GVL v Commissioner of Victims Rights [2025] NSWCATAD 225;

After 20 years of psychological abuse and cohersive (sic) control an incident occurred on the 01.02.2022 which resulted in an no contact ADVO being put in place and finalised on 19.09.2022.

1. GVL alleged that she suffered a psychological injury as a result of the act of violence.

1. On 17 October 2024, an Assessor (Client Claims) issued a Notice of Decision and determined that an act of violence was not determined on the balance of probabilities. Therefore, the application for victims support was dismissed.
2. In particular, the Assessor noted that the ADVO that was issued in favour of GVL following the incident on 1 February 2022, indicated that she had been divorced from the alleged offender for over ten years. On that date, the alleged offender contacted her place of employment between twelve and seventeen times, which made her feel distressed and harassed. Also on that day, he contacted his children via Facebook Messenger and was highly abusive and aggressive in speaking to them. He also made a series of threats indicating that he would self-harm, and NSW Police determined that his manner was intimidating and intended to cause fear to the children.
3. The Assessor also noted that a Certificate of Injury issued by GVL's GP on 20 July 2024, indicates that the alleged offender was escalating in his verbally abusive and threatening behaviour following the incident on 1 February 2022 and that she presented with anxiety, fear, distress, sleep disturbances and heightened behaviours.
4. The Assessor determined that no offences involving violent conduct were perpetrated against GVL on 1 February 2022 and that the ex-husband's actions in contacting her workplace on multiple occasions did not meet the relevant threshold for the criminal offence of harassment Therefore, GVL was not a primary victim of an act of violence and the application for victims support was dismissed.
5. I note that a copy of the decision was emailed to GVL under cover of a letter from the respondent dated 17 October 2024. I am therefore satisfied that the decision was served on GVL as required by the Act.

1. GVL applied for an internal review of the Assessor's decision and she stated, relevantly:

So from your response am I understanding that victims services view is that psychological abuse and coercive control is not an act of violence against another person?

Given I had a no contact apprehended domestic violence order to protect myself and my children put in place by the NSW Police force against my ex-husband due to his increasingly abusive and frightening outbursts affecting my work, kids, my mental health and my life in general and also leading our local school to ban him for 2 years under an enclosed land act because of the threats to the female Principal and staff. This being the second apprehended violence order I've had to seek.

It has taken me 10 years of the last 3 being completely no contact to undo a small part of the demeaning and brain washing ingrained in me from the man's outburst, threats and abuse. I have only just started counselling this year after 20 years of being conditioned by his abuse and violent threats and you're telling me because I don't have bruises on my skin, cuts/scratches or worse, that because you can't see my scars from his violence they aren't validated? This is beyond comprehension that in 2024 women are still fighting to have a voice. Domestic violence is just that "VIOLENCE." Bruises heal but emotional damage lasts a lifetime. While I appreciate I have been granted the counselling sessions I need, the fact that because I wasn't physically harmed on my body I don't deserve any monetary gain makes me question what kind of protocols are in place here.

Do I need to have a list in point form of everything from his threats of how his bikie mates killing me or how he can make me disappear, or keying my car, driving his car at me so I have to just out of the way? Or telling my 3 girls anytime he got the chance that mum is a fat slut etc and that's not even the worst but again because he hasn't killed me yet I'm worth nothing?

It took 18 months on the behaviour to get an Apprehended Violence order to protect my children and myself because they have the same view no broken skin then he hasn't crossed a line which is unacceptable.

To have silence from his continued attacks for the first time in 20 years to allow my head space to start healing and yet I'm still faced with your decision that his "violence" wasn't bad enough for a monetary value that could potentially change mine and my kids' lives for the short erm and help in some little way to ease my stress as a single parent to 3 children. A "violent crime" should include psychological damage and in most cases of domestic violence this is always one of the major factors even before a physical act of violence occurs.

I am doing everything I can to change the cycle for my children yet I am getting knocked down at every turn by out dated rules when trying to do better. The stress alone of having to go to court appearances knowing my ex would be in attendance was off the charts to the point I thought I would vomit.

I'm not sure how to make anyone understand the type of violence of was subjected to but for years I was terrified, terrified I'd be the lady on the news that was either killed by their ex-partner or had their children's lives taken away by this man but again you're saying because he didn't punch me in the face or worse kill me I'm worth no monetary value to your flawed system?

This kind of response is why women don't follow through with the services offered to them.

As the victims of "violent acts" we seem to be the ones on trial having to explain over and over, re-traumatising ourselves just in order to move forward and get help.

I have made many police reports in the last 20 years against my ex-husband. There is a timeline of abuse and his violence that's clear to see if you look into it from the first AVO in 2013 to the most recent in 2022.

I'm tired of trying to move forward and I believe an acknowledgement of monetary value could help me do this. I've had to install cameras in my car and at my home as we still to this day live in fear my ex-husband could turn up at any time and the concern of his behaviour escalating again now the current apprehended violence order is coming to an end.

1. On 17 October 2024, a Senior Assessor issued a Notice of Review Decision and determined that that an act of violence was not established as required by s 19 of the Act and the application was therefore dismissed.
2. I note that a coy of this decision was emailed to GVL under cover of a letter from the respondent dated 17 October 2024. I am therefore satisfied that the decision was served on GVL as required by the Act.

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.

1. On 10 January 2025, the Tribunal received the current application for administrative review, in which GVL stated, relevantly:

The internal review clearly states in point 8 of the review decision that it can be physical or psychological injury suffered by the victim with findings at point 18. The review agrees I was the primary victim of an act of violence and stating in point 28 that there is no category to place me in. this is clearly no acceptable given I suffered continuous acts of violence and psychological injury and trauma from (the alleged offender) as proven by my Certificate of Injury, counsellor's report and the 2 AVOs. This is clear psychological injury as they have stated.

1. The matter came before Senior Member McAteer for Directions on 14 February 2025. GVL appeared in person 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), prohibiting the publication or broadcast of the GVL's name. He ordered the respondent to file and serve a bundle of documents under s 58 of the ADR Act by 21 February 2025 and to file and serve submissions by 21 March 2025. He ordered GVL to file and serve any further evidence by 21 March 2025. He listed the matter for hearing on 24 April 2025 by way of AVL.

1. The matter came before me for hearing on 24 April 2025, when GVL appeared in person and Ms Douch appeared for the respondent.
2. The Tribunal noted that GVL had filed a report dated 22 November 2024, from Ms Alice Wood, counsellor, issued a report about the counselling services that GVL commenced in August 2024. She stated that GVL presented with symptoms of anxiety, low mood and depression, and stated that she had been in a relationship with an emotionally abusive and controlling partner for many years, who is the father of her three daughters. She reported psychological abuse, stalking and harassment that had been inflicted on here and the children since the relationship began in 2002 and following the end of the relationship, she became extremely anxious about her and her children's safety. She has been hypervigilant and has felt panicked and overwhelmed.
3. Ms Wood stated that testing indicated a diagnosis of depression, anxiety and PTSD, which are consistent with someone experiencing interpersonal violence and living in constant fear.

1. GVL told the Tribunal that she was having counselling to deal with the coercive control that she had suffered over a period of 20 years by her ex-husband, which required two ADVOs to be issued in her favour. She stated that she is now involved in a battle for sole custody of the children in the Family Court of Australia and that her ex-husband's controlling behaviour has continued. She stated that following Court-ordered mediation, the Court ordered her ex-husband to undergo treatment for anger management, but he refused to do so.
2. GVL stated that she has seen Ms Wood for counselling every fortnight since August 2024. She said that she is able to work in an environment where she feels protected by other staff and that she avoids going to places where her ex-husband is likely to be. When she is away from home, she is constantly looking over her shoulder and checking to entry and exit points. She does not want to take anti-depressants but is instead going to a gym and trying to eat better as part of her recovery plan.
3. GVL stated that her ex-husband is representing himself in the Family Court proceedings and that having contact with him makes her feel nauseous. Because of the history, the Court has ruled that he cannot question her in the proceedings and the counsellor is supporting her through this process.

1. The respondent filed written submissions on 14 April 2024, which argued to the effect that the correct and preferable decision is to affirm the decision under review.
2. The respondent argued that while "assault" is not defined in the Act, it is clear from the context of s 35 of the Act that an act of violence must have occurred in the course of the commission of an offence. "Assault" is a common law offence punishable under various provisions of Pt 3, Div 8 of the Crimes Act 1900 (NSW). In McIntyre v R [2009] NSWCCA 305, Johnson J (MacFarlan & Blank JJA agreeing), explained the usage of the words "assault" and "battery", as follows:

40 What is an assault? The traditional common law distinction between assault and battery has largely fallen away for the purpose of application of the modern law of assault. The distinction between assault and battery noted that an assault is an act which causes another person to apprehend the infliction of immediate unlawful force on his or her person, and a battery is the actual infliction of unlawful force on another person: R v Knight (1988) 35 A Crim R 314 at 316-317. Where the assault takes the form of a battery, what is required is an intentional touching of the victim without that person's consent and without lawful excuse: Fitzgerald v Kennard (1995) 38 NSWLR 184 at 192, 200.

1. I note that the respondent's submissions were based on the premise that there was a single incident of contact by telephone on 1 February 2022, which did not satisfy the definition of an assault, based on the decision in R v Knight (see above). In that matter, the issue for determination was whether the evidence of threats made by telephone was sufficient to constitute an assault because there as nothing in the Crown's case to allow a conclusion to be drawn that any of the recipients of the calls were ever in any danger of immediate violence.
2. Justice Lee considered the definition o fan assault and he stated:

It is to be noted that the expression is "apprehend immediate violence," not "immediately apprehends violence."

...

As I have said, the evidence in the present case went no further than to merely show that threats had been made to the various callers and serious threats they were. But as to there being any evidence that those threats were threats of immediate violence, it is clear that they were not. They were mere threats which ay have been executed at any time, if at all.

...

It follows from what I have saif that none of the assault charges upon which the appellant was convicted provided any evidence for such conviction and accordingly the convictions must be set aside.

1. The respondent argued that in this matter, the alleged act of violence committed against GVL did not involve an assault, either in the strict legal usage of the word (in contradistinction to a battery) or in the broader sense (that includes a battery). There is no suggestion that the alleged conduct involved either any infliction of force or any apprehension that immediate violence/force would be inflicted against GVL. Therefore, GVL is not eligible for a recognition payment.

1. At the completion of the hearing, the Tribunal reserved its decision.

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.

1. 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...

1. In Nguyen v Cosmopolitan Homes [2008] NSWCA 246 the Court of Appeal (McDougall J, Bell & McColl JJA agreeing) stated, relevantly:

Discharge of the burden of proof: the relevant principles

44 A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour's statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.

45 Dixon CJ put the matter in different words, although to similar effect, in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 305 where his Honour said that "[t]he facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied". Although his Honour dissented in the outcome of that case, the words that I have quoted were cited with approval by the majority (Stephen, Mason, Aickin and Wilson JJ) in West v Government Insurance Office of NSW [1981] HCA 38; (1981) 148 CLR 62 at 66. See also Stephen J in Girlock (Sales) Pty Limited v Hurrell [1982] HCA 15; (1982) 149 CLR 155 at 161 - 162, and Mason J (with whom Brennan J agreed) in the same case at 168.

46 It is clear, in particular from West and Girlock, that the requirement for actual satisfaction as to the occurrence or existence of a fact is one of general application, and not limited to cases where the fact in question, if found, might reflect adversely on the character of a party or witness.

47 In Malec v JC Hutton Pty Limited (1990) 169 CLR 638 Deane, Gaudron and McHugh JJ said at 642-643:

A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.

48 On analysis, I think, what their Honours said is not inconsistent with the requirement that the tribunal of fact be actually persuaded of the occurrence or existence of the fact before it can be found. On their Honours' approach, what is required is a determination of the respective probabilities of the event's having occurred or not occurred. There is nothing in that analysis to suggest that the determination in favour of probability of occurrence should not require some sense of actual persuasion...

1. I am bound by the Court of Appeal's decision in Nguyen and for GVL to succeed in her application for administrative review, I must consider the relevant probabilities of the alleged events having occurred or not occurred and I must feel a sense of actual persuasion that it occurred in the manner alleged.
2. I note that the decision under review did not engage with GVL's evidence in the application for internal review, which was to the effect that she was the primary victim of domestic violence, in the nature of psychological abuse, that was perpetrated by her ex-husband over a period of 20 years from 2002 until 1 February 2022.
3. The respondent failed to engage with the evidence that it was necessary for two separate ADVOs to be issued in favour of GVL, with a view to protecting her and the children from the abusive behaviour of her ex-husband, in 2002 and 2022, respectively.
4. In my view, this constitutes a failure to exercise jurisdiction and it is an error of law that warrants the decision under review being set aside.
5. I note that there is also evidence that this alleged abusive behaviour has continued in the context of current custody proceedings in the Family Court of Australia, such that the Court ordered the ex-husband to undergo anger management (which he refused to do) and has ordered that he is not allowed to question GVL in those proceedings.
6. In my view, this is compelling evidence that gives rise to a sense of actual persuasion that GVL is the primary victim of an act of violence, which occurred over a period of 20 years from 2002 until 1 February 2022, and which is continuing in the context of current Court proceedings. This is not a mere case of threats being made by telephone on 1 February 2022.
7. The evidence of Ms Wood supports a finding that GVL suffered a psychological injury in the nature of fear, distress, anxiety, depression and PTSD, as a direct result of the 20 year history of psychological abuse perpetrated by her ex-husband. Accordingly, I am satisfied that this case is distinguishable from the decision in R v Knight (see above)
8. Based upon a consideration of all of the available evidence, I am satisfied that GVL is the primary victim of an act of violence in the nature of an assault, as it resulted from an intentional or reckless action by her ex-husband that caused her to fear or apprehend immediate violence, and that physical contact is not required for an assault to be committed.

1. It follows that I am satisfied that GVL is eligible for a recognition payment under ss 35 and 36 of the Act.
2. in Haoui v Regina [2008] NSWCCA 209, Justice Beasley (as her Honour then was) stated:

137 The trial judge informed the jury that the third element of the offence, namely, that the impact caused "grievous bodily harm" was in dispute. His Honour directed the jury to look at "the seriousness of the injury that Mr Mousselamani suffered." The trial judge correctly directed the jury as to the meaning of "grievous bodily harm" and also directed them that this was a question of fact for their determination. His Honour informed the jury that the challenge was whether the injury amounted to "grievous bodily harm" which, he explained, "simply means really serious bodily injury." No challenge is made to this direction, although the adverbial qualification of "simply," should, in my view be avoided as it might be considered to downplay the seriousness of the injury for the purposes of the section. His Honour also directed the jury that it was a question of fact for their determination as to whether the injury amounted to "grievous bodily harm." His Honour pointed out that the injury did not need to be permanent, or long lasting, or life threatening. His Honour reiterated that "grievous bodily harm" meant that the injury was "a really serious one."

1. In BMF v Commissioner of Victims Rights [2020] NSWCATAD 97, the Tribunal stated:

71. The case of R v Donovan [1934] 2 KB 498 at 509 provides authority for the proposition that actual bodily harm means "any hurt or injury to a person, which does not have to be permanent, but is more than merely transient or trifling." Whilst that case deals with actual bodily harm, in an instance of psychological harm, the harm must also be more than transient or trifling. Both physical and psychological or psychiatric injuries through different types of evidence constitute harm to the person. The threshold is that the hurt or injury must also be something that has an effect (general or specific) but importantly one that is more than transient or trifling.

1. The threshold for actual bodily harm in respect of a psychological injury was considered by the Court of Criminal Appeal in Shu Qiang Li v R [2005] NSWCCA 442 at [45]:

45 A further matter is that, if the victim had been injured psychologically in a very serious way, going beyond merely transient emotions, feelings and states of mind, that would be likely to have amounted to "actual bodily harm" (see R v Lardner, unreported, NSWCCA, 10 September 1998). Actual bodily harm to the victim was, of course, not an element of the offence for which the sentencing judge was sentencing the applicant.

1. Based on Ms Wood's evidence, I am satisfied that GVL was the primary victim of an act of violence in the nature of an assault resulting in grievous bodily harm. That is a "really serious" injury which has had, and continues to have, a significant impact on GVL's mental health and wellbeing and which requires ongoing counselling to address.
2. It follows that I am satisfied that GVL is eligible for a category C recognition payment under s 35(30(c) of the Act.

(1) The decision under review is set aside and I make the following decision by way of substitution.

(2) GVL is a primary victim of an act of violence on the balance of probabilities.

(3) I approve a category C recognition payment in the sum of $5,000.

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.