also filed a Book of Documents consisting of departmental records (comprising in excess of 600 pages) which were before the chief assessor but were not included in the Book of Assessor's papers and helpfully provided detailed submissions.

1. Under s 9(1) of the Act, an application for compensation may be made within three years after the date on which the offence was committed. An assessor, or the court, may allow an application for compensation after the three-year period if 'it is just to do so'.
2. The relevant factors for determining whether it is just to extend time include:

(a) the history of and background to the proposed application;

(d) the prospects of the compensation application succeeding;

(e) the consequences for the parties of the grant or refusal of an extension of time, including the extent of any prejudice to the offender; and

(f) whether injustice will be suffered if an extension of time is refused.[14]

1. The appellant's application for compensation is more than 10 years out of time.
2. The overriding consideration under s 9(2) of the Act is whether it is 'just' to exercise the discretion to extend time.[15]
3. The appellant was aged approximately 20 when the application was brought. The delays in bringing the application prior to the applicant appellant attaining the age of 18 cannot be attributed to her conduct.
4. Subsequently to the appellant attaining the age of 18, I accept that she has had difficult personal circumstances including mental health issues. These difficult circumstances which prevented her from seeking legal advice are relevant to an extension of time. I consider that if the extension is not granted, the appellant will be denied compensation. Whilst that on its own does not justify granting an extension of time, the prospects of an applicant succeeding in a timely application would have been high. In all the circumstances, I consider leave should be granted to bring the application out of time.

1. The same issues which beset the appellant's application before the chief assessor were repeated in this appeal. Frankly, the appellant's solicitors did not assist her by preparing in any cogent form an outline of what alleged offences occurred within the period of the application. After the first day of hearing, I granted leave for the appellant's solicitors to identify to file and serve a schedule that included the following information:

(a) an identification of each alleged offence committed by the appellant's mother including the date or a date range for ongoing offences, a description of the offence and the relevant sections of any applicable legislation which prohibited the offence; and

(b) for each alleged offence which the appellant seeks a compensation award, particulars of what facts are relied upon to give rise to the alleged offence including references to page numbers in the assessor's book of records, the appellant's book of records, the appellant's affidavit or the respondent's book of records, book of documents filed for the appeal.

1. The appellant's solicitors purported to comply with this order by setting out a schedule which referred to nine alleged incidents comprising alleged offences contrary to the following legislation:

(a) Children and Community Services Act 2004 (WA) (CCSA**)**, s 28 and s 101, being a person in control of a child engaging in conduct knowing (or being reckless in the knowledge) that the conduct may result in the child suffering harm;

(b) Criminal Code (WA), s 313, common assault; and

(c) Road Traffic Act 1974 (WA), s 49, driving without legal authority.

1. During the second day of this appeal hearing, I made an order granting the appellant leave to amend her application for criminal injuries compensation to refer to the incidents in this table below.

KR left the appellant and her brother at their great grandmother's home in Narrogin. KR did not tell her children she was leaving them. The appellant later found out KR had gone to Perth with her boyfriend.[16]

Section 28(2)(c)(v) and s 101(1)(v) of the CCSA.[17]

KR, the appellant's brother, the appellant's sister and the appellant stayed at the appellant's uncle's home sometime in 2008. One day whilst she and her siblings were cleaning the bedroom, KR asked the appellant to look for the dustpan and brush under the bed. When she was unable to find the items, KR threw a woman's boot with a heel at the appellant with enough force to bruise her leg while she was still trying to crawl out from under the bed.[18]

Section 313 of the Criminal Code and s 28(2)(c)(i) and s 101(1)(i) of the CCSA.

Around the same time as incident 2, KR was angry at the appellant and punched the appellant in the nose, causing her to cry. KR said it was an accident and that she was supposed to stop a few centimetres away from her nose.[19]

Section 313 of the Criminal Code and s 28(2)(c)(i) and s 101(1)(i) of the CCSA.

KR did not assist her children, aged 8 (appellant) and 6 to get ready for school in the morning. She also did not provide them with lunch and told the children to 'drink water from the tap to fill' their 'guts up' or 'get something to eat from the teachers'. The appellant states she cried when she saw the other kids eat while she starved.[20]

KR would take the appellant to her brother to the store to buy or steal spray paint cans with the purpose of getting high off the fumes. KR would also walk the children around with her in the early hours of the morning while she drank alcohol with family and friends. The appellant remarks that it was cold and had no jumper or shoes when this occurred.[21]

KR drove without a licence and the appellant submits she was driving 'recklessly' (not in a legal sense). One time KR was driving in an overloaded car while in a police chase in Narrogin. The appellant was sitting on the floor just behind the centre console/glovebox when KR smashed into a tree, causing the appellant to collide with the console, leaving her chest sore and bruised. The appellant believes KR was forcefully taken out of the car and may have been kept in custody that night as she remembers leaving with her uncle.[22]

Section 28(d)(i) and s 101(1)(v) of the CCSA; and s 49(1) of the Road Traffic Act 1974.[23]

Sometimes KR kept her children at home from school because they had no lunch. One of these times, KR told the children to go take a bath together. KR got them out of the bath but thought that the children had been inappropriate with each other, despite it not being the case. As a result, KR flogged the appellant and her brother on the back of their legs and backs with an 'egg flip' (spatula?).[24]

Section 313 of the Criminal Code; and s 28(c)(i) and s 101(1) of the CCSA.

An incident occurring on 20 October 2019, where a witness allegedly saw KR chasing her children down the street while threatening them.[25]

At the same time as incident 8, KR observed to have a number of minor injuries including a split and swollen lip, bruises and grazes. Sustained in a fight between her and her partner at the time. Seems like children were present during the fight.[26]

Section 28(2)(c)(iii)[27] and s 101(1) of the CCSA.

Did an 'alleged offence', being the second altercation, within the meaning of the Criminal Injuries Compensation Act, occur in which the appellant suffered injury?

1. The appellant contended that alleged offences occurred by KR contravening s 101 of the CCSA or by committing the offence of assault within the meaning of the Criminal Code. In the next paragraphs I consider the appellant's allegations and assess whether an alleged offence (or offences) were committed. In doing so I have applied the principles outlined at [15] - [17] above.

(1) A person who has the care or control of a child and who engages in conduct -

(a) knowing that the conduct may result in the child suffering harm as a result of any one or more of the following -

(iii) emotional abuse as defined in section 28(1); or

(b) reckless as to whether the conduct may have that result,

is guilty of a crime, and is liable to imprisonment for 10 years.

harm has the meaning given to that term in section 28(1).

1. The terms 'emotional abuse', 'harm', and 'neglect' are defined in s 28 of the CCSA as follows:

(a) psychological abuse; and

(b) being exposed to family violence;

harm, in relation to a child, means any detrimental effect of a significant nature on the child's wellbeing, whether caused by -

(a) a single act, omission or circumstance; or

(b) a series or combination of acts, omissions or circumstances;

neglect includes failure by a child's parents to provide, arrange, or allow the provision of -

(a) adequate care for the child; or

(b) effective medical, therapeutic or remedial treatment for the child.

1. The elements of an offence under s 101 of the CCSA are accordingly as follows:
   1. The alleged offender had the care or control of a child.
   2. The alleged offender:

(c) knew that a relevant act or omission in element 2 may result in the child suffering harm, or, was reckless as to whether a relevant act or omission in element 2 may result in the child suffering harm.

1. With respect to the nine alleged incidents set out in the appellant's submissions and which I allowed an amendment of the appellant's application for compensation, the departmental records attribute the following conduct to the appellant's mother:
   1. On 2 April 2009 the department received a report from a member of the public who said they witnessed a woman walking with three children, the woman became 'suddenly very angry' and began hitting the eldest girl around the head and upper body, and kicked the boy 'viciously' in the stomach. The mother was identified as the alleged offender, KR, and the children as the appellant and the appellant's siblings. The department's investigation of this concluded insufficient information to proceed with the report. There was a recommendation that the case be closed.
   2. In December 2013, in support of a special guardianship order, the appellant's case worker deposed to the appellant and the appellant's siblings coming into departmental care due to, amongst other things, KR's use of excessive physical discipline on the children.
   3. Several departmental documents record that KR became capriciously agitated and aggressive during their interactions with her.
   4. In a report accompanying the two-year limited protection order application, the reunification plan for KR required her to demonstrate a commitment to, amongst other things, addressing her anger issues.
   5. In 2003, the department substantiated the neglect of the appellant and her brother by the alleged offender, due to KR's lack of supervision of the children and inadequate supply of clothing and food.
   6. On 14 March 2003, the Western Australia Police Force referred an incident to the department concerning the neglect of the appellant and her brother.
   7. In response to the report of physical punishment made on 2 April 2009, an 'Action and Outcome Report & Guidelines' dated 12 May 2009 was drafted and endorsed by the department. The document noted that 'the boy [was] thin and small', presumably, referring to the appellant's brother. The report notes occasions where the alleged offender 'acknowledged keeping the children home because she had no food to send them to school with', together with the appellant having nits and the alleged offender not having the money to treat them.
   8. The appellant's great aunt advised the department that when the children were first placed with her, they had difficulty remembering basic things like brushing their hair and teeth.
   9. On 13 December 2011, orders were made for the Chief Executive Officer of the department to have parental responsibility for the appellant for two years on the basis that the appellant was a child in need of protection pursuant to s 28(2)(c)(i), s 28(2)(c)(iii) and s 28(2)(c)(v) of the CCSA.
   10. In 2005, the department substantiated emotional abuse of the appellant and her brother by KR following her arrest for disorderly conduct on 28 November 2005. KR was abusive and aggressive towards police officers and was assessed to be drug-affected as a result of sniffing paint, which was evident on her hands and neck. The appellant and her brother were with their mother throughout this incident and appeared to be distressed.
   11. On 24 November 2010, one day after the appellant was taken into departmental care, and approximately 34 days after being taken out of KR's care, the department recorded a cost of $600 for clothing 'for the children'.
   12. On 25 November 2010, KR was observed sniffing solvents.
   13. On several occasions when KR attended the department's offices, she appeared to be under the influence of substances. Other departmental records state the alleged offender is a known substance user, including sniffing paint and fumes.
   14. In December 2013, in support of a special guardianship order, the appellant's departmental case worker deposed to the appellant and her siblings coming into departmental care due to, amongst other things, the alleged offender's drug and solvent abuse.
2. I now turn to the appellant's schedule which identifies nine alleged incidents which are relied upon to constitute 'alleged offences' within the meaning of the Act and which occurred in the date range from 1 January 2007 - 20 October 2010. I will address each of the alleged incidents from first to ninth by reference to the appellant's schedule.

First alleged incident - leaving appellant and her brother - alleged neglect

1. The appellant's submission is that the first alleged incident occurred in the calendar year 2007. At that time the appellant was 6 or 7 years old. Reference is made to a statement submitted for the assessor at pars 56 - 62. In effect, these paragraphs say that the appellant's mother left her and her brother at their great grandmother's house, did not say that she was leaving or where she was going and when she asked where her mother was, she was told her mother had left with her boyfriend. It is not clear from the statement whether the appellant was looked after by another family member but given that she was left at her great grandmother's house I infer that other family members looked after her.
2. Turning to the contemporaneous evidence that departmental records make reference to the alleged offender's children frequently spending time in the care of others. There is also references in the notes, for example, around November 2010 that the alleged offender told departmental officials that she 'returned after being away for [9] weeks'.
3. The evidence suggests that the appellant's mother at times left her children, including the appellant, in the care of family members. However it is difficult to make any findings about the frequency KR did that and the length of time KR left her children with other family members.
4. To the extent that the alleged offender left the appellant in the care of others, a question arises of whether doing that constitutes an offence against s 101(1) of the CCSA. A question arises of whether leaving the appellant as a child in the care of adult family members could constitute an offence.
5. In all the circumstances, I am not satisfied on the balance of probabilities that an alleged offence occurred with respect to the first incident as described by the appellant for the following reasons. First, while the evidence establishes that the appellant's mother periodically left her children in the care of family members (including the great grandmother), there is insufficient evidence about the frequency, duration, and circumstances of these absences to determine whether they constituted a failure to provide adequate care. Secondly, the evidence suggests that when the mother left the children, they were placed with family members who apparently provided care for them. The offence under s 101 requires proof that the mother's conduct (in this case, omitting to provide care) was done knowing it may result in harm to the child, or being reckless as to that result. The evidence does not establish that leaving the children with family members met this threshold. Thirdly, while there is a reference to the mother being away for nine weeks in November 2010, this occurred after the children were taken into departmental care, and the context and circumstances of this absence are unclear. For these reasons, I am not satisfied that this incident constitutes an alleged offence within the meaning of the Act.

Second alleged incident - boot thrown at appellant

1. The second alleged incident occurred on a date unknown in the calendar year 2008 when the appellant was 8 years of age. The appellant says the alleged incident occurred when she, her brother, sister and mother were staying at her uncle's house.[28]
2. With respect to the alleged incident, the appellant says her mother threw a woman's boot with a heel at her which struck her and caused bruising. If these facts are accepted that offending would constitute a contravention of s 101(1) of the CCSA being harm resulting from physical abuse or assault under s 313(1) of the Criminal Code.
3. The evidence of the appellant, taken together with the departmental records I have referred to, shows for want of a better description, a propensity on the part of the appellant's mother, KR, to engage in excessive physical discipline of her children when she is angry.
4. While I have some difficulty with the potential date of this incident, I consider the description of the events by the appellant in her statement to be sufficiently cogent to accept on her version on the balance of probabilities, given the history of KR and that she was a woman who was prone to anger bursts and would act physically upon such anger bursts. Accordingly, I conclude that the second alleged incident took place as alleged at item 2 of the table, constituting the amended application.

1. The third alleged incident occurred in the calendar year 2008 in circumstances in which the appellant says her mother was angry at her for some unknown reason and punched her in the nose which caused her to cry and her eyes to water. In the statement to the assessor the appellant says that her mother said it was an accident, and she was supposed to 'baulk' the appellant.
2. Again, there is no independent evidence directly corroborating the alleged incident described by the appellant, but the evidence of what I have described as a tendency or propensity on the part of the alleged offender is relevant. The appellant also refers to this incident in pars 38 - 40 of her affidavit. Based on the appellant's affidavit, including her account of her mother's conduct when pretending to hit her but intending to stop centimetres from her nose, I am satisfied on the balance of probabilities that the events comprising the third alleged offence occurred. Further, KR punching the appellant would constitute either an assault or an act of physical abuse causing harm to the appellant contrary to s 101 of the CCSA.
3. While mention at the time was seemingly made by KR of pretending to hit the appellant but intending to stop centimetres from her nose, it does not appear to me that any issue of accident under s 23B of the Criminal Code would arise from the facts given the actual punching by KR of her daughter's nose. Specifically, any prosecution of KR for an alleged offence in this respect would seemingly be able to proceed with comfortable satisfaction that the striking was not an accident because the injury to MRF caused by the act of KR was, in my opinion, foreseen by KR as a possible outcome, or moreover would reasonably have been foreseen by an ordinary person in the same position as KR.[29]

Fourth alleged incident - failure to provide food

1. The appellant contends the fourth alleged incident occurred in the calendar year 2008. Specifically, KR did not provide the appellant with breakfast or lunch on school days. It appears to have been an ongoing state of affairs that KR would not provide sufficient food to her children. According to the appellant's statement to the assessor her mother told the appellant 'to drink water from the tap to fill your guts up' or 'get something to eat from the teachers'. This version is also set out in the appellant's affidavit at pars 48 - 51 where reference is made to comparable incidents.
2. There is no independent evidence directly corroborating the incident in the date period, but other evidence is relevant and informs the issue.
3. Specifically, some of the departmental records substantiate KR's neglect of the appellant and her brother with respect to not providing food. In this respect, I note that a document entitled 'Action and Outcome Report and Guidelines' dated 12 May 2009 was drafted and endorsed by the department which noted specifically that KR acknowledged keeping the children home because she had no food to send them to school with.
4. This evidence corroborates the appellant's contentions for the fourth alleged incident that she went without food on occasions. I am satisfied that an offence premised on harm resulting from neglect is made out given that neglect includes a failure to provide adequate care for the child.[30] I accept the evidence of the appellant that she and her brother never received breakfast at home from their mother during 2008 and seemingly regularly were not provided with food by their mother to take to school for lunch.

Fifth alleged incident - paint sniffing and walking in early hours

1. The fifth alleged incident occurred in the calendar year 2009 when the appellant was 9 years of age. The appellant contends, with respect to the fifth alleged incident, that her mother would buy or steal paint cans and walk around sniffing paint to induce a high. Further, on occasions the appellant would walk with her brother and mother until the early hours of the morning while her mother was paint sniffing or drinking alcohol and during which the appellant did not have adequate clothing, being no jumper or shoes, which caused her to be cold and suffer pain including to her feet from the ground. It is contended that this incident sets out facts whereby KR has engaged in conduct in contravention of s 101(1) of the CCSA causing harm resulting from neglect or psychological abuse.
2. The departmental records I have referred to appear to me to corroborate the appellant's version of the fifth alleged incident in that:
   1. In 2003 the department substantiated the neglect of the appellant and her brother by their mother due to their mother's lack of supervision and inadequate supply of clothing and food.
   2. In 2005 the department substantiated the emotional abuse of the appellant and her brother by their mother following their mother's arrest for disorderly conduct on 28 November 2005. The appellant's mother was abusive and aggressive towards police and was assessed to be drug affected as a result of sniffing paint and the appellant and her brother were with their mother throughout this incident and appeared to police to be distressed.
   3. On 24 November 2010, one day after the appellant was taken into departmental care and approximately 34 days after being taken out of her mother's care, the department recorded a cost of $600 for clothing for the children.
   4. On another occasion, on 25 November 2010, the appellant's mother was observed sniffing solvents.
   5. Departmental records state the appellant's mother is a known substance user including sniffing paint and being under the influence of substances.
   6. The department concluded in 2010 that the appellant and her siblings were at significant risk of further harm in the care of their mother due to her solvent abuse.
3. Later in 2013, in support of a guardianship order, the appellant's departmental case worker deposed to the appellant and her siblings coming into departmental care due to, amongst other things, her mother's drug and solvent abuse.[31]
4. I am satisfied on the balance of probabilities that the appellant's version of this incident and an alleged offence occurred and that the conduct of the appellant's mother constitutes an offence under s 101(1) of the CCSA. Further, harm resulted to the appellant from the neglect of her mother including a failure to provide, arrange or allow the provision of adequate care for the child within the meaning of the definition of neglect contrary to s 28 of the CCSA. I am also satisfied that the appellant's mother engaged in conduct that could (or may) result in the appellant suffering harm as a result of neglect and/or psychological abuse. I consider that the appellant's mother knew that her conduct may result in the appellant suffering harm as a result of neglect or psychological abuse or was reckless as to whether it may have that result.

Sixth alleged incident - motor vehicle incident

1. The sixth alleged incident occurred in the calendar year 2009 and the facts placed before the court by the appellant involve an occasion when her mother drove her car overloaded and was involved in a police chase in Narrogin. The appellant was sitting on the floor behind the glove box and her mother drove into a tree resulting in her chest colliding with the glove box causing a sore chest and bruising. After the incident she was taken out of the car and placed into custody.
2. The alleged offender had 18 previous convictions for no authority to drive and previous convictions for driving at excessive speeds, one in 2003 (10 - 19 kms over the limit) and a conviction in 2004 for driving by 20 - 29 kms over limit. She also has convictions for dangerous driving causing bodily harm in 2004, careless driving in 2007 and two convictions for failing to stop when called upon in 2004.
3. Having said that, notwithstanding the detailed criminal history, there is nothing in the criminal history which establishes the alleged offender was in a police chase and crashed her vehicle following which she was taken into custody. There is nothing in the criminal history which corroborates the alleged incident. I also note that s 37(3) of the Act provides:

An assessor must not make a compensation award in favour of -

(aa) an injured victim in respect of an injury or loss suffered by the victim ...

as a consequence of the commission of an incident if the assessor is satisfied that the injury was caused directly by, or by the driving or other use, of a motor vehicle unless -

(a) the motor vehicle was used for the purpose of committing the incident; and

1. Upon considering the surrounding evidence, I am not satisfied that an alleged offence in the terms expressed for the sixth alleged incident occurred.

Seventh alleged incident - flogging with egg flip

1. The appellant submits the seventh alleged incident occurred in the calendar year 2009. In effect, the allegation is that the appellant's mother 'flogged' the appellant and her brother with an egg flip hitting them multiple times on their legs and backs. As with the categorisation of the earlier incidents, I accept that the events could be accepted as constituting offences under s 101(1) of the CCSA and s 313 of the Criminal Code. The contravention of s 101(1) of the CCSA would be properly categorised as harm resulting from physical abuse.
2. Taken together with the second and third alleged incidents, I am satisfied that the facts occurred given the evidence of the surrounding circumstances. Specifically, the departmental records I have referred to of KR hitting her 'eldest girl', which I find to be the appellant in the head and kicking the boy viciously in the stomach. Further, the departmental records of the appellant's departmental case worker deposing to her coming into care due to, amongst other things, her mother's use of excessive physical discipline on the children and her anger management issues.

Eighth alleged incident - chasing children while on drugs

1. The eighth alleged incident allegedly occurred on 1 October 2010 when the appellant was 10 years of age. There is evidence corroborating an alleged incident on this date.[32] The departmental records disclose the following:
   1. On 20 October 2010 at 5.00 pm police were informed that the appellant's mother was chasing her children down the road threatening kids and appeared to be on drugs.
   2. Police were dispatched and arrived less than 10 minutes later and the appellant's mother was then engaged in an altercation with a male and both individuals were handcuffed at the scene.
   3. The appellant's mother was found in possession of drugs and was heavily intoxicated.
   4. Police conducted a welfare check on the appellant and her siblings who were in the care of her uncle.
2. I am satisfied on the basis of the corroborating evidence that the incident occurred in the terms alleged and that an alleged offence contrary to s 101(1) of the CCSA occurred being harm resulting from psychological abuse.

Ninth alleged incident - altercation in presence of children

1. The ninth alleged incident allegedly occurred within minutes of the eighth alleged incident. Namely, the appellant's mother was found in possession of drugs and she was convicted of possessing cannabis at a later court hearing. There is limited evidence of whether the appellant witnessed the alleged incident because her mother was chasing her down the road at 5.03 pm, her mother was then seen in an altercation five minutes later at 5.08 pm - 5.11 pm and then police immediately attended the home address and confirmed the welfare of the children.
2. Taking together all of the evidence, I am not satisfied that the ninth alleged incident occurred, in that the appellant witnessed an incident of her mother being in an altercation with another person.

1. I find on the balance of probabilities that the alleged incidents described by the appellant and referred to in these reasons as the second alleged incident (boot thrown causing bruising), the third alleged incident (punch to the nose), the fourth alleged incident (failure to provide food), the fifth alleged incident (paint sniffing and walking in early hours), the seventh alleged incident (flogging with egg flip) and the eighth alleged incident (chasing children while on drugs) occurred in the way described by the appellant.
2. In a decision of an assessor of criminal injuries compensation in the case of C,[33] Assessor Hafford undertook a comprehensive review of the provisions of the CCSA and the Child Welfare Act 1947 (WA), which applied prior to the CCSA being enacted, and a number of authorities that considered that legislation.
3. An observation made by the assessor, with which I respectfully agree, is that an offence under s 101 of the CCSA (and its equivalent provision in the Child Welfare Act) refers to a continuum of behaviours constituting a single offence. This is because those offences can be established by one act of behaviour or several acts of behaviour. In that respect, it was noted that s 28(1) of the CCSA defines harm as any detrimental effect of a significant nature on the child's wellbeing, whether caused by a single act, omission or circumstance or a series or combinations of acts, omissions or circumstances.
4. While I consider the events with respect to the six incidents I have identified may well be argued to constitute distinct alleged offences (such as assault for second, third alleged and seventh alleged incidents) properly construed, they form part of a pattern of neglect and conduct constituting a single offence under s 101 of the CCSA.
5. With respect to the five distinct incidents I have found occurred in the way described by the appellant, I consider an 'alleged offence' was committed by KR contrary to s 101 of the CCSA, and, in this respect, I am satisfied of the following matters on the balance of probabilities:
   1. For each incident that I have identified, KR, being the alleged offender, had the care and control of the appellant. The appellant was a child.
   2. On each occasion, KR committed either physical abuse, emotional abuse, or neglect as defined in s 28(1) of the CCSA.
   3. KR was reckless as to whether the act or omission in question might result in the appellant suffering harm as a result of the neglect, physical abuse, or emotional abuse or, KR knew that the act or omission in each case would result in the appellant suffering harm.

1. MRF went into department care on 23 November 2010.[34] It appears immediately before going into care, MRF and her siblings were being looked after by their maternal grandmother, OW in Harvey.[35] The department found that OW did not have the capacity to protect the children from KR.[36] MRF and her siblings moved to the care of their paternal aunt, DW on 23 November 2010.[37]
2. On 21 January 2014, a special guardianship order was made ordering that DW have parental responsibility for MRF until she reached 18 years of age.[38]
3. On 26 February 2015, a child protection worker was notified of concerns of the use of physical discipline by DW.[39] There was also evidence that MRF's brother, MR had also been subject to the use of inappropriate physical discipline when he was in DW's care between November 2011 and March 2013. The department conducted a Safety and Wellbeing Assessment to investigate the allegations and ongoing risk of harm in relation to MRF and her siblings who had resided with DW.
4. On 13 March 2015, an email sent by a team leader of the Child Centred Family Support Team at the Department for Child Protection, revealed that MRF had not been living with DW since 13 January 2015 and had instead self-selected to live with her maternal grandmother, OW.[40] This was due to concerns with her living arrangement with DW and concerns for her siblings.

1. The appellant, for the purposes of her application before the chief assessor, relied on a report of Mr Bernard Hughes, a clinical psychologist, dated 16 June 2022.
2. Mr Hughes diagnosed the appellant as suffering from post-traumatic stress disorder (PTSD) specifically described as 'complex trauma stemming from developmental disruption'. In summary, Mr Hughes' report dated 16 June 2022 provided as follows:
   1. The appellant's mother's abuse and neglect was the primary contributing factor to the appellant's past and current conditions.
   2. While other potentially traumatic events including her uncle's suicide and abuse by her aunt had occurred to the appellant, the psychologist concluded that the actions of her mother have been the primary contributing factor to her past and current condition and has precipitated further negative outcomes in her life.
   3. The psychologist attributed the following impacts to the appellant's mother's abuse:

• Disrupted development and negative self-concept.
• Poor body image and lack of self-confidence.
• Defensive and reactive personality with acute vulnerability to harm.
• Pervasive sadness, depression and suicidal ideation.
• Intrusive thoughts about mother and abuse incidents.
• Persistent nightmares and disturbed sleep since childhood.
• Cannabis dependency for self-medication.

• Severely disrupted family relationships.
• Estrangement from siblings due to separation into different homes.
• Unstable housing from age 10 - 17 years.
• Lack of nurturance and healthy adult role models.
• Current unstable living situation.

• Avoidance of social activities and difficulty managing relationships.
• Anxiety in social contexts and expectation of negative judgement.
• Fear of abandonment and difficulty with intimate relationships.
• Defensive behaviour even with close family and partner.

• Significantly disrupted schooling despite academic ability and motivation.
• Frequent school changes and high absenteeism rates.
• Inability to complete high school due to family dysfunction.
• Difficulty sustaining employment and workplace anxiety.
• Self-doubt and lack of confidence in professional settings.

1. Mr Hughes explained that the appellant 'has sustained a developmental trauma meaning that her development has been disrupted by the neglect and abuse at the hands of her mother'.[41] He noted that developmental trauma:[42]

[T]ypically results in more systemic and ingrained issues and tends to negatively impact a person's self-concept, ability to self-regulate and interpersonal functioning [and that] issues of this type are persistent and pervasive across domains of functioning.

1. Mr Hughes, in his report, recommended several treatments including trauma-focused cognitive behaviour therapy, eye movement desensitisation, reprocessing for her PTSD and behavioural therapy. Those treatments are estimated to cost $13,889 inclusive of a Medicare rebate. Aside from Mr Hughes' report which evidences 'injury' in the form of an injury to mental health, some of the incidents would appear to have caused physical injury to the appellant.

Assessment of the appellant's claims/remittal to assessor

1. The report of Mr Hughes I have referred to only discusses the effect of instances of neglect or abuse which occurred between 2010 and 2015 which is after the period of time in which the alleged offences were committed. By the same token the report states that the primary contributing factor to the appellant's trauma and psychological conditions was her mother's (KR's) abuse and neglect. However, the report does not specifically correlate the diagnosed conditions with the incidents occurring prior to 2010. In this respect, the introduction of Mr Hughes' report states:

Thank you for referring MRF for psychological assessment. I interviewed her on 16 June 2022 for psychological assessment relating to incidents of neglect perpetrated by her mother, (KR) between 2010 and 2015.

1. Self-evidently, the date range referred to in Mr Hughes' report needs to be clarified and addressed by a further report or other or further evidence. Other than the introductory statement I have set out, the report does not refer to the specific dates of any incidents. One may infer that a child in the position of the appellant would likely suffer an injury to mental health and ongoing trauma as a consequence of some or all of the incidents which I have found at [71] above to have occurred.
2. Further, at the appeal hearing counsel for the appellant raised the fact that the appellant had made a second claim for criminal injuries compensation with respect to alleged offending by her aunt, DW, which allegedly occurred during a time period after 2010 when DW had the care and control of the appellant and there was a possibility of an overlay in that evidence.[43]
3. At the hearing I enquired of both the appellant and the Chief Executive Officer whether if the appeal succeeded, the application should be remitted to the office of Criminal Injuries Compensation to assess compensation.
4. Both counsel agreed that there was insufficient information before the court to properly assess the quantum of compensation for the reasons set out in [84] - [86] and that, in the event I was satisfied that an alleged offence had occurred, I should remit the assessment of compensation to the Office of Criminal Injuries Compensation.
5. In this respect, if the court reverses an assessor's decision to refuse an application for compensation, the District Court has the power to either assess the application itself or remit the matter to an assessor for assessment. The power to remit is effected by using the power under s 56(2)(f) of the Act to 'make any necessary consequential order'.[44] I also note that in the case of Zadeh,[45] Sleight CJDC noted that there were two types of appeals under the Act: appeals on the issue of whether an award should be made (a liability issue) and appeals on the matter of compensation to be awarded (a quantum issue).[46] Where an appeal is on a liability issue, as this case is, the court has the power to remit the matter to the assessor while an appeal on a quantum issue is incompatible with remittal.
6. For these reasons, I have determined that I should exercise the power to remit the quantification of the appellant's claim for compensation under the Act to the office of Criminal Injuries Compensation for assessment. Ultimately, it will be a matter for the assessor in reviewing all evidence to make an assessment of the quantum of compensation, if any, which is payable. In this respect, although I have found an alleged offence has occurred from which injury may be inferred, it is ultimately a matter for an assessor in deciding whether to make a compensation award or the amount of a compensation award.
7. The appropriate orders are as follows:
   1. The time for making the compensation application is extended to the date that the appellant filed the application.
   2. The appellant's application for compensation be amended in accordance with the schedule submitted by the appellant's solicitors and identified at [34] of this court's reasons for decision.
   3. The quantum of compensation for the alleged offence I have found in these reasons be determined by an assessor upon a remittal of the application to the office of Criminal Injuries Compensation.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] See, for example Re Coad [2023] WADC 9 [10], [17] (Troy DCJ). See also Guy v Hampson [2019] WADC 19 [14] (Bowden DCJ) (Guy).

[2] Gullelo v Halloran [2008] WADC 145 [5] (Commissioner Staude as his Honour then was).

[3] KMM v SG [2023] WADC 136 [24] (KMM v SG) (Flynn DCJ).

[4] Campbell v The King [2023] NSWCCA 258 [51]; KMM v SG [26] (Flynn DCJ)

[5] Ward v Davey [2023] WADC 78 [16] (Lemonis DCJ); KMM v SG [26] - [29]

[6] For a discussion of the relevant principles for compensation for mental and nervous shock and case authorities for these propositions see the detailed discussion by Flynn DCJ in KMM v SG [27] - [29].

[9] Re TLJ [2016] WADC 74 [51] (Goetze DCJ).

[10] Martin v Martin [2015] WADC 138 [30] (Derrick DCJ) citing Lloyd v Small (1996) 16 SR (WA) 111 [113] - [114].

[13] This approach is consistent with the approach of Bowden DCJ in Guy [14].

[14] See, for example, Re CJR [2023] WADC 111 [52].

[15] Re McHenry [2014] WADC 92 [27] (Herron DCJ) (McHenry).

[16] Assessor's Book of Documents, page 19.

[17] CCSA s 28(2)(c)(v), s 101(1) which establishes the offence of neglecting a child who they have care or control over.

[18] Assessor's Book of Documents, pages 19 - 20.

[19] Assessor's Book of Documents, page 20.

[20] Assessor's Book of Documents, pages 20 - 21.

[21] Assessor's Book of Documents, page 21.

[22] Assessor's Book of Documents, pages 21 - 22.

[23] Road Traffic Act 1974 (WA) s 49(1) **(**RTA).

[24] Assessor's Book of Documents, page 22.

[25] Book of Documents referred to in [24] above ('Book of Documents') being the bundle of records from the Department of Communities, pages 21 - 22; 74; 79 - 80.

[26] Book of Documents, being the bundle of records from the Department of Communities, pages 21 - 22, 79 - 80.

[27] Section 28(1)(b) which states 'emotional abuse' includes being exposed to family violence.

[28] Assessor's Papers - appellant's statement to assessor, par 63.

[29] See s 23B of the Criminal Code and Hawke v The State of Western Australia [2017] WASCA 40 [128].

[30] CCSA s 28(2)(c)(i), s 28(2)(c)(iii), s 28(2)(c)(v).

[33] C [2021] WACIC 20.

[40] Book of Documents department record, pages 377 - 380.

[41] Mr Hughes' report dated 16 June 2022, page 11.

[42] Mr Hughes' report dated 16 June 2022, page 11.

[44] See for example Re TLJ [67] (Goetze DCJ)

[45] Zadeh [2015] WADC 136 [11] - [19].