1. Under section 51 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), together with provisions of the Victims of Crime Assistance Act 1996 (Vic) as described in the following reasons, the Victorian Civil and Administrative Tribunal orders that:

a) The respondent's decision is set aside. > > b) In the particular circumstances of the applicant's application to the respondent in this proceeding, well over two years after the last occurrence of an act of violence against the applicant, this Tribunal considers that the application ought not be struck out. > > c) The applicant is awarded: > > 1. $10,000 special financial assistance; > 2. $745 for cost of the counselling report authored by Ms J White, psychologist; > 3. $200 for a counselling session by Ms White; > 4. $5,040 for twenty-four future counselling sessions; > 5. $570.50, the cost of a three-month gym membership; > 6. $750, the cost of 10 massage therapy sessions; and > 7. $900, the cost of 10 flotation therapy sessions. > > d) Concerning items 1(b)(iv) to (vii), and equivalent cost is awarded if the cost of that item has risen since the September 2024 VCAT hearing in this proceeding.

2. The respondent is to pay the applicant's legal costs on the County Court scale on a standard basis, as agreed between the parties or as taxed by the Victorian Costs Court.

1. This case concerns a history of alleged, now proven before VCAT, sexual abuse against ZDS[1] by her former husband, and the injury those assaults caused to ZDS, to the present day.
2. In August 2022, ZDS made an application for financial assistance to the Victims of Crime Assistance Tribunal (VOCAT). She alleged that her former husband for about 20 years sexually assaulted her during their marriage.
3. She made her application about eight years after she ended the marriage and the sexual assaults, and six years after the two-year time limit for making such applications to VOCAT.
4. While ZDS provided documentary evidence, she did not appear nor give evidence at the VOCAT hearing. Her lawyer submitted to VOCAT that ZDS had experienced significant distress and traumatisation that had caused her mental health to significantly decline so that she did not have the mental capacity to attend the VOCAT hearing.
5. In March 2023,[2] VOCAT refused ZDS' application, deciding she had not, under the Victims of Crime Assistance Act 1996 (the VOCA Act), satisfied VOCAT that:

a) Her application should not be struck out because it was made too late; and > > b) The alleged acts of violence had occurred.

6. In April 2023, ZDS applied to VCAT for review of VOCAT's decision.[3]
7. On 24 September 2024, VCAT heard the application. Both parties were legally represented. The documentary evidence was more extensive. ZDS, her daughter and Ms Jacqueline White, a psychologist, gave evidence. At the end of the hearing the Tribunal reserved its decision.
8. I regret and apologise for the six-month delay from the hearing to this decision, caused by competing VCAT work pressures.
9. VCAT on review makes its decision on the evidence and the law available to the Tribunal at the time of the VCAT hearing.
10. Based on the evidence available in September 2024, with no criticism of VOCAT's decision, ZDS has succeeded in her application for review with the above orders made.

1. This is a short summary of evidence before VCAT. It is not necessary to publish all the explicit detail.
2. ZDS grew up with siblings, with her childhood marked by her father being violent to her mother and siblings. She was somewhat insulated from the violence because she was his favourite. When she was a teenager, she left home to work and has mostly worked full or part-time ever since.
3. She first married at about the age of 20 and with her first husband had children. She separated from her first husband when she was in her mid-20s.
4. ZDS and her former husband met. Around that time, ZDS was a successful confident and healthy young woman.
5. All seemed well with him appearing a caring loving person, with children from a former marriage. They married in the early 1990s.
6. The birth of their child a couple of years later was followed by postnatal depression until the mid-1990s and depression which continues to the present day.
7. ZDS alleges that over about 20 years, the former husband committed:

a) Indecent assault (now known as sexual assault) against her, as defined in section 39 of the Crimes Act 1958 (Vic) (Crimes Act); and > > b) Rape against her as defined in section 38(2)(a) of the Crimes Act.[4]

8. As evidence, she primarily relied on her 2014 Statement to Victoria Police and her 2021 and 2023 statutory declarations.
9. In 2011, ZDS reported the abusive relationship to her general practitioner who in late 2011 referred her to Ms Malcolm, a psychologist. ZDS reported the 'sexually and physically abusive relationship'.
10. In 2012, ZDS first reported to Victoria Police that she had been sexually abused for the past 20 years, including being drugged, waking up to her husband's hands between her legs, always saying no. She did not make a formal complaint. She was referred to a Sexual Offences and Child Abuse Support Team (SOCIT) and then to a centre against sexual assault (CASA). Later in 2012 she advised Victoria Police that she was in the process of separating from her husband and would feel safer to further speak with them once separated.
11. ZDS separated from her husband.
12. Within weeks, she suffered a seizure and was diagnosed with cancer, undergoing surgeries followed by chemotherapy and radiotherapy.

1. In 2014, ZDS, early in her recovery from cancer, received counselling at the CASA. Later that year she again reported the offending to Victoria Police, making a formal complaint. She gave Victoria Police her former husband's handwritten letter, which she viewed as a confession that he had drugged and sexually assaulted her.
2. According to Police records, when interviewed by Police, the former husband denied the allegations.
3. In January 2015, prosecution was not authorised. Victoria Police viewed ZDS' complaint as lacking particularisation in the context that she reported consensual sex between the events of alleged nonconsensual sex. The Police did not regard the former husband's letter as sufficiently probative. On one view he was saying he put drugs in her drink for her benefit, to help her sleep.
4. This result was devastating for ZDS.
5. In 2019, ZDS self-referred to the CASA after which counselling with a social worker started.
6. By the time of her VOCAT application, ZDS relied on her statement to Victoria Police dated 30 July 2014, statutory declarations dated 15 September 2021 and 22 March 2022, and a counselling report from the CASA social worker.
7. ZDS also provided the former husband's letter. He appears to admit to putting tablets in her evening hot drink for her 'benefit'. There is no indication as to what was in the tablets and the 'benefit' is not explained.
8. By the time of the VCAT hearing, ZDS also relied on:

a) A report from Ms Jacqueline White, psychologist, dated 25 October 2023; > > b) ZDS' statutory declaration, dated 8 December 2023; and > > c) A statutory declaration from ZDS' daughter, dated 13 December 2023; > > d) Evidence that she, her daughter and Ms White would give at the VCAT hearing.

9. She sought VCAT orders that VOCAT pay the costs of:

a) Special financial assistance at $10,000; > > b) Ms White's report ($745), a past counselling session with Ms White ($200) and twenty-four future counselling sessions ($5,040[5]); > > c) A three month gym membership at $570.50; > > d) 10 floatation therapy sessions at $750; > > e) 10 massage therapy sessions at $900; and > > f) Her legal costs.

1. ZDS gave evidence that each of her statements before and during this proceeding are true and correct.
2. She described that while suffering PTSD, fibromyalgia and an STD (contracted from her former husband), her health was 'ok'. She had been clear of cancer since May 2024. That said, the cancer leaves her suffering symptoms from which she was slowly recovering, including cancer fatigue and poor short-term memory.
3. She described suffering a seizure weeks after she ended the marriage, followed by the cancer diagnosis. She was advised to put her affairs in order. She was suffering some paralysis. She could not talk. The long road to recovery has involved surgery, chemotherapy and radiotherapy.
4. She gave evidence that during the week of the hearing before VOCAT, she was first diagnosed with the STD, long dormant since the former husband infected her.
5. Coping with that diagnosis and the other health challenges she faced, she could not cope with giving evidence.
6. In her 2023 statutory declaration, ZDS had described her not giving evidence before VOCAT:

On the day of the final hearing for VOCAT I was simply not capable of appearing. I could not cope with the prospect of not being believed, and was suffering from extreme levels of distress and re-traumatisation even having to think about what happened to me, let alone having to talk about it to a male Magistrate. I had been told by my solicitors that I would be asked about my consensual sex life with [the former husband]. I couldn't cope with the thought of talking about my intimate life.

...

Any time I am questioned about these matters I re-live what happened to me. I am an honest person and have always told the truth about what he did to me. I have nothing to gain by making this all up. I have suffered since I met him ... due to his controlling behaviour and his persistent and demeaning sexual abuse.

1. At VCAT, ZDS gave some evidence concerning the assaults on her as described in these reasons, largely and appropriately relying on her previous statements.
2. She described not understanding at the time that she was being subjected to domestic violence. In retrospect, the abnormal became normal. This is in the context that it is not easy to leave your marriage.
3. ZDS explained that it was not until the CASA advised her that she realised that she could make an application to VOCAT, even if Victoria Police had not charged the former husband.
4. It is convenient that I record here, meaning no disrespect to ZDS, that an incorrect understanding of the law, can only be given limited weight.
5. In September 2024 at VCAT, ZDS sought special financial assistance and financial assistance for counselling and physical therapies, to get her life back, to be a strong independent woman.
6. There was no cross examination.

1. ZDS' daughter provided a statutory declaration dated 13 December 2023. She gave evidence before VCAT, that the content of her statutory declaration, which is briefly described in these reasons, is true and correct. There was no cross examination.

1. Ms White holds a Graduate Diploma in Applied Psychology and a Masters in Psychology and has been in practice for over 20 years. She had seen ZDS for one session including psychometric testing completed beforehand. She provided her 25 October 2023 report.
2. Giving evidence at VCAT, she described ZDS giving detailed information concerning her allegations of being the victim of sexual assault and emotional abuse over 20 years.
3. Her description of what ZDS had reported to her matched up with ZDS' other statements and the other evidence in this proceeding.
4. ZDS reported, among other things, the abnormal violence becoming normal, the former husband manipulating her and her fear of her husband.
5. In her view, the features of PTSD as suffered by ZDS were consistent with the reported sexual assaults.
6. While she was aware of ZDS's reports of living amongst domestic violence as a child, in Ms White's opinion those experiences were not causing current symptoms.
7. Her provisional diagnosis of PTSD at the time of her report, was by the time she gave evidence at VCAT no longer provisional.
8. In her opinion, the trauma suffered by ZDS following her seizure and treatment for cancer, delayed ZDS's ability to fully report and act on the former husband's assault.
9. She gave evidence concerning the reasons for and expected benefits of ZDS participating in further counselling and undertaking gym sessions, massage and floatation therapy.
10. In her report she described the reasoning behind the provision of 24 counselling sessions:

Despite [ZDS] receiving counselling in relation to these 21 years of incidents, it appears that she is still experiencing profound emotional trauma. As indicated in her psychometric test results, she now has long-term psychological distress. She has developed a range of PTSD symptomatology and severe stress and depression that are continuing to disrupt her daily life and exacerbating her emotional distress and ability to live a contributing life.

It is estimated that [ZDS] will benefit from ongoing counselling on a fortnightly basis for a period of no less than 3 months, and as clinically indicated, an aim to taper off to monthly at a point in the next 12- months at this stage. A re-evaluation of her symptoms will need to be done at 3, 6 and 12 months before a decision is made regarding any ongoing psychological treatment that may be required for her recovery. ...

1. Concerning gym sessions, floatation sessions and massage therapy, she reported in part:

[ZDS's] recovery from the sexual abuse would be greatly assisted by access by a gym membership, Floatation and Massage therapy. Bessel van der Kolk's groundbreaking research, as outlined in his book "The Body Keeps the Score," highlights the profound impact of trauma on both the mind and body. This research underscores the importance of finding effective ways to regain a sense of safety and control after such an experience.

Engaging in a range of activities to bridge a path between the healing of her psyche and the body can offer [ZDS] demonstrable and measurable improvements in various aspects of her recovery. ...

Regular physical activity, such as gym workouts, can help reduce stress and anxiety by releasing endorphins, which are natural mood lifters. Exercise also improves overall well-being, boosts self-esteem, and will promote better sleep, all of which are crucial for healing after trauma.

Floatation tanks provide sensory deprivation, which would allow [ZDS] to float effortlessly in warm, buoyant saltwater. This experience can reduce stress and anxiety, promote relaxation, and enhance mindfulness. Floating can create a safe space for introspection, helping her process and cope with traumatic experiences.

Massage will assist [ZDS] relax tense muscles, alleviate physical pain, and reduce symptoms of anxiety and depression. Through the release of tension and promoting relaxation, massage therapy can help her reconnect with her body and alleviate the physical manifestations of trauma.

Engaging in these activities can strengthen the mind-body connection, fostering a sense of control and empowerment. ...

...

By participating in these activities, [ZDS] can also benefit from a renewed sense of community, safety and support. Group gym classes can provide her with a safe space to connect with others who have had similar experiences, fostering a sense of belonging and reducing the isolation that trauma often brings. Additionally, the discipline and routine of attending classes can contribute to stabilising her daily life, a crucial step in her recovery journey.

...

1. In giving evidence at hearing, Ms White acknowledged that some of these treatments may be regarded by some as 'fringe treatments' (my term). She referred to a growing body of evidence and increasing recognition in the value of such services to victims of crime. Ms White in part spoke of the growing recognition of the value of such services funded under programs such as Medicare.

1. The purposes of the VOCA Act include to assist victims of crime by making payments to them to assist recovery from crime, as a symbolic expression by the State of the community's sympathy and condolence for, and recognition of, significant adverse effects experienced or suffered by them as victims of crime.
2. Section 29(1) relevantly says that an application for assistance must be made within two years after the occurrence of the act of violence.
3. When the application is made after the two years, VOCAT, and VCAT on review, must strike the application out unless it considers that in the particular circumstances the application ought not be struck out.
4. Section 29(3) sets out criteria for the making of that decision, which relevantly are:

a) The age of the applicant at the time of the occurrence of the act of violence; > > b) Whether the applicant is suffering from a mental illness within the meaning of the Mental Health and Wellbeing Act 2022 (Vic); > > c) Whether the person who committed, or is alleged to have committed, the act of violence, was in a position of power, influence or trust in relation to the applicant; > > d) The physical or psychological effect of the act/s of violence on the applicant; > > e) Whether the delay in making the application threatens the capacity of the Tribunal to make a fair decision; and > > f) All other relevant circumstances.

5. Section 50 allows VCAT to make an award if satisfied that an act of violence has occurred, the applicant is a primary victim and the applicant is eligible to receive the assistance.
6. Section 8 sets out the assistance available to primary victims. Within a capped amount of $60,000 plus special financial assistance, the amount awarded to a primary victim may include reasonable counselling services, safety-related expenses actually and reasonably incurred and, in exceptional circumstances, other expenses to assist in recovery from the act/s of violence.
7. Section 8A says that special financial assistance can be awarded where the primary victim has suffered a 'significant adverse effect'. A significant adverse event is defined as including any grief, distress, trauma or injury experienced as a direct result of the act of violence.
8. Section 8A(5) of the VOCA Act sets out the minimum and maximum amounts of special financial assistance that may be determined on the category of the act of violence involved.
9. I now turn to deciding the four questions to be answered here.

Question 1 - Should the application be struck out due to delay? - no

1. Given the particular circumstances in this case, based on the evidence now available, viewed through the prism of the section 29 criteria, the application should not be struck out.
2. I say this, having found that over the years in question, ZDS suffered acts of violence, sexual assault as she reports, perpetrated by her former husband which resulted in her suffering significant mental illness then, and ongoing.
3. In summary, for about 20 years ZDS, as an adult, was a victim of sexual assault by her former husband. He was in a position of power and influence over her. The acts of violence caused ZDS injury in the form of mental illness. That injury combined with suffering cancer and undergoing surgery and recovery, prevented ZDS from applying to VOCAT within the two-year time limit. The six year delay does not now prevent VCAT from making a fair decision.
4. I turn to the criteria in more detail.

1. ZDS has suffered postnatal depression and then ongoing depression and anxiety, which in 2011 diagnosed as connected to the sexual abuse.

1. I accepted Ms White's evidence, including in her report which:

a) Described ZDS's report of being a victim of domestic violence, being drugged and sexually assaulted and emotionally abused for about 20 years by her former husband. She also describes ZDS reporting difficulties including re-living the experiences, avoiding reminders of the abuse, memory and concentration difficulties and severe mood disturbance; > > b) Described ZDS experiencing long term psychological distress, profound emotional trauma, PTSD symptomatology and severe stress and depression, that continue to disrupt her daily life, exacerbating her emotional distress and ability to live 'a contributing life'; > > c) Provisionally diagnosed PTSD, severe depression and stress, moderate anxiety, and a mental disorder with severe psychological distress, with a clear link between the reported assaults and the injury to ZDS; and > > d) Due to the deleterious effects of her cancer treatment, coupled with her psychological distress, ZDS' ability to plan and organise were hindered and this delayed her ability to apply to VOCAT.

Perpetrator was in a position of power, influence and trust

1. I accepted ZDS' evidence that her husband was in a position of power, influence and trust over her.
2. They were married. ZDS trusted that her husband would engage in a loving positive relationship.
3. That trust is implicit in ZDS' statement that she:

...always assumed domestic violence was just being belted up, and didn't think it could take the form of sexual abuse and being drugged by your husband ... I couldn't see the abuse from [the husband] for what it was...

1. From early in their relationship, the husband exhibited controlling behaviour over ZDS. He tried to stop her from seeing her friends and sisters, would tell her what to wear, went through her phone, rearranged her underwear drawer, etc.
2. In 1994, these controlling behaviours led to ZDS being diagnosed with depression, a condition which worsened throughout their relationship.
3. His controlling behaviour towards her continued in a different form towards the end of their marriage. In 2012 after she had confronted him about leaving the marriage, he began to threaten suicide. He would constantly break down and cry to get her to stay in the marriage.
4. For a time, his controlling behaviour achieved its desired aim to her detriment. ZDS remained in the abusive marriage, feeling an obligation to stay and help the family.
5. She described her fear in her 2023 statutory declaration.
6. For example, ZDS described one time when he lost his temper and threw her to the ground and so she knew he was capable of physical violence. This left her very frightened. She also was very afraid of him when he made threats to her that he would murder his ex-wife.
7. In 2011, ZDS began seeing Ms Fran Malcolm, a psychologist, for counselling. Ms Malcolm advised her not to tell anyone that she was seeing her, as she was concerned for both her and ZDS' safety. Ms Malcolm was fearful that he would become dangerous if he realised ZDS was trying to leave him.
8. ZDS's fear was evident when she said to police in September 2012 that she would feel safer speaking to police further once he had moved on and was out of her life.
9. After their separation, in February 2013, after her first surgery and while she was in hospital recovering, the husband came to the hospital and would not leave. She felt vulnerable and scared. He came back twice. Six weeks later when recovering in hospital from further surgery, the hospital learnt of his unwanted visits at hospital and placed her in an isolation ward to protect her.
10. In February 2020, after ZDS returned to the CASA for counselling, she reported her fear to the social worker, who reported:

[ZDS] expressed concerns about her safety and [had] already installed home security cameras, lighting and security doors at her home. Due to the alleged family violence and sexual assault she has experienced she is hyper-vigilant and having safety measures at home helps her to feel calmer at home.

Physical or psychological effect of the act of violence

1. I have found that ZDS was a victim of acts of violence perpetrated by her former husband.
2. I have accepted Ms White's evidence that this caused and causes injury in the form of mental illness.

Impact of delay on ability of VCAT to make a fair decision

1. The delay in ZDS making her application to VOCAT has no impact on VCAT's ability to make a fair decision. In fact, perhaps it has helped, with a longer-term perspective based on the continually consistent evidence now available.
2. If ZDS had made her VOCAT application within two years of the end of the sexual assault on her, with no direct fresh evidence of the acts of violence, VOCAT and now VCAT would have been in no better position to 'make a fair decision'.

1. The only forensic evidence, then and now, is the husband's letter. With alleged ongoing assaults conducted in the marital bed, there were no witnesses. With no bodily injuries, there was no medical history or reports available to assist.
2. Due to her cancer and surgery which occurred immediately after the relationship ended, ZDS' ability to assist police was limited until 2019 when she had largely recovered.
3. It was then too late to assist police as the investigation was finalised about half a year after ZDS made her police statement and complaint.
4. From 2019, her memory has gradually recovered leading her to make her 2021, 2022 and 2023 statutory declarations and to give evidence at VCAT in September 2024, providing more detail about the assaults and issues related to her application.

Question 2 - Was ZDS a primary victim of acts of violence by her former husband? - yes

1. On the balance of probabilities, the standard of proof required under section 31 of the VOCA Act, I find that from the early 1990s ZDS' former husband committed against her indecent assault and rape.[6] I find that at times this involved sexual penetration.
2. I make this finding primarily based on ZDS' consistent written statements over the years, becoming more detailed as her recollections returned, which I now set out in some more detail.
3. To an extent, her reports are corroborated by observations of Ms White that her reported PTSD symptomatology is consistent with her reported experiences. I regard the former husband's letter as significant corroborating evidence.
4. In her statement to Victoria Police dated 30 July 2014, ZDS described her husband, after the birth of their son in the mid 1990s, at night lifting the blankets, without her consent, repeatedly over several years touching and inserting his fingers into her vagina and touching her bottom. She reported that one morning in 2010 she awoke to him kneeling across her neck rubbing his penis on her face.
5. In her September 2021 statutory declaration, she described that after their son was born, her husband became more isolated and withdrawn. The abuse worsened becoming more constant which led to her suffering constant sleep deprivation as she would wake up during sexual assaults. She reported that in 1999 and 2000 he began drugging her which made her 'constantly tired and dopey'. Before the drugging began, she was a light sleeper and used to wake up as he was sexually assaulting her. When drugged she slept heavily and would not wake up as much.
6. The CASA social worker provided a report dated 9 August 2021. In 2019, ZDS had self-referred again to the CASA asking for counselling. By August 2021, she had attended 27 counselling sessions with the social worker.
7. ZDS had reported she was a victim of repeated sexual assaults by her husband directly resulting in:

a) Her difficulty in managing strong emotions such as fear, anger, anxiety, shame and disgust in her day-to-day life; > > b) her struggling to concentrate and perform at work, sleeplessness, intrusive thoughts and feelings, and nightmares and feelings of fear impacting her ability to sleep; > > c) experiencing intrusive memories and flashbacks of the sexual abuse during intimate moments with her then partner; > > d) freezing during physical intimacy and her body being unable to relax; and > > e) her having concerns and being hyper-vigilant about her safety, and having had home security cameras, lighting and security doors installed at her home.

8. In her December 2023 statutory declaration, ZDS described that as she has continued to recover from cancer, she gradually recalls more of the assaults on her. Reading letters she wrote to her former husband, the reading being part of her therapy with Ms Malcolm had brought back some memories and details.
9. She described early in the marriage the honeymoon being over. Everything revolved around sex, with daily abuse. From 1994, terrible sleep deprivation started which in December 2023, continued to affect her. She recounted ongoing sexual assaults. Sometime later, ZDS discovered, through confronting her husband who confessed, that he had been drugging her drink. During this time, she described herself as giving up the fight against his pressure for sex, bullied and not consenting.
10. While he had been drugging her, she suffered further sleep deprivation and chronic diarrhea. She undertook significant medical treatment to address the diarrhea. After his confession, the drugging stopped and there was some improvement in sleep. Her diarrhea stopped.
11. She described in 2012 reporting the situation to her general practitioner, the late Dr Turnbull, who advised that she needed to leave him and referred her to Ms Malcolm.
12. She described Ms Malcolm advising her to 'play the game until you can get out of there, keep calm', because she was concerned the husband would become dangerous if he realised she was trying to leave him.
13. ZDS described contracting a sexually transmitted disease from her former husband, which continues to impact her.
14. She described her ongoing fear of her former husband.
15. The only forensic evidence available in this proceeding is a letter from the former husband to ZDS.
16. The letter in part says:

... putting tablets in your [drink] has not been for my benefit it has been for you. I know it was wrong but I never anticipated the hurt or danger I was inflicting on you. I am really sorry for this.

1. I accepted the submission on ZDS' behalf that this is a confessional letter. The husband admits to being 'obsessed with sex'. In the same sentence where he alleges that drugging ZDS was for her benefit, he talks of his need for sex, admits that drugging her was wrong, and acknowledges that drugging her inflicted 'hurt' and 'danger' upon her. He then apologises for drugging her. More likely than not, he was not saying he was drugging ZDS for her benefit. He was confessing to drugging her for his benefit, to keep her asleep while he assaulted her.
2. ZDS has over years given consistent accounts of assaults on her by her former husband, with the clarity of the reports improving as she has continued her recovery.
3. The evidence makes it clear that she did not consent to ongoing sexual acts performed on her, either awake and not consenting, asleep or waking up and therefore incapable of consenting. Her husband while performing sexual acts on her would have been aware that she was not consenting or might not have been consenting or gave no thought to this.
4. It was submitted that the former husband's denial of the allegations ZDS made to Victoria Police should not be accepted, in part given significant evidence of his poor character.
5. This included evidence of the husband:

a) in the letter admitting to lying from a young age, when they first met lying that he was already divorced so that she would allow him to move in with her and lying that he had a drivers licence; > > b) in 2009, distributing pornography in the workplace; > > c) kicking the side of his previous wife's car and swearing at her in front of their children; > > d) being subject to allegations that: > > 1. he had exposed himself to his sisters' child; > 2. that at a sleepover he sexually offended against a teenager; and > 3. he probably sexually abused ZDS' daughter.

6. The allegations are in part in ZDS' 2014 police statement and in part in her daughter's 13 December 2023 statutory declaration. ZDS daughter confirms the truth of allegations which ZDS made in the police statement.
7. ZDS' daughter's statement also described the former husband, when she was a teenager, bringing her alcohol before she fell asleep, him (her then step-father) lifting the blanket at her feet and her passing out with him not replying to her asking what he was doing. She woke up with him beside her. More than once she woke up with him naked in her bed after he had been intoxicated at family parties. ZDS' daughter's declaration stated that she regretted not reporting this.
8. It is not necessary in this proceeding to further record serious hearsay allegations of other sexual misconduct, long since passed, with the former husband having no opportunity to refute them.
9. The acceptance of the truth or not of those allegations does not change the outcome of this proceeding.

Question 3 - Has ZDS been injured as a direct result of the acts of violence? - yes

1. The evidence establishes that ZDS has suffered injury as a direct result of the sexual assaults.
2. Ms White's evidence, which is the key evidence now before VCAT is discussed above.
3. In a letter dated 11 September 2012, Ms Malcolm described ZDS presenting with 'mixed anxiety and depression' and having trouble staying asleep and having a poor appetite. Therapy dealt with ZDS', 'dysfunctional relationship with her partner ... This sexually and physically abusive relationship, and an abusive family history, were the main causes of her anxiety at the time'. Ms Malcolm stated that while ZDS had an 'abusive family history', she had recovered from this before meeting her former husband.
4. Returning to ZDS' 2021 statutory declaration, she describes her belief that the sexual abuse she suffered has caused her to suffer fibromyalgia.
5. The belief is supported by a letter from her general practitioner, Dr Yousif dated 8 May 2022:

Fibromyalgia is a condition that is characterised by widespread pain, sleep and memory problems at variable degrees between patients. The aetiology of fibromyalgia is still unknown, but research indicated it could be triggered by genetic, physical or emotional traumas. ...

1. In her 2023 statutory declaration, ZDS describes now living with PTSD, depression, stress and anxiety because of what her former husband did to her, still getting flashbacks from the sexual abuse. She said she is still on a journey trying to climb back up to who she was and come to terms with what he took from her.

Question 4 - financial assistance be awarded? - yes

1. Section 8A of the VOCA Act provides for assistance called 'special financial assistance'. It relevantly says if a person is a primary victim of an act of violence as defined in section 7, he or she may be awarded special financial assistance if the Tribunal is satisfied that:

a) an act of violence was committed against the person; and > > b) the person has experienced or suffered a significant adverse effect as a direct result of that act of violence; and > > c) that act of violence is a category A, B, C or D act of violence for the purposes of this section.

2. The term 'significant adverse effect' is defined at section 3:

significant adverse effect, in relation to a victim of an act of

violence, includes any grief, distress, trauma or injury experienced or suffered by the victim as a direct result of the act of violence but does not include any loss of, or damage to property.

1. The above findings lead to a finding that ZDS has experienced significant adverse effect.
2. The next issue is what is the appropriate amount.
3. In the case of acts of violence involving sexual penetration or multiple sexual assaults, section 8A permits special financial assistance to be awarded of up to $10,000.
4. Schedule 1 of the Victims of Crime Assistance (Special Financial Assistance) Regulations 2021 (Vic) states that sexual penetration is a Category A act of violence; Regulation 7(2)((c) states that an uplift to Category A is available for a series of related criminal acts that are acts of sexual penetration or sexual assault.
5. The appropriate award of special financial assistance here, related to about 20 years of sexual assault, is clearly the maximum of $10,000.
6. The award, as well as providing monetary assistance, importantly recognises the violence to which ZDS was subjected, her suffering and her long road to recovery.

1. In her 25 October 2023 report, Ms White said in part:

Despite [ZDS] receiving counselling in relation to these 21 years of incidents, it appears that she is still experiencing profound emotional trauma. As indicated in her psychometric test results, she now has long-term psychological distress. She has developed a range of PTSD symptomatology and severe stress and depression that are continuing to disrupt her daily life and exacerbating her emotional distress and ability to live a contributing life.

It is estimated that [she] will benefit from ongoing counselling on a fortnightly basis for a period of no less than 3 months, and as clinically indicated, an aim to taper off to monthly at a point in the next 12- months at this stage. A re-evaluation of her symptoms will need to be done at 3, 6 and 12 months before a decision is made regarding any ongoing psychological treatment that may be required for her recovery. Total sessions requested = 24 ($4800).

1. The following amounts are awarded under section 8(2)(a) of the VOCA Act:

a) $745 for Ms White's report; > > b) $200 for a past counselling session by Ms White; and > > c) $5,040 for twenty-four future counselling sessions.

1. Section 8(3) of the VOCA Act says that in exceptional circumstances, there may also be included in the amount awarded to a primary victim for other expenses actually and reasonably incurred, or reasonably likely to be incurred, by the primary victim to assist his or her recovery from the act of violence.
2. Special circumstances exist here, including, as was submitted:

a) ZDS' devastating diagnosis of cancer immediately after the end of the relationship meant she was not able to deal with the impact of the sexual abuse for many years until she had sufficient strength and had reached a point in her recovery that she could address the impact of the abuse. Decades later she is still suffering from PTSD, severe depression and stress and moderate anxiety. The persistence and severity of ZDS' multiple psychological illnesses, some 30 years after the onset of the violence is exceptional; > > b) The sexual abuse occurred in ZDS' marital bed, being a place which ought to afford her the most safety in the world. She ought to have been able to sleep there and feel safe and secure. Instead, this was the scene of persistent and insidious sexual abuse over 21 years; > > c) The sexual abuse resulted in severe sleep deprivation as ZDS kept waking up during the assaults because she was a light sleeper. Instead of the husband curbing his ways upon ZDS becoming aware of his abuse, he took invasive and dangerous measures to ensure she would not wake and he could continue abusing her, drugging ZDS to facilitate his sexual abuse; and > > d) ZDS's ability to completely move on from the violence is compromised by the husband infecting her with an STD. This physical injury makes her feel like she 'can never get him out of (her) body'.

3. ZDS seeks modest assistance, based on Ms White's evidence above which is accepted, to fund:

e) A three-month gym membership costing $570.50; > > f) 10 massage sessions costing $750; and > > g) 10 massage flotation therapy sessions costing $900.

1. It has long been VCAT's practice in these matters to, where the applicant succeeds, require VOCAT to pay the applicant's costs.
2. The parties agreed that if ZDS succeeded, VCAT should order that VOCAT pay her legal costs on County Court scale on a standard basis, as agreed between the parties or taxed in default by the Victorian Costs Court.

[1] VCAT has anonymised the applicant's identity to avoid the unreasonable invasion of her and her adult children's privacy. Dates are to an extent not precise, to avoid identification.

[2] VOCAT's reasons for decision dated 6 September 2023.

[4] Having regard to the elements of rape under section 38(2)(a) as they were to 30 December 2007, and as amended from 1 January 2008.

[5] The original figure of $4,800 raised to $5,040 in line with an increased scale of costs.

[6] See above for references to the Crimes Act 1958.