FRF v Commissioner of Victims Rights

Decision at first instance

1. On 29 July 2022, an Assessor (Client Claims) issued a Notice of Decision under the Act with respect to the three (3) applications for victims support. The Assessor determined that in relation to application 00409462, FRF was the primary victim of an act if violence in the nature of sexual assault that occurred between 1 December 1998 and 21 February 2020 and that this was a series of related acts. The Assessor approved a category B recognition payment in the sum of $10,000.
2. However, the Assessor dismissed applications numbered 00413565 and 00427498, respectively, on the basis that the alleged acts of violence formed a series of related acts with that which was the subject of the successful application.
3. The Assessor stated, relevantly: 6. (FRF) has made 4 applications for victims support as a primary victim of alleged acts of violence involving domestic violence and sexual assault committed by the alleged offender (initials provided). By way of background, the applicant and alleged offender were married in 1999 and share two children… 27. I have considered the Legal Submission by solicitor (name provided)… I note that this document provides an overview of the evidence already considered and was prepared in advocacy of (FRF)'s application. 28. Based on the evidence, I find that sections 19(1)(a), 19(1)(b) and 19(1)(c) of the Act are satisfied on the balance of probabilities as the act apparently occurred in the course of the commission of an offence, involved violent conduct and that the applicant, more likely than not suffered physical and psychological injuries… 29. Considering the evidence of a balance of probabilities, I am satisfied that (FRF) was subjected to sexual abuse perpetrated by the alleged offender over the course of their relationship. The cumulative effect of the abuse has directly resulted in her suffering depression, anxiety and stress, 30. Having considered the evidence on a balance of probabilities, it is established that (FRF) is the primary victim of an act of violence, that occurred between 1 December 1998 and 21 February 2020 in Botany, New South Wales. Related Acts 31. Under section 19 of the Act, an act of violence can be either a single act or a series of related acts… 32. If there are a series of individual acts, they are considered to be related if they are against the same victim at the same time or over a period of time and committed by the same person or group of persons. If it is established that there has been a series of related acts, then they are considered to be a single act of violence. 33. I have reviewed the evidence on application 00413565, application 00427498 and the current application 004409462. I find that the violence perpetrated against (FRF) forms a series of related acts that constitute a single act of violence. I make this finding as the violence was perpetrated against (FRF) by the same alleged offender over a specific period of time. 34. I have based my decision on the following factors:

• The acts were committed by the same alleged offender;
• The nature and circumstances of the act of violence are the same;
• The location of the violence is the same;
• The dates of the act of violence on applications 00413565 and 0027498 fall within the date range of the act of violence established on the current application 004409462…

1. I note that a copy of this decision was emailed to FRF's solicitor under cover of a letter from the respondent dated 29 July 2022. I am therefore satisfied that the decision was served upon FRF as required by the Act.

Internal review

1. On 27 October 2022, FRF's solicitor signed an application for internal review, which alleged that the Assessor: 1. Erred in finding that the violence fated 1 December 1998 - 21 February 2020 formed a series of related acts; 2. Erred in failing to give reasons as to why the particular circumstances outlined in our submissions dated 28 March 2022 were not sufficient to find that the acts of violence were unrelated; and 3. Erred in failing to apply the beneficial intent of the Victims Rights and Support Act 2013 (NSW) (the Act). Please see attached legal submissions.
2. I refer to the submissions prepared by FRF's solicitors on 27 October 2022. I note that they alleged that distinct acts of violence occurred between 1 December 1998 and 21 February 2002, which are each eligible for a category B recognition payment. That is why FRF lodged three (3) separate applications for victims support. They also stated, relevantly: On 28 March 2022, the Applicant put Victims Services on notice that she wished to amend the dates of the applications. The original assessor does not appear to have had regard to this request and has noted that "the dates of the act of violence on applications 413565 and 427498 fall within the date range of the act of violence established on the current application 409462". Even if there were not three applications, a decision-maker can award separate recognition payments arising out of a single application, if they find that a series of related acts within a single claim are unrelated. It is open to the decision-maker at this internal review to award separate recognition payments out of application 409462.
3. I note that FRF's solicitors cited the Tribunal's decision in DKJ v Commissioner of Victims Rights [2018] NSWCATAD 270 at [56] as authority for that proposition. They argued that the Tribunal applied s 19(5) of the Act and found that acts of violence ought not to be related where there is a 'clear character which separates them from the others". In that matter, the applicant claimed victims support for multiple acts of domestic violence by the same offender over a period of about ten years. The Tribunal found that the period during which there was an enforceable AVO constituted 'particular circumstances' which justified separating the period of violence into two unrelated acts and the applicant was awarded two recognition payments on the basis of a single application.
4. Otherwise, FRF's solicitors argued that the Assessor failed to apply the legislation "beneficially" and that the Assessor failed to give reasons as to why s 19(5) of the Act was not enlivened in this matter. They also stated, relevantly: …The circumstances that define intimate partner sexual violence should not be used to diminish the support an applicant is eligible to receive. Section 19(5) gives decision-makers scope to apply the Act beneficially and in this case, elect not to relate acts of violence on this basis… In cases involving intimate partner sexual violence, a decision-maker does not apply the act beneficially if they only consider whether the s 19(4) criteria are met. In cases of intimate partner sexual violence, a decision-maker must consider whether s 19(5) applies, in recognition of the distinct character of the offending. There is no evidence that the original assessor considered whether it was open to them to apply s 19(5). The original assessor limited the grant of benefits (to) the applicant by relying on s 19(4) without considering their obligation to apply the Act beneficially. A beneficial interpretation of the Act would not have found that a characteristic like the "same alleged offender", being a key characteristic of intimate partner sexual violence, should be used to restrict benefits that could be conferred under the Act…
5. FRF's solicitors also alleged that contrary to the findings made by the Assessor, the violence occurred at multiple locations, including residential premises in Randwick, Bondi Junction and Botany, as well as at the alleged offender's family home in Manchester. In the event that the Assessor meant that the location was the same because it occurred within whatever home FRF was living in at the time, offending within the home is a common feature of intimate partner sexual violence and it is not particularly relevant to whether an act should be "related".
6. FRF's solicitors also argued that FRF is eligible for recognition payments for the following acts of violence that occurred between 1 December 1998 and 21 February 2020: (1) sexual assaults that occurred prior to having children; (2) sexual assaults that occurred after having children; (3) sexual assaults that involved choking; and (4) the aggravated sexual assault that occurred on 21 February 2020. They noted that FRF reported to Police that before she and the alleged offender had children, the alleged offender would "punish" her by having sex with her against her will after they fought, but that after they had children, he began to sexually assault her on a regular basis. They argued that the post-children assaults have "a clear character" that distinguishes them from the violence that pre-dated having the children. 1. They asserted that the pre-children acts of violence form a series of related acts which entitle FRF to a category B recognition payment; 2. They asserted that the post-children acts of violence form a series of related acts which entitle FRF to a category B recognition payment; 3. They asserted that in her statement to NSW Police, FRF described sexual assaults that involved choking that occurred between August 2020 and September 2020 and that these acts of violence have "a clear character" that distinguishes them from other sexual assaults for the purposes of s 19(5) of the Act. They argued that these acts of violence form a series of related acts which entitle FRF to a category B recognition payment; 4. They argued that the aggravated sexual assault that occurred on 21 February 2020 was different in character from previous assaults, as the alleged offender bit FRF's clitoris while he was sexually assaulting her.
7. In relation to (4) above, FRF's solicitors referred to s 61(2) of the Crimes Act 1900 (NSW), which defines "circumstances of aggravation" as meaning circumstances in which "(a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby".
8. In relation to the meaning of "actual bodily harm", FRF's solicitors adopted the decision in R v Donovan [1934] 2 KB 498, that this means "any hurt or injury to a person, which does not have to be permanent, but is more than merely transient or trifling".
9. Further, FRF's solicitors referred to a decision in "FDT", although they did not provide a citation for that decision. They asserted that in that matter, the Tribunal "cited the beneficial intent of the Act as a reason for finding that a single sexual assault involved a series of related acts".
10. For these reasons, FRF's solicitors asserted that (4) should not be related to other sexual assaults and that in itself it comprised a series of related acts. Therefore, FRF is eligible for a category B recognition payment.
11. On 8 December 2022, a Senior Assessor issued a Notice of Review Decision under the Act, which determined that FRF was a primary victim of an act of violence and approved a single category B recognition payment in the sum of $10,000. The Senior Assessor stated, relevantly: 18. A Certificate of Injury submitted in support of the application, from Registered Psychologist Jane Bayutti, indicates that the actions of the named offender caused psychological injury to (FRF). Ms Bayutti writes that (FRF) presents with Depression, anxiety and stress and that assessment "put her in the medium range for risk of anxiety or depression". Ms Bayutti's certificate includes "examples of assaults on myself", with a detailed history of sexual assaults and other abuse perpetrated by the named offender. This is discussed further under "Recognition of the trauma suffered by (FRF)". 19. Having reviewed the available documents on a balance of probabilities, I consider the evidence establishes that (FRF) was the primary victim of an act of violence involving related acts of violence… 22. I consider that the acts of sexual assault described in the evidence are related because they were committed against (FRF) over a period of time by the named offender. 23. (FRF) submitted four applications, relating to domestic violence and sexual assault perpetrated against her by the named offender. Application 369738 addresses related acts of domestic violence, excluding sexual assault. Applications 413565 and 427498 also address the sexual assaults described in the evidence referred to above. These applications were administratively dismissed by the decision maker at the time a category B recognition payment was approved on application under review, as the decision maker found that they addressed related acts that form part of the act of violence that is the subject of the approved recognition payment… 26. I have considered the grounds given for finding each of the above circumstances and acts as separate acts of violence, under section 19 of the Act. However, I do not consider that the evidence addressing the particular circumstances of those acts establish that they ought not to be treated as related acts. I further note that the evidence of psychological injury to (FRF) is dated from 10 August 2021, after (FRF) commenced counselling in March of that year. Though describing separate incidents, this evidence addresses psychological harm arising from violence perpetrated by the named offender over the whole period, identifying injury arising from a series of acts of sexual assaults. 27. Based on the above, I do not consider that the evidence establishes particular circumstances for separation of the related acts, under section 19(5) of the Act.
12. I note that a copy of the Senior Assessor's decision was emailed to FRF's solicitors under cover of a letter from the respondent dated 8 December 2022. I am therefore satisfied that the decision was duly served upon FRF.

Application for Administrative Review

1. 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.
2. On 9 January 2023, the Tribunal received an application for administrative review, which sought a review of the Senior Assessor's decision dated 8 December 2022 on the following grounds: 1. The Senior Assessor erred in finding that the acts of violence against the applicant formed a series of related acts. The applicant is eligible for four (4) category B recognition payments based on the particular circumstances of each period of violence; 2. The Senior Assessor erred in not giving sufficient weight to the beneficial intent of the Act.
3. FRF's solicitors otherwise relied upon their submissions in support of the application for internal review.
4. The matter came before Senior Member McAteer for directions on 3 February 2023. Ms P Skuse appeared for FRF and Ms K Douch, Victims Services, appeared for the respondent. The Senior Member made an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). He also order4ed the respondent to file and serve an 'aide memoire' as to their position on whether (due to the administrative approach of the Assessor in dismissing 2 of the three claims and awarding one claim having applied s 19(4) of the Victims Rights and Support Act 2013 to the three claims), are three applications to the Tribunal (or is one application) required? He noted that if the position is ultimately that two more applications need to be filed, the respondent will not press the lateness as the time has been extended under s 41 of the NCAT Act.
5. The matter came before me for directions on 3 March 2023. Ms Skuse again appeared for FRF and Ms Douch appeared for the respondent. I ordered FRF to file and serve applications for administrative review with respect to the applications numbered 427498 and 413565 on or before 17 March 2023 and directed that the application filed on 9 January 2023 is in respect of application 409462 only. I ordered the respondent to file and serve documents under s 58 of the ADR Act by 14 April 2023 and to file and serve submissions by 28 April 2023. I ordered FRF to file and serve any submissions in reply by 5 May 2023. I listed the matter for hearing by way of AVL on 12 May 2023.
6. On 17 March 2023, FRF's solicitors filed the following further applications for administrative review: 1. In relation to application no. 413565 - 2023/00088721; and 2. In relation to application no. 427498 - 2023/00088715, which relied upon the same grounds as the application filed on 9 January 2023.

The hearing

1. At the hearing on 12 May 2023, the respondent relied upon written submissions that were filed on 2 May 2023.

Respondent's submissions

1. The respondent noted that there is a dispute as to whether or not certain acts of violence ought not to be treated as related acts having regard to the particular circumstances of those acts pursuant to s 19(5) of the Act. If the Tribunal is satisfied that certain acts ought not to be treated as related, it must be satisfied that the documentary requirements set out in s 39 of the Act have been satisfied in respect of each unrelated act of violence prior to the approval of a further recognition payment.
2. The respondent argued that the Senior Assessor's findings are consistent with the approach previously taken by the Tribunal in the matters of CFV v Commissioner of Victims Rights [2016] NSWCATAD 152 (CFV) and CDZ v Commissioner of Victims Rights [2016] NSWCATAD 157 (CDZ).
3. The respondent stated that in CFV, the applicant was the victim of sexual assault, indecent assault and domestic violence perpetrated over a period between 2000 and September 2011. Despite the act of violence involving different offences over a prolonged period of time, the applicant was approved a single category B recognition payment.
4. The respondent also stated that in CDZ, the applicant alleged that he was the victim of sexual assaults perpetrated by his father over a period of time from 2008 to 2010 and he was approved a single category B recognition payment.
5. While FRF's solicitors referred to the decision in DKJ v Commissioner of Victims Rights [2021] NSWCATAD 270, that decision is not bonding and it has not been applied in subsequent decisions.
6. In ERU v Commissioner of Victims Rights [2021] NSWCATAD 312, the applicant relied upon DKJ to assert that certain acts ought not be treated as related, arguing that certain acts were substantively different and separated in time. This position was rejected by the Tribunal as follows: I am satisfied that the available evidence supports a finding that ERU was the primary victim of domestic violence that occurred between 8 April 2018 and 7 September 2020 and that the domestic violence was committed by the same offender. Accordingly, I am satisfied that the acts of violence are properly regarded as a series of related acts for the purposes of the Act.
7. The respondent also argued that the Senior Assessor's approach is consistent with decisions considering the equivalent provision of the Victims Support and Rehabilitation Act 1996 (NSW) (the repealed Act). In JM v Victims Compensation Fund Corporation [2011] NSWCA 89 (JM), the Victims Compensation Tribunal concluded that the applicant was entitled to a single award of compensation in respect of sexual abuse that was perpetrated by an offender while he was a resident of a children's home (between the ages of 5 and 15 years). The act of violence comprised approximately 500 assaults, which were the subject of multiple applications for compensation. The single approval involved a finding that the acts were related "for any other reason". While the decision was initially overturned, it was subsequently restored by the Court of Criminal Appeal and the Court found that it was open for the Tribunal to conclude that the acts were related "for any other reason" with reference to the relationship between the perpetrator and the victim, the facts that the acts were committed by the same offender over a period of time in the course of an association, the relationship enabled the repetition, the nature of the acts were generally the same and the general location of the acts.
8. Otherwise, the respondent noted that while FRF referred to the case of Director-General's Department v District Court of NSW and Stark (1993) 32 NSWLR (Stark), the now repealed definition of related acts considered in that decision did not expressly include acts committed over a period of time and this contrasts to s 19(4) of the Act.
9. Further, the respondent noted that FRF's reference to "Moore" is a reference to JM v Victims Compensation Fund Corporation [2009] NSWSC 1300, which was overturned by the Court of Criminal Appeal.
10. In relation to FRF's submissions regarding beneficial legislation, the respondent stated that in Victims Compensation Fund Corporation v Brown [2003] HCA 54 (Brown), Heydon J (with whom all other members of the Court agreed) commented on the approach to the construction of the Act, as follows: 29. It is … not a decisive argument against [a particular] construction that it is possible to point to various outcomes of it which might be thought irrational, anomalous or harsh… Even if [the construction] were considered harsh or anomalous, it could not be said that this would be fatal to the construction urged by the appellant if the text otherwise required that construction. The introduction of caps and limitations upon recovery, usually justified by reference to supposed affordability, has been a relatively common feature of Australian compensation legislation in recent times.
11. Further, in Brown, Heydon J stated, relevantly: The "remedial and beneficial objectives" argument 33. To begin consideration of issues of construction by positing that a "liberal", "broad", or "narrow" construction will be given tends to obscure the essential question, that of determining the meaning the relevant words used require[29]. Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury. The numerous injuries set out in the Table to Sched 1 (which extends over twelve pages) are identified with considerable precision. The clauses in Sched 1 which precede the Table, too, are drafted with some attempt at precision. The legislation confers benefits, and no doubt it should not be construed restrictively, but in dealing with specific limited words like those of cl 5, it is not open to apply much liberality of construction. It is difficult to state the legislative purpose except at such extreme levels of generality that it is not useful in construing particular parts of the legislative language. As Spigelman CJ said[30]: "The issue before the Court is the determination of the circumstances in which compensation is payable." The legislation has endeavoured to define these circumstances in precise language which does not permit universal recovery; and hence "[t]he Court is not required to give the most expansive possible interpretation of such circumstances"[31].
12. The respondent argued that the circumstances identified by FRF do not enliven s 19(5) of the Act as: (1) the acts were allegedly perpetrated by the same offender over a period of time; (2) the express terms of s 19(4) should be given considerable weight; (3) the approval of four recognition payments in respect of acts that fall within the definition of s 19(4) is contrary to the fiscal objective of the Act and the operation of s 35(b); (4) the nature of the acts were generally the same (sexual assaults); (5) the acts occurred in the same general location (being within FRF's home); (6) FRF relies upon a single medical report which concludes that she su8ffered a psychological injury as a result of acts that occurred between January 1998 and 25 January 2021; (7) FRF's position would result in overlapping periods of related acts; and (8) FRF was approved a recognition payment in relation to domestic violence and no further recognition payment can be approved in relation to that series of related acts: s 36(2) of the Act.
13. Otherwise, the respondent argued that the form of the application for victims support "by its structure and implication", only permits one act of violence per application. Therefore, a separate application must be lodged with respect to any unrelated act of violence that is not the subject of an existing application.
14. The respondent concluded that the correct and preferable decision is to affirm the Senior Assessor's decision dated 8 December 2022.

Applicant's written submissions in reply

1. FRF's solicitors filed submissions in reply on 5 May 2023, which effectively repeated the submissions relied upon for the internal review. They concluded that the correct and preferable decision is to set aside the Senior Assessor's decision and to make the following decision in substitution: 1. The applicant is awarded two category B recognition payments in relation to application 00409462, for sexual assaults that occurred prior to and after having children; 2. The applicant is awarded a category B recognition payment in relation to application 00427498 for sexual assaults involving choking; and 3. The applicant is awarded a category B recognition payment in relation to application 00413565 for an aggravated sexual assault comprised of a series of related acts.
2. During the hearing, the respondent also argued that if the sexual assaults that pre-dated FRF having children were to be considered separately, rather than as related acts, any act of violence that occurred before 2012 (10 years before the application for victims support was made) would be out of time.

Act of violence

1. 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.
2. "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.
3. Section 20(1) of the Act defines "primary victim" as follows: A primary victim of an act of violence or act of modern slavery is a person who is injured, or dies, as a direct result of that act…
4. The onus is on FRF to prove the allegation that she was the primary victim of an act of violence that was perpetrated by the named offender on the balance of probabilities and that she suffered injury as a result.
5. Section 19(8) of the Act defines "sexual assault and domestic violence" as meaning aby of the following, relevantly: (a) sexual intercourse (within the meaning of Division 10 of Part 3 of the Crimes Act 1900) with a person without his or her consent or with consent obtained by means of a non-violent threat, … (f) any other act resulting in injury that occurred in the commission of a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) against any of the following persons - (i) a person who is or has been married to the person who committed the offence, … (iii) a person who has or has had an intimate personal relationship with the person who committed the offence, whether or not the intimate relationship involves or has involved a relationship of a sexual nature, (iv) a person who, at the time of the offence, was living in the same household as the person who committed the offence,
6. Based on the evidence before me, I am satisfied that FRF was a primary victim of an act of violence in the nature of sexual assault, which was perpetrated by the named offender over a period of time from 1 January 2010 to 24 January 2021 and that she suffered a psychological injury as a result.
7. I am also satisfied that the acts of violence are a series of related acts as defined in s 19(4) of the Act, as they were perpetrated by the same offender over a period of time, they were committed against the same person and they were perpetrated within FRF's home at the relevant time.
8. Further, I note that the nature of the acts of violence are generally the same, namely sexual assaults. Given the general terms of s 19(4), I do not consider that the Act requires the Tribunal to conduct a detailed analysis of each and every alleged act of violence in determining whether s 19(4) applies.
9. It must also be remembered that s 35(2)(b) of the Act specifically provides that a category B recognition payment applies to "a sexual assault, sexual touching or sexual act or attempted sexual assault involving violence that is one of a series of related acts". In my view, the acts of violence in this matter satisfy this description.
10. It follows that I reject the argument that in view of the beneficial nature of the Act, the Tribunal should exercise its discretion under s 19(5) and find that the acts of violence in this matter should not be treated as a series of related acts. In my view, that construction is inconsistent with the decision of the High Court in Brown.

Conclusion

1. In relation to file no. 2023/00008084, I have concluded that the correct and preferable decision is to affirm the Senior Assessor's decision dated 8 December 2022.
2. In relation to file no. 2023/00088715, the application for administrative review is dismissed as FRF has not further entitlement to a recognition support in relation to the alleged act of violence.
3. In relation to file no. 2023/00088721, the application for administrative review is dismissed as FRF has not further entitlement to a recognition support in relation to the alleged act of violence.

Orders

1. I make the following orders: 1. In relation to file no. 2023/00008084, the Senior Assessor's decision dated 8 December 2022 is affirmed. 2. In relation to file no. 2023/00088715, the application for administrative review is dismissed. 3. In relation to file no. 2023/00088721, the application for administrative review is dismissed.

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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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 June 2023