These proceedings relate to a claim for victims support and a recognition payment lodged by the applicant known by the pseudonym FGY initially before the Commissioner of Victims Rights ("the Respondent").
The application was lodged under the provisions of the Victims Rights and Support Act 2013 (NSW) (the Act) on 5 July 2021, and alleged that she was the primary victim of domestic/family violence that was committed over a period of time from 1 May 2019 to 26 June 2021 at Pyrmont, in New South Wales, and that she suffered both physical and psychological injuries as a result. The application claimed counselling, financial assistance for immediate needs and a recognition payment.
FGY stated that she reported the act of domestic violence to Police on 26 June 2021 and that the matter went to Court.
[2]
Decision at first instance
On 12 July 2021, an Assessor (Client Claims) issued a Notice of Decision, which determined that an act of violence was established on the balance of probabilities and that she was eligible for financial assistance for immediate needs in the sum of $5,000 under s 30 of the Act. In particular, the Assessor stated:
6. (FGY) describes the act of violence as follows:
Long term domestic violence including physical, psychological and financial abuse. There has been physical abuse since May 2019 where the alleged offender threw the applicant on the couch, pushed her or grabbed her forcefully. Controlling and manipulative behaviours such as forcing her to sign immigration paper, controlling her finance, and restricting social connections. In the most recent physical assault the perpetrator broke an arm of the applicant's son…
9. NSW Court records show that on 27 June 2021, a Provisional Order was made for (FGY)'s protection from the alleged offender. The grounds of application state that (FGY) and the alleged offender have been married for two years and have one child together. (FGY) also has a son from a previous relationship.
10. (FGY) reported that the alleged offender became increasingly dominating, controlling and aggressive during the course of their relationship. On 30 May 2021, the alleged offender assaulted (FGY)'s son causing his wrist to be fractured. (FGY) reported several other incidents involving the alleged offender being violent within the home. Police noted that (FGY) was visibly shaken when speaking with police. Her fear of the alleged offender was clearly evident. Police shared (FGY)'s concerns and believed that if the alleged offender continued to reside with (FGY) and her son that the violence may escalate.
On 11 August 2021, the application for a recognition payment was considered by an Assessor (Client Claims). The Assessor made an administrative decision that FGY was eligible for a category D recognition payment in the sum of $1,500 on the basis that she was the primary victim of an act of violence in the nature of an assault not resulting in grievous bodily harm. The Assessor stated, relevantly:
11. Court information confirms the alleged offender was charged with "Assault occasioning actual bodily harm" in relation to the assault on FGY's son on 30 May 2021 and that the matter was listed for hearing on 16 November 2021.
12. A certificate of injury provided by Dr (name provided) dated 30 June 2021 indicates that the applicant (sic) was verbally and physically abusive towards the applicant between 19 June 2021 and 26 June 2021. The applicant reported that the alleged offender pushed her causing her to fall on the bed. She further reported emotional and financial abuse. Dr (name provided) indicated that the applicant suffers Post-Traumatic Stress Disorder (PTSD) and Anxiety and depression, however indicated that they were pre-existing conditions that were aggravated by the abuse perpetrated by the alleged offender.
13. I have found the evidence to establish that the applicant was the victim of domestic violence in the form of physical assault and intimidation perpetrated by the alleged offender. I find that the incident resulted in psychological harm, namely an aggravation of her pre-existing PTSD and Anxiety and depression, that required engagement with supportive counselling.
14. Having considered the evidence on a balance of probabilities, I am satisfied (FGY) is the primary victim of an act of violence, that occurred between 1 May 2019 and 26 June 2021.
15. I find the incidents of violence perpetrated against (FGY) form a series of related acts constituting a single act of violence. I make this finding on the basis that the violence was perpetrated against (FGY) by the same alleged offender over a specific period of time…
17. Where an act of violence involves assault, the level of recognition payment is determined by whether grievous bodily harm has occurred. Here, while the applicant has clearly been affected by this abuse over time and suffered an aggravation of psychological symptoms, the evidence is not sufficient to find that injury has reached the grave level of being grievous bodily harm…
The Assessor also approved financial support for loss of earnings in the sum of $1,129.19.
I note that a copy of this decision was emailed to FGY's representative under cover of a letter from the respondent dated 11 August 2021. I am therefore satisfied that the decision was properly served upon FGY.
[3]
Internal review decision
On 18 October 2021, FGY applied for an internal review of the Assessor's decision in relation to the approval of a recognition payment.
On 21 December 2021, a Senior Assessor issued a Notice of Review Decision, which approved a category C recognition payment in the sum of $5,000. The Senior Assessor stated, relevantly:
15. Given this claim relates to a pattern of domestic violence perpetrated against (FGY) by the offender, there are two applicable categories of recognition payment which relate. These two applicable recognition payment categories relate to the extent of the reported "injury" and whether or not it can be considered grievous in nature.
16. I note that a request has been made to consider sexual harm as a part of this claim, in addition to the physical violence, verbal abuse and intimidation of (FGY). The single reference to this form of violence has been made in correspondence from psychologist (name provided) dated 14 October 2021 in which she was a victim of unwanted touching and unpredictable sexual behaviour by the offender. Regrettably, I do not find that this single reference to be sufficient particularisation of this type of violence that would allow me to include it as part of this claim. That does not mean that I do not believe that this type of harm existed, it is perhaps a reflection of the evidence available to me at this time…
20. In relation to the evidence I presently have before me, there is evidence to establish a psychological injury only. There are documents provided by the treating general practitioner and also psychologist for (FGY) which state that the experience of physical and psychological symptoms related to the trauma can be considered as debilitating and the prognosis is that they will require management and treatment in the long term.
21. Given the long term nature of these symptoms and also the level of impairment experienced by (FGY), this information can be considered as having met the required threshold to be considered as grievous in nature…
I note that a copy of this decision was sent to FGY's representative by email under cover of a letter from the respondent dated 21 December 2021. I am therefore satisfied that the decision was served as required by the Act.
[4]
Application for Administrative Review
This Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides:
(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:
(a) to affirm the administratively reviewable decision, or
(b) to vary the administratively reviewable decision, or
(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or
(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
On 18 January 2022, FGY filed the current application, which sought a review of the decision dated 21 December 2021 on the following grounds:
My claim has been approved for the category C recognition payment while in my opinion I am eligible for the category B. Review decision maker Senior Assessor Devine has stated on the page 2, paragraph 16, that sexual assault happened on the 14th October but my psychologist clearly wrote on her report about previous date. The only issue I could get a very late appointment to psychology. My psychologist can confirm it. Also I've been a victim of sexual assault 3 years of my married life.
[5]
Directions hearing
The matter came before me for directions on 18 March 2022. FGY appeared in person and Ms K Douch, Victims Services, appeared for the respondent. FGY advised the Tribunal that she did not wish to lodge any further evidence. The respondent had filed its bundle of s 58 documents and Ms Douch indicated that she would file and serve a summary of legal arguments before he hearing. I listed the matter for hearing by telephone on 27 May 2022.
[6]
The hearing
The matter came before me for hearing by telephone on 27 May 2022, at which FGY appeared in person and Ms Douch appeared for the respondent.
While FGY had not filed any further evidence, she advised the Tribunal that she was the victim of multiple sexual and physical assaults during the period in which the act of violence occurred, although she has only "recently" been able to talk to her psychologist about this. She said that she had surgery to her uterus in June 2021 and needed 6 weeks to recover from the surgery. However, on 21 June 2021, the alleged offender sexually assaulted her. She did not initially report this to Police because she was in shock and she described this to her psychologist as "rough sex." She said that she sent "screen shots" from the alleged offender, which were stored on her mobile phone, to Police and to the lawyer who is acting for her in a family law dispute regarding child custody.
As the applicant described evidence that was potentially relevant to the matters before the Tribunal, and as the respondent did not object, I marked the matter as part-heard and made further directions as follows:
1. The applicant is to file and serve any further evidence relating to the report of sexual assault to Police by 3 June 2022;
2. The respondent is granted leave to file and serve any submissions in reply to such evidence by 10 June 2022;
3. I dispense with the need for a further hearing pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW); and
4. The matter is reserved for determination on the papers after 10 June 2022.
[7]
Applicant's further evidence
FGY filed and served copies of the "Screen shots" of emails exchanged between herself and the alleged offender on 25 June 2019, between 8:18pm and 11:15pm, and on 26 June 2019, as follows:
Date Time Sent by Contents
25/06/19 8:18pm + 4:00 The alleged offender I told u already did chantage. I'll not talk to u anymore. U did on Facebook same with everyone. I'm not scaring. Chantageis crime. Stop it, don't go deep, u will hurt urself only.
25/06/19 8:20pm + 4:00 The alleged offender Report to whom?
25/06/19 8:22pm + 4:00 The alleged offender I will write ur mum. If facebook stay like this.
25/06/19 8:34pm + 4:00 The alleged offender "Which husband will share you? I don't know."
25/06/19 8:35pm FGY "Share urself. Stop to treat me as a slut."
25/06/19 8:36pm + 4:00 The alleged offender "Why u want to keep (name) video then?? Who is he for u?"
25/06/19 8:37pm FGY "I didn't I deleted how many times told, but u didn't stop to fight."
25/06/19 8:44pm FGY I understood u when I left Australia in short time. I understood how r u dangerous. I understood what is in your mind and ur plans. How I was stupid, I was understanding little before as well, but was closing my eyes on ur actions. Last times u showed deeply everything. I need just to run away from u.
25/06/19 8:41pm + 4:00 The alleged offender If you understood me. You wouldn't start fight and deleted that video.
25/06/19 9:15pm + 4:00 The alleged offender You don't have big heart to give anything. You did same with visa. Till last day. You don't want to apply it. I pushed to do it.. You don't have heart to give anything to anyone.
25/06/19 9:20pm FGY U pushed me a lot, it was ur choice, because I knew u can't keep family, u r far from that.
Unknown Unknown FGY My everything blocked because of u, when I told you I'm on centerlink single parent payment, can't work now I can't marry u pushed me and told that u will take care for family, then u were fighting for everything, even u r sharing home not paying full price for family, why I took that much hardship for husband, I could stay in hardship without any husband as well. Could leave in some cheap room with my kid. He even didn't know how to take home from real estate, I was with you, we did together, after that again u fighted with that it was by my choice, Did u have any choices? Did u have any home to take ur family? No, u didn't, but it tongue was too long for fight with me.
25/06/19 11:08pm + 4:00 The alleged offender AVO should be for you. You hitted me a lot times (name). Now you are brave to do these things..
25/06/19 11:15pm + 4:00 FGY I'm thinking u r famous with AVO. U did a lot against me, but I forgave u because I was thinking u r someone's kid, same I was thinking about ex-husband, that's why he hitting me continues. Allah will punish u for that not me….even u were laughing at us when we were sick, then u have got same flu and u understood how it was hard for me, and u were fighting in my sick time with me always. Which punish u mean?
25/06/19 11:15pm + 4:00 FGY How I can hit u hmm? How u can tell lie? U touched me and (name) always, I stayed far. (name) u r very dangerous person. Poor (name) was crying, was upset, even wanted to jump from balcony, because of u punished him a lot, u touched his brain, u played with kid brain, always u were putting it finders to us behind.
25/06/19 11:20pm FGY Moreover, u were raping after fight, u were taking me and throwing on bed and fucking, I couldn't breath a lot times, u did not by accident, but then told sorry and I trusted u, u did same to (name) as well, poor kid last months even staying far from u, because he tried a lot times to play with his dad, and even kid understood that dad can just punish him, not play and after that last times he is staying far from u.
26/06/19 2:19am FGY Stay far from me and my family, otherwise I'll report it.
26/06/22 2:21am FGY To whom need. Stay far. Don't write to me and my family.
[8]
FGY also provided an email from her representative dated 6 October 2021, attaching a "support letter for your court in November" from NSW Police. However, she did not file any evidence that she reported any sexual assault to Police.
[9]
FGY's submissions
FGY argued that because she was the victim of multiple sexual assaults, she should be eligible for a category B recognition payment in the sum of $10,000.
[10]
Respondent's submissions
The respondent filed written submissions on 24 May 2022, which argued to the effect that the correct and preferable decision is to affirm the decision of the Senior Assessor as there is insufficient evidence to support the allegation of sexual violence on the balance of probabilities.
The respondent did not dispute that FGY is a primary victim of an act of violence on the balance of probabilities for the purposes of ss 19 and 20 of the Act.
With respect to the claim for a category B recognition payment, s 35(2)(b) of the Act states:
A category B recognition payment is a payment given in respect of an act of violence or act of modern slavery of the following kinds…
(b) a sexual assault, sexual touching or sexual act or attempted sexual assault involving violence that is one of a series of related acts…
The respondent notes that while an allegation of sexual harm is referred to in the psychologist's letter, there is no NSW police or government funded report before the Tribunal (the treating psychologist is not an approved counsellor) that is sufficient to support the allegation of sexual assault as required by s 39(2)(b)(i) of the Act. In the absence of such a report, the Tribunal is unable to approved a recognition payment in respect of an alleged sexual assault.
Further particularisation of the alleged sexual harm is necessary to satisfy the Tribunal that the "unwanted touching" and "unpredictable sexual behaviour" noted by the treating psychologist was in the form of sexual assault and/or sexual touching as defined in the Crimes Act 1900 (NSW).
The respondent annexed copies of relevant provisions from the Crimes Act 1900 (NSW), which indicate the following matters:
1. Section 61HA defines "sexual intercourse as follows:
(1) For the purposes of this Division, sexual intercourse means -
(a) the penetration to any extent of the genitalia or anus of a person by -
(i) any part of the body of another person, or
(ii) any object manipulated by another person, or
(b) the introduction of any part of the genitalia of a person into the mouth of another person, or
(c) the application of the mouth or tongue to the female genitalia, or
(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).
(2) Penetration carried out solely for proper medical or hygienic purposes is not sexual intercourse for the purposes of this Division.
1. Section 61I provides:
61I Sexual assault
Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.
1. Section 61HB defines "sexual touching" as follows:
(1) For the purposes of this Division, sexual touching means a person touching another person -
(a) with any part of the body or with anything else, or
(b) through anything, including anything worn by the person doing the touching or by the person being touched,
in circumstances where a reasonable person would consider the touching to be sexual.
(1A) The continuation of sexual touching as defined in subsection (1) is also sexual touching for the purposes of this Division.
(2) The matters to be taken into account in deciding whether a reasonable person would consider touching to be sexual include -
(a) whether the area of the body touched or doing the touching is the person's genital area, anal area or breasts -
(i) whether or not the breasts are sexually developed, and
(ii) regardless of the person's gender or sex, or
(b) whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification, or
(c) whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual.
(3) Touching carried out solely for proper medical or hygienic purposes is not sexual touching for the purposes of this Division.
1. Section 61KC provides:
61KC Sexual touching
Any person (the accused person) who without the consent of another person (the complainant) and knowing that the complainant does not consent intentionally -
(a) sexually touches the complainant, or
(b) incites the complainant to sexually touch the accused person, or
(c) incites a third person to sexually touch the complainant, or
(d) incites the complainant to sexually touch a third person,
is guilty of an offence.
Maximum penalty - Imprisonment for 5 years.
1. Section 61HC defines "sexual act" as follows:
(1) For the purposes of this Division, sexual act means an act (other than sexual touching) carried out in circumstances where a reasonable person would consider the act to be sexual.
(1A) The continuation of a sexual act as defined in subsection (1) is also a sexual act for the purposes of this Division.
(2) The matters to be taken into account in deciding whether a reasonable person would consider an act to be sexual include -
(a) whether the area of the body involved in the act is a person's genital area, anal area or breasts -
(i) whether or not the breasts are sexually developed, and
(ii) regardless of the person's gender or sex, or
(b) whether the person carrying out the act does so for the purpose of obtaining sexual arousal or sexual gratification, or
(c) whether any other aspect of the act (including the circumstances in which it is carried out) makes it sexual.
(3) An act carried out solely for proper medical or hygienic purposes is not a sexual act for the purposes of this Division.
1. Section 61KE provides:
61KE Sexual act
Any person (the accused person) who without the consent of another person (the complainant) and knowing that the complainant does not consent intentionally -
(a) carries out a sexual act with or towards the complainant, or
(b) incites the complainant to carry out a sexual act with or towards the accused person, or
(c) incites a third person to carry out a sexual act with or towards the complainant, or
(d) incites the complainant to carry out a sexual act with or towards a third person,
is guilty of an offence.
Maximum penalty - Imprisonment for 18 months.
[11]
Respondent's submissions in reply
The respondent referred to the email chain between NSW Police and FGY and her representative and stated that this cannot be characterised as a police report for the purposes of s 39 of the Act. It also does not advance FGY's case because it does not refer to a sexual assault.
While one of the screen-shots of email correspondence dated 25 June 2019, which was filed by FGY, refers to an allegation of sexual assault, this is not a report for the purposes of s 39 of the Act.
For these reasons, the respondent maintained that the correct and preferable decision is to affirm the decision of the Senior Assessor.
[12]
Act of violence
Section 23(1) of the Act provides that a primary victim of an act of violence is eligible for the support under the scheme described in s 26 of the Act.
"Act of violence" is defined in s 19(1) of the Act as follows (relevantly):
(1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons:
(a) that has apparently occurred in the course of the commission of an offence, and
(b) that has involved violent conduct against one or more persons, and
(c) that has resulted in injury or death to one or more of those persons.
(2) For the avoidance of doubt, the reference to an offence in subsection (1)(a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person's age or mental illness or impairment…
The onus is on FGY to prove the allegation that she was the victim of sexual assault, as well as domestic violence, perpetrated by the alleged offender on the balance of probabilities.
Based upon the evidence before me, I am satisfied on the balance of probabilities that FGY is a primary victim of an act of domestic violence that occurred over a period of time from 1 May 2019 to 26 June 2021 and that she suffered physical injuries and an aggravation of pre-existing PTSD and Anxiety and depression as a direct result.
However, I am not satisfied on the balance of probabilities that FGY was a primary victim of sexual assault, sexual touching or sexual act (as defined in the Crimes Act 1900 (NSW)) or attempted sexual assault involving violence that is one of a series of related acts.
[13]
Recognition payment
For these reasons, I am satisfied that FGY was a primary victim of an act of violence in the nature of an assault that resulted in grievous bodily harm and that she is eligible for a Category C recognition payment in the sum of $5,000.
However, I am not satisfied that FGY is eligible for a category B recognition payment.
[14]
Section 44 of the Act
I am satisfied that there are no factors under s 44 of the Act in this matter.
[15]
Determination and Order
I am satisfied that the correct and preferable decision is to affirm the Senior Assessor's decision dated 21 December 2021 pursuant to s 63(3)(a) of the Act.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 05 July 2022