Family Violence and the Victims of Crime Assistance Act 1996: Consultation Paper

6. Eligibility for assistance

Introduction to Part Two

6.1 This part of the consultation paper provides an overview of the key issues relevant to victims of family violence and the Victims of Crime Assistance Act 1996 (Vic) (the Act), as identified in the terms of reference.

6.2 The key issues are:

• the eligibility test for financial assistance

• categories and quantum (amount) of awards

• the form and timing of applications

• the notification of the alleged perpetrator

• how awards are decided, including mandatory refusal of an award

• timeliness of awards

• review, variation and refund of awards.

6.3 Each chapter in this part outlines the relevant provisions of the Act, considers how these provisions may affect victims of family violence, and discusses options for reform.

6.4 This part draws on reports and inquiries that relate to the terms of reference, on academic literature, and on information derived from preliminary consultations with key stakeholders. It also uses case law to highlight how the Act functions with respect to victims of family violence. As very few decisions of the Victims of Crime Assistance Tribunal (VOCAT) are publicly available, the Victorian Law Reform Commission (the Commission) mainly relies upon review decisions of the Victorian Civil and Administrative Tribunal (VCAT) and the Supreme Court of Victoria.

Introduction to Chapter 6

6.5 This chapter provides an overview of the eligibility criteria that an applicant must meet in order to be granted financial assistance under the Act. The chapter outlines:

• the different categories of victim under which an applicant can apply for assistance

• the requirement for there to have been an ‘act of violence’

• the requirement for there to have been ‘injury’, ‘death’ or a ‘significant adverse effect’

• the requirement that the injury, death or significant adverse effect is the ‘direct result’ of the act of violence

• the use of the ‘balance of probabilities’ as the standard of proof to determine any question of fact.

6.6 The first matter in the terms of reference asks the Commission to consider ‘the eligibility test and whether this should be expanded to include victims of family violence where a pattern of non-criminal behaviour results in physical or psychological injury’.

6.7 This chapter details the difficulties that victims of family violence can experience because of the narrow definitions used in the eligibility criteria.

6.8 Finally, the chapter sets out some options for reform, to improve access for victims of family violence, and poses questions for consideration.

Who is eligible?

6.9 A person is eligible for financial assistance under the Act if they are the ‘primary’, ‘secondary’ or ‘related’ victim of a criminal act that directly results in injury, death or a significant adverse effect.

Primary, secondary and related victims

6.10 Under the Act there are three categories of victim who may be eligible for assistance:

• primary victims

• secondary victims

• related victims.

6.11 Depending on the category under which a person makes an application, she or he will be eligible for different kinds of assistance. The categories and quantum (amount) of financial assistance available are discussed in more detail in Chapter 7. This chapter focuses on eligibility.

Primary victims

6.12 Under the Act, there are two ways that a person can be a primary victim:

• Section 7(1) states that ‘a primary victim is a person who is injured or dies as a direct result of an act of violence committed against him or her’. Section 8A(1) adds that a person is also a primary victim ‘if he or she experiences or suffers a significant adverse effect as a direct result of an act of violence’.

• Section 7(2) provides that a person is also a primary victim if they are injured or die as a direct result of trying to arrest a perpetrator of an act of violence, trying to prevent an act of violence or trying to aid or rescue a victim of an act of violence.

6.13 To qualify as a primary victim under section 7(2), the attempt to arrest, prevent, aid or rescue must be proactive.^[1] This means that if a person accidentally interrupts an act of violence, even if it ultimately prevents the offence or assists the victim, she or he is not a primary victim. In the case of Smith v Victims of Crime Assistance Tribunal,^[2] a daughter who went to check on her mother and inadvertently interrupted an assault by her father was found to be a secondary, rather than primary, victim.

6.14 Section 7(2) also provides that the person intervening in an act of violence only has to ‘believe on reasonable grounds’ that someone has committed an act of violence, or that someone is the victim of an act of violence, in order to be a primary victim on this basis.

Secondary victims

6.15 The Act provides that there are two ways that a person can be a secondary victim:

• Section 9(1) states that a person is a secondary victim if they are present at the scene of an act of violence and are injured as a direct result of witnessing that act.^[3]

• Section 9(2) states that a person is a secondary victim if they are the parent or guardian of a primary victim, who is under 18 at the time of the event, and they are injured as a direct result of subsequently becoming aware of the act of violence against their child.^[4]

6.16 The Act provides that a person is not a secondary victim under section 9(2) if they commit or are criminally responsible for the act of violence committed against the primary victim.^[5]

Related victims

6.17 A person is a ‘related victim’ under the Act if there is a primary victim who has died as a direct result of an act of violence and the person is:

• a ‘close family member’ of the deceased primary victim

• a ‘dependent’ of the deceased primary victim

• someone who has an ‘intimate personal relationship’ with the deceased primary victim.^[6]

6.18 The term ‘close family member’ is defined in the Act as meaning a ‘person who had a genuine personal relationship with the victim at the time of the death’ and is the spouse, parent, guardian, step-parent, child (including by guardianship), step-child, brother, sister, step-brother or step-sister of the victim.^[7] This list is exhaustive and excludes other types of family member.

6.19 A ‘dependent’ means an individual who was wholly or substantially dependent on the victim’s income before the commission of the act of violence, or the child of a victim who would have been dependent on the victim but who was born after their death.^[8]

6.20 ‘Intimate personal relationship’ is not defined in the Act. However, the term ‘intimate personal relationship’ has been the subject of judicial consideration. In Reid v Victims of Crime Assistance Tribunal,^[9] VCAT held that some or all of the following factors could indicate the existence of an ‘intimate personal relationship’:

• an ongoing sexual relationship

• an ongoing emotional commitment

• an ongoing provision of comfort, support and advice of a personal nature

• an ongoing sharing of confidences, intimacies and personal information

• an ongoing sharing of social contacts and attendances at social functions.^[10]

6.21 In that case, VCAT also held that the following factors (in the absence of other indicators) may not constitute an ‘intimate personal relationship’:

• financial or other material support

• a sharing of residential property

• occasional contact personally or by correspondence or telephone

• meeting or sharing at times of family events, including religious, ethnic or other holiday periods.^[11]

6.22 Based on these factors, VCAT found in Reid v Victims of Crime Assistance Tribunal that a close relationship between an aunt and a niece did not constitute an ‘intimate personal relationship’.^[12]

6.23 In addition, in order to be a related victim or a secondary victim, there must be a primary victim. In McKenna v Victims of Crime Assistance Tribunal,^[13] VCAT held that the mother of an unborn child, who died in the womb as the result of an act of violence, was not a related victim.^[14] This is because the unborn child was not a ‘person’ for the purposes of the definition of a primary victim in the Act.^[15]

6.24 The Act also excludes related victims from applying if they commit or are criminally responsible for the act of violence in question.^[16]

The need for an ‘act of violence’

6.25 To be eligible for assistance under any of the three victim categories, the Act requires that there must have been an ‘act of violence’.

6.26 An ‘act of violence’ is defined under the Act as a ‘criminal act’ or ‘a series of related criminal acts’ that occurred in Victoria and that ‘directly resulted in injury or death to one or more persons’.^[17]

6.27 The Act defines a ‘criminal act’ as an act or omission that is a ‘relevant offence’. The following offences are ‘relevant offences’ under the Act:

• an offence that involves an assault, an injury or a threat of injury to a person and which is punishable by imprisonment^[18]

• sexual offences, including rape, indecent assault, incest, sexual offences against children, sexual offences against persons with a cognitive impairment, and other sexual offences (such as sexual offences involving abduction, detention and an offensive weapon)^[19]

• the offences of stalking, child stealing and kidnapping^[20]

• conspiracy, incitement or an attempt to commit any of the offences listed above.^[21]

6.28 A ‘criminal act’ also includes an act or omission that would have constituted one of the relevant offences if the perpetrator had not been incapable of criminal responsibility due to their age, mental impairment or the existence of any other defence.^[22]

6.29 In a number of cases, VCAT has held that an ‘act of violence’ must involve an offence against the person and does not include offences against property.^[23] This means that a person whose house is the subject of the offence of arson, for example, is not eligible for assistance under the Act.^[24]

The requirement of ‘injury’ or ‘death’

6.30 The Act requires that the ‘act of violence’ must directly result in ‘injury’ or ‘death’. However, the requirement to establish injury or death varies depending on the category of victim:

• For primary victims, it needs to be established that the act of violence directly resulted in their death or injury.

• Secondary victims applying under section 9(1) need to establish that they were injured as a direct result of witnessing the act of violence. Secondary victims applying under section 9(2) as a parent of a primary victim need to establish two injuries:

– first, that the act of violence directly resulted in the death or injury of their child as the primary victim, and

– second, that they personally suffered injury as a direct result of becoming aware of the act of violence.

• Related victims need to establish that the act of violence directly caused the death of their close relation as the primary victim (see [6.17]–[6.24] for the types of relationship covered by the Act).

6.31 ‘Injury’ is defined in the Act as including:

• actual physical bodily harm

• mental illness or disorder or an exacerbation of a mental illness or disorder, whether or not flowing from nervous shock, and

• pregnancy.^[25]

6.32 In the case of RBA v Victims of Crime Assistance Tribunal,^[26] VCAT considered the meaning of ‘actual physical bodily harm’. It held that while it does not include transitory pain that lasts for a matter of minutes, it can include pain that lasts for a period of days.^[27] In that case, the applicant, who had experienced pain for a number of days following an incident of anal intercourse, was found to have suffered ‘actual physical bodily harm’.

6.33 The term ‘mental illness or disorder’ is also not defined in the Act. It appears to be generally understood by VCAT to mean any mental injury that constitutes a recognised psychiatric or psychological disorder.^[28]

6.34 However, in some cases, the presence of psychiatric symptoms without a diagnosis of a disorder has been enough to qualify as a ‘mental injury or disorder’ under the Act. For example, in AVA v Victims of Crime Assistance Tribunal,^[29] which concerned an application by a child in relation to her mother’s partner having taken indecent photos of her while she was asleep, VOCAT had found that the applicant’s ‘shyness and anxiety problems’ did not constitute a mental injury.^[30] On appeal, however, VCAT found that the presence of anxiety symptoms without an anxiety disorder still amounted to a mental injury for the purposes of the Act.^[31]

6.35 In addition, the Act deems a person to be suffering an injury if VOCAT is satisfied on medical or psychological evidence that treatment or counselling is required as a result of ‘trauma’ associated with an act of violence.^[32] VCAT has interpreted the word ‘trauma’ to ‘include not only physical injury but also psychological injury of a “startling experience which has a lasting effect on mental life; a shock”’.^[33]

6.36 The Act expressly provides that ‘injury’ does not include injury arising from property loss or damage.^[34]

Significant adverse effect

6.37 Under the Act, financial assistance can also be claimed if a victim has experienced or suffered a ‘significant adverse effect’.

6.38 There are two circumstances in which this can occur:

• First, a primary victim may be eligible for ‘special financial assistance’ under section 8A if he or she suffers a ‘significant adverse effect’ as a direct result of an act of violence. The category of ‘special financial assistance’ is discussed in more detail in Chapter 7.

• Second, a secondary victim may make a claim for assistance in relation to an act of violence that results in a ‘significant adverse effect’ for the primary victim.^[35] However, in this scenario, the secondary victim still needs to establish that he or she personally suffered an ‘injury’ as a result of witnessing or learning about the act of violence.^[36]

6.39 A ‘significant adverse effect’ is defined in the Act to include ‘any grief, distress, trauma or injury experienced or suffered by the victim as a direct result of the act of violence’.^[37]

6.40 However, as with ‘injury’, the Act provides that a ‘significant adverse effect’ does not include any property loss or damage.^[38]

Causation

6.41 As already noted, the Act requires that an act of violence must ‘directly result’ in the victim’s injury, death or a significant adverse effect.

6.42 The ‘but for’ test is frequently used by VCAT to establish that the act of violence directly resulted in the injury.^[39] This means that the test is ‘but for the act of violence, would the victim have experienced the injury?’

6.43 However, despite using it frequently, VCAT has not held that the ‘but for’ test is the only way to establish causation under the Act. In JM v Victims of Crime Assistance Tribunal,^[40] the judge stated:

it is unnecessary for me to decide whether satisfaction of the ‘but for’ test is in fact a prerequisite. I add by way of comment that the argument in support of the ‘but for’ test seems compelling.^[41]

6.44 Accordingly, there is a possibility that a causal connection may be established in another way. What this might be remains unclear.

Standard of proof

6.45 The standard of proof for establishing both that an act of violence occurred and that it directly resulted in an injury is the ‘balance of probabilities’.^[42] This is a lower standard of proof than the criminal standard of ‘beyond reasonable doubt’. (See the Glossary for the meaning of the ‘balance of probabilities’.)

6.46 In determining whether this standard has been met in applications made under the Act, VCAT has frequently applied the test set out in Briginshaw v Briginshaw.^[43] In that case, Mr Justice Dixon said:

when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found … The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.^[44]

6.47 In other words, under this test, the strength of the evidence required to determine whether or not a fact exists on the ‘balance of probabilities’ may vary depending on the seriousness of an allegation.^[45]

6.48 In the context of the Act, in which VOCAT must find whether or not a ‘criminal act’ occurred, the allegation will almost always be of a serious nature. This means that VOCAT proceedings might require a higher standard of evidence than some other civil matters.

6.49 However, in a number of cases, VCAT has held that while the Briginshaw test is relevant, the beneficial intent of the Act should also be taken into account when making a determination of fact with respect to an application for financial assistance.^[46] In particular, it has pointed to the Act’s stated purpose to recognise the effect of an act of violence on victims of crime and to express the community’s sympathy and condolence.^[47]

How do the current eligibility criteria affect victims of family violence?

6.50 The eligibility criteria for making a claim for assistance under the Act can be problematic for victims of family violence.

6.51 The narrow definitions in the Act of an ‘act of violence’ and ‘injury’ can make it difficult for victims of family violence to make a successful claim for assistance. Moreover, even where a victim of family violence meets these definitions, there can be perceived barriers to accessibility for this group of victims.

6.52 This part discusses how the eligibility criteria can be a barrier for victims of family violence.

Legislative barriers

6.53 The main legislative issues facing victims of family violence with respect to the eligibility criteria are:

• the definition of ‘act of violence’

• the definition of ‘injury’

• causation

• the victim categories.

Definition of act of violence

6.54 The Victorian Royal Commission into Family Violence (the Royal Commission) identified the definition of an ‘act of violence’ as one of the key barriers facing victims of family violence.^[48]

6.55 The requirement that the victim has endured certain ‘criminal acts’ against the person means that victims of family violence are only able to access the scheme if they have experienced physical violence, sexual violence, a threat of injury, or stalking.^[49]

6.56 Accordingly, victims of non-criminal forms of family violence, such as economic abuse, emotional and psychological abuse, intimidation, harassment, and context-specific harms that occur in a particular culture or tradition are excluded from recognition under the Act.^[50]

6.57 Moreover, victims of a form of family violence that is criminal in nature but which does not constitute an offence against the person, are also precluded from making a claim to VOCAT. The difficulty experienced by victims of family violence who are subjected to property offences, for example, is illustrated by Purcell v Victims of Crime Assistance Tribunal.^[51] In that case, VCAT found that, the applicant’s claim for assistance in respect of family violence by her former de facto partner lacked merit. This was because the applicant only provided evidence of property damage, which VCAT held did not constitute an ‘act of violence’ for the purpose of the Act.^[52]

6.58 In their submission to the Royal Commission, the Magistrates’ Court of Victoria and the Children’s Court of Victoria noted that the definition of ‘act of violence’ was much narrower than the definition of ‘family violence’ in the Family Violence Protection Act 2008 (Vic).^[53]

6.59 The definition of family violence in section 5(1) of the Family Violence Protection Act is:

a) behaviour by a person towards a family member of that person if that behaviour—

i) is physically or sexually abusive; or

ii) is emotionally or psychologically abusive; or

iii) is economically abusive; or

iv) is threatening; or

v) is coercive; or

vi) in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person; or

b) behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to in paragraph (a).

6.60 The Royal Commission noted that the discrepancies between the definition of ‘act of violence’ in the Act and the definition of ‘family violence’ in the Family Violence Protection Act 2008 (Vic) can ‘produce anomalous results in terms of eligibility’^[54] as ‘two victims of family violence who experience much the same conduct may have differing abilities to access the scheme.’^[55]

6.61 To demonstrate this point, the Royal Commission gave the example of two victims of family violence who each receive a text message in breach of an intervention order. The first victim, who receives a text message containing a threat of harm, is eligible to access the scheme. The second victim, who receives a text message that breaches an intervention order but does not contain a threat of harm, is not eligible to access the scheme.^[56]

6.62 Furthermore, even where a ‘criminal act’ is alleged that would constitute an ‘act of violence’ under the Act, victims of family violence can have difficulty proving the allegation.^[57] The case law indicates that this is particularly so in relation to sexual offences, where the dynamics of family violence can make it difficult to establish a lack of consent.

6.63 In one case, in which the applicant claimed that her husband had manipulated her into performing unwanted sexual activity by making it appear that the house was under surveillance, both VOCAT and VCAT had difficulty accepting that the applicant had not consented to the sexual activity in question.^[58] In the first VCAT decision, the Deputy President found that the whole relationship ‘had an air of fantasy about it’ and that her lack of consent was only in ‘hindsight’.^[59] In the second VCAT decision, in which the applicant’s claim was ultimately accepted, the Deputy President questioned how someone in the applicant’s position could ‘believe something that is so far-fetched and preposterous …?’^[60]

6.64 In another case, the VCAT Senior Member cast doubt on the applicant’s claim that she had been raped by her former boyfriend, because of the affectionate Facebook messages that she had written to him later in life, in which she had described her former love for him and her dismay at his lack of support during her ensuing pregnancy and late-term abortion.^[61] Her claim for assistance was rejected by VCAT.

Establishing an injury

6.65 Another potential barrier for victims of family violence is the definition of ‘injury’. This is because if a victim of family violence has not suffered physical injury and they do not suffer from a mental disorder or illness, it may be difficult for them to receive financial assistance.^[62]

6.66 As mentioned above, there are case examples in which victims of family violence who have experienced significant mental harm as a result of the violence have had their claims for mental injury refused because they do not suffer from a recognised mental illness or disorder.^[63]

6.67 Furthermore, while section 3(2) deems ‘trauma’ to be an injury for the purposes of the Act, it requires that medical or psychological evidence must be provided to demonstrate that the trauma requires counselling or treatment. This may prevent some victims of family violence from being able to claim that they have suffered an injury.

6.68 Some victims of family violence may also be deterred from applying for assistance if it means they must undergo a formal psychiatric assessment to establish that they are suffering from a mental disorder or illness.^[64] Psychiatric assessments, which are distinct from psychological counselling, are a non-therapeutic tool used to assess the level of mental injury.^[65] If administered poorly, there is a risk that psychiatric assessments could re-traumatise victims.^[66]

6.69 Preliminary consultations undertaken by the Commission also identified that the need to prove mental injury with psychiatric or psychological assessments can result in victims of family violence being directed away from frontline and community-based services. Stakeholders noted that victims of family violence are sometimes redirected from family violence counselling and social work services, which may be of the greatest benefit to their recovery, to medical professionals so they can obtain medical reports that support their VOCAT application. This was identified as a particular concern for victims of family violence living in rural or remote areas, where there are few practising psychiatrists or psychologists, as it can result in them seeking support outside of their community.

6.70 In addition, as noted above, victims of family violence whose primary injury is property damage or destruction are barred from receiving assistance under the scheme.

Causation

6.71 Victims of family violence can encounter difficulties in establishing that their injury was a ‘direct result’ of the act of violence. This is particularly so if they are suffering from a mental disorder or illness and there are other contributing factors.

6.72 The applicant in NF v Victims of Crime Assistance Tribunal ^[67] sought assistance on the basis of having witnessed his father beat his stepfather to death. VOCAT initially refused his claim for counselling costs on the grounds that the incident in question was only one of many causes of the difficulties that he faced. The other issues to which VOCAT pointed included a sexual assault, a period in residential care, and a period in youth detention. However, this decision was later set aside by VCAT, which found that the applicant’s ‘need for counselling [was] directly attributable to the act of violence, even if other layers of trauma in his life may have heightened the need’.^[68]

6.73 In CS v Victims of Crime Assistance Tribunal,^[69] both VOCAT and VCAT rejected the victim’s application partly because there were a number of other very serious matters in her life that had had a significant effect on her but were unrelated to the sexual assaults by family members for which she was making a claim. VCAT stated that ‘the State should not be required to pay unlimited counselling for treatment of issues that may be unrelated to any injury caused by the act of violence’.^[70]

The victim categories: child victims of family violence

6.74 The distinction between primary, secondary and related victims sits uneasily with child victims of family violence.

6.75 While some children are victims of family violence due to it being perpetrated directly against them, others are victims by hearing, witnessing or otherwise being exposed to the effects of family violence.^[71] Both scenarios can have far-reaching developmental and psychological consequences for children^[72] However, under the Victims of Crime Assistance Act 1996 (Vic), children who hear, witness or are otherwise exposed to the effects of family violence are only able to apply as secondary or related victims.^[73]

6.76 This is highlighted by the case of NF v Victims of Crime Assistance Tribunal.^[74] As mentioned above, the applicant witnessed his father beat his stepfather to death. He initially applied to VOCAT as a secondary victim. However, after VOCAT refused his application, he made a request to amend his application to apply as a related victim. On appeal, VCAT accepted this amendment, holding that he ‘was a secondary victim but he was also a related victim.’^[75] However, it is notable that NF was unable to apply as a primary victim, despite the severe psychological impact of the violence on him.^[76]

6.77 This is problematic, as the classification of certain child victims of family violence as secondary or related victims fails to acknowledge their lived experience of family violence and the devastating effect that it may have on them. As the Royal Commission stated, ‘children and young people experiencing family violence should be recognised as victims in their own right.’^[77]

6.78 In addition, categorising such child victims as secondary or related victims impacts the categories and quantum of award for which they are eligible. As discussed further in Chapter 7, the different victim categories affect the types and quantum of awards that an applicant can receive. In particular, only primary victims are able to apply for special financial assistance,^[78] which is a lump sum payment for which the applicant is not required to establish that she or he has suffered an injury.

6.79 As it is often difficult to anticipate the level of injury and suffering that a child victim of abuse will experience in the future,^[79] it is beneficial for all child victims of family violence to be able to access lump sum payments, irrespective of how they experience family violence.

Perceived barriers to access and lack of awareness of the Act

6.80 Even where a victim of family violence may qualify for assistance under the Act, there are perceived barriers to accessibility.

6.81 The Royal Commission found that some victims were unaware of their eligibility for assistance on the basis of family violence.^[80] It heard from one woman who said that she had only discovered that she could make an application as a victim of family violence after she had applied to VOCAT as a victim of a sexual assault.^[81] Service providers also submitted to the Royal Commission that VOCAT was underused by victims of family violence.^[82]

6.82 This lack of awareness may be attributed to a lack of support and referral services for victims of family violence. This is a particular issue for certain groups of victims. For example, the Royal Commission received a submission from Gay and Lesbian Health Victoria noting the lack of support and referral services for gay, bisexual and trans*^[83] men who have experienced family violence.^[84] It also may be due to beliefs in particular communities that crimes can only be committed by ‘evil’ strangers^[85] and therefore to a lack of understanding that family violence can give rise to eligibility under the Act.

Discussion and options for reform

6.83 This section considers options for reform that could improve access to financial assistance under the Act for victims of family violence.

6.84 In particular, it discusses the possibility of amending the definitions of an ‘act of violence’ and ‘injury’ under the Act.

Including ‘family violence’ in the definition of an ‘act of violence’

6.85 A way of overcoming some of the issues discussed in this chapter would be to change the definition of an ‘act of violence’ to better accommodate victims of family violence.

6.86 The Australian Law Reform Commission and New South Wales Law Reform Commission in their joint report, Family Violence—A National Legal Response,^[86] recommended that ‘act of violence’ be defined to explicitly include family violence, and that victims’ compensation schemes should ensure that evidence of a pattern of family violence can be considered.^[87] The Australian Law Reform Commission reiterated this recommendation in its submission to the Victorian Law Reform Commission in relation to its Victims of Crime in the Criminal Trial Process reference.^[88]

6.87 If this recommendation were to be implemented, there are a number of different ways that ‘family violence’ could be defined in the Act. This part discusses three options:

• using the definition of ‘family violence’ from section 5 of the Family Violence Protection Act 2008 (Vic)

• using a definition of ‘family violence’ that is limited to offences against the person

• using a definition of ‘family violence’ that includes non-violent offences, such as breaches of family violence intervention orders and property offences.

‘Family violence’ as defined in the Family Violence Protection Act 2008 (Vic)

6.88 One way of implementing the recommendation of the Australian Law Reform Commission and New South Wales Law Reform Commission to explicitly include ‘family violence’ as an ‘act of violence’ in the Act, is by importing the definition of ‘family violence’ found in section 5 of the Family Violence Protection Act 2008 (Vic).

6.89 As mentioned above, this is a broad definition which includes non-criminal behaviour, such as economic and psychological abuse, threats and coercion.

6.90 This approach is supported by Christine Forster, who argues that victims’ financial assistance schemes should adopt family violence-specific provisions, which define family violence broadly to include the full range of behaviours that constitute family violence, including financial and emotional abuse.^[89]

6.91 This is the approach that Queensland recently adopted in an amendment to its Victims of Crime Assistance Act 2009 (Qld).^[90] Once the amendment comes into force, the Queensland scheme will explicitly include ‘domestic violence’ within its definition of an ‘act of violence’.^[91] ‘Domestic violence’ is also defined, and has the same meaning that it does in the Domestic and Family Violence Protection Act 2012 (Qld).^[92] This definition, which is similar to the definition of ‘family violence’ in the Family Violence Protection Act 2008 (Vic), encompasses physical and sexual abuse, as well as psychological and emotional abuse, economic abuse and behaviour that is threatening, coercive or dominating.^[93]

6.92 Moreover, this option would enable child victims of family violence to be recognised as primary victims under the Act, irrespective of how they experience the family violence. This is because, as discussed earlier, the definition of ‘family violence’ in the Family Violence Protection Act 2008 (Vic) includes ‘behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, [family violence]’ ^[94]

6.93 However, in their joint submission to the Royal Commission, the Magistrates’ Court and Children’s Court expressed concern about expanding the eligibility criteria to allow victims of non-criminal acts of family violence to access the scheme.^[95]

6.94 The Courts considered that ‘applications falling under the expanded category may be more complex to determine, and result in unintended consequences’.^[96] In particular, they submitted that it could lead to increased notification of alleged perpetrators due to concerns about the need to accord procedural fairness.^[97] The problems associated with alleged perpetrator notification in the context of family violence are discussed in

Chapter 9.

6.95 The Australian Law Reform Commission and New South Wales Law Reform Commission were also of the view that the definition of family violence in victims’ financial assistance schemes should be limited to criminal acts. The Commissions stated that ‘the adoption of a definition that captures non-criminal conduct would clearly be in direct conflict with the purposes of [victims’ compensation] schemes, as they are presently framed’.^[98]

‘Family violence’ limited to offences against the person

6.96 The New South Wales victims’ assistance scheme explicitly includes family violence as part of an ‘act of violence’.^[99] However, it limits family violence to criminal offences against the person. The Victims’ Rights and Support Act 2013 (NSW) defines ‘domestic violence’ as a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)) against a family member.^[100]

6.97 This approach could be implemented in the Victorian Act by inserting a definition of ‘family violence’ into the Act that is limited to personal violence offences, such as physical and sexual assault.

6.98 Although this approach would not necessarily expand the existing eligibility criteria, it could enable decision makers to take into account the family violence context in which particular acts take place. This approach could help to highlight aggravating factors surrounding particular criminal acts, such as emotionally abusive behaviour, while ensuring consistency with the other relevant offences included in the Act’s definition of an ‘act of violence’, as well as with the Act’s object and purpose.

Incorporating non-violent criminal offences

6.99 Another option for reform, which sits in the middle ground, is to insert a crime-based definition of ‘family violence’ into the Act that includes non-violent crimes in that definition. This would ensure that the acts of family violence that give rise to eligibility for assistance would remain generally consistent with the purpose of the Act, as they would maintain a criminal character. However, by expanding the definition to include other forms of crimes, the scheme would be opened up to victims of family violence which is not of a sexual or physical nature.

6.100 In addition to offences against the person, the Australian Capital Territory victims of crime financial assistance legislation provides for a separate category of ‘domestic violence offences’ which can give rise to eligibility for financial assistance. The ‘domestic violence offences’ listed in that Act are all of a non-violent nature, and include property offences, such as destroying or damaging property, arson and trespass, driving offences, offences involving offensive weapons, and contravention of family violence protection orders.^[101]

6.101 The Victorian Act could incorporate this approach by including in its definition of ‘family violence’ a list of non-violent criminal acts that are frequently committed in the family violence context.

6.102 In particular, the definition of ‘family violence’ in the Act could include breaches of family violence intervention orders. Section 123 of the Family Violence Protection Act 2008 (Vic) makes it an offence to contravene a family violence intervention order with a penalty of level 7 imprisonment (maximum 2 years) or a level 7 fine (maximum 240 penalty units) or both. Moreover, section 123A makes it an offence punishable by level 6 imprisonment (maximum 5 years) or level 6 fine (maximum 600 penalty units) or both, to contravene a family violence intervention order with the intention of causing physical or mental harm or fear for safety.

6.103 The inclusion of these offences in the definition of ‘family violence’ would create a connection between the Act and the Family Violence Protection Act 2008 (Vic), even if the same definition of ‘family violence’ is not used. Furthermore, it would overcome the anomaly that the Royal Commission identified in terms of eligibility under the Act, whereby two victims of family violence who experience substantially similar conduct may have differing abilities to access the scheme. As described above, the Royal Commission noted that because of the definition of an ‘act of violence’ under the Act, victims of breaches of intervention orders which do not involve assault, injury or the threat of injury, are currently ineligible for financial assistance.^[102]

6.104 Another class of offence that could be included in the definition of ‘family violence’ in the Act is crimes against property. As outlined above, property damage and economic abuse are common forms of family violence that can have far-reaching consequences for victims.

6.105 There has been consideration of whether an ‘act of violence’ should be expanded to include property offences outside the context of family violence.

6.106 For example, as part of its reference on victims of crime in the criminal trial process, the Commission received a submission that the eligibility criteria in the Act should be expanded to include property offences such as property damage, burglary and online fraud.^[103] Victoria Police also submitted that it was open to this option, noting that victims of non-violent offences tend to suffer from the same type of psychological, emotional and social impacts as victims of crimes against the person.^[104]

6.107 However, the Commission decided there was no compelling reason for such an expansion.^[105] In arriving at this conclusion, the Commission took into account the Magistrates’ Court’s submission that ‘expanding eligibility to victims of non-violent and property crimes would substantially increase the number and complexity of claims and the costs of the scheme’.^[106]

6.108 In addition, the Commission noted Victoria Police’s submission that the expansion of crimes compensation schemes to cover property offences could act as a disincentive for individuals to obtain property insurance.^[107] It also referred to the New Zealand Law Commission’s consideration of this issue in its 2010 report, Compensating Crime Victims,^[108] which found that state-funded compensation for property loss would provide little social benefit and could create fundamental problems, such as those relating to property insurance.^[109]

6.109 It should be noted, however, that concerns relating to property insurance may not be applicable in the context of family violence. This is because victims of family violence may already be precluded from making insurance claims for property damage which results from the actions of a family member whose name is also on the insurance policy. Therefore, by limiting the property offences that can give rise to eligibility for assistance under the Act to those committed as part of family violence, the Act may not operate as a disincentive to taking out property insurance.

Changing the requirements for ‘injury’

6.110 Another option for reform is to expand the injuries covered by the Act. Meyering writes that the definition of ‘mental injury’ in the Victorian Act is one of the most restrictive in Australia.^[110] She contrasts it with other jurisdictions, which refer to ‘psychological or psychiatric harm’,^[111] ‘mental and nervous shock’^[112] and ‘impairment of … mental health’.^[113]

6.111 Any one of these less restrictive variations could be adopted in Victoria. This would make the scheme more accessible to victims of family violence who do not have a recognised mental disorder or illness. It would also reduce the need to obtain a psychiatric assessment report, thereby allowing victims of family violence to pursue counselling or other services that are suited to their needs, rather than medical reports geared only toward their legal application.

6.112 Alternatively, or additionally, the Act could be amended to include a broader range of injuries for victims of family violence. Both the Australian Capital Territory and Queensland schemes recognise an expanded category of injuries for victims of sexual offences and family violence, including a sense of violation, a reduced sense of self-worth, increased fear or feelings of insecurity, and reduced capacity to participate in sexual activity.^[114] The Victorian Act could also recognise such injuries in relation to family violence.

6.113 Another option for reform is to remove the requirement of proof of injury for victims of family violence. Forster suggests that this would have ‘the potential to provide victims of family violence with an easier and less traumatic means of accessing compensation for their non-financial losses’.^[115]

6.114 This is the approach of the Northern Territory victims’ financial assistance scheme in relation to sexual offences. The Victims of Crime Assistance Regulations 2007 (NT) set out a range of sexual offences that constitute ‘compensable violent acts’ for which a lump sum can be awarded to a victim without evidence of injury.^[116] This approach could be applied to family violence in the Victorian Act.

6.115 Forster advocates for a model of financial assistance whereby victims of family violence can access set categories of award depending on the severity of the family violence, without requiring proof of injury.^[117] This model could be incorporated into the Act by explicitly adding different forms of family violence to the categories of special financial assistance. The categories of special financial assistance are discussed further in Chapter 7. As the Victorian scheme currently stands, this would mean that victims of family violence would only need to prove that they had suffered a ‘significant adverse effect’ in order to be eligible for assistance. Alternatively, the Act could be amended so that victims need only to establish that the family violence occurred.

6.116 The Commission seeks the views of victims, persons affected, professionals, stakeholders and the community on what changes should be made to the eligibility criteria in the Act to better accommodate victims of family violence. Specific questions for consideration are set out below.

1. Smith v Victims of Crime Assistance Tribunal [2003] VCAT 1489 (22 October 2003) [25].

   ↑

2. Ibid.

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3. Victims of Crime Assistance Act 1996 (Vic) s 9(1).

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4. Ibid s 9(2).

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5. Ibid s 9(3).

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6. Ibid s 11(1).

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7. Ibid s 3(1).

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8. Ibid.

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9. [2002] VCAT 373 (24 May 2002) [15].

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10. Ibid [15].

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11. Ibid [16].

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12. Ibid [18]–[26].

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13. [2003] VCAT 1488 (22 October 2003).

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14. Ibid [42]–[44].

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15. Ibid.

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16. Victims of Crime Assistance Act 1996 (Vic) s 11(2).

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17. Ibid s 3(1).

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18. Ibid.

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19. Ibid. The sexual offences listed in s 3(1) of the Act are offences against Subdivisions (8A), (8B), (8C), (8D), or (8E) of Division 1 of Part 1 of the Crimes Act 1958 (Vic), any corresponding previous enactment (sexual offences) and the common law offences of rape or assault with intent to rape.

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20. Victims of Crime Assistance Act 1996 (Vic) s 3(1).The offences referred to are those contained in ss 21A(1), 63 and 63A of the Crimes Act 1958 (Vic) and any corresponding previous enactment.

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21. Victims of Crime Assistance Act 1996 (Vic) s 3(1).

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22. Ibid. See also BVB v Victims of Crime Assistance Tribunal [2010] VSC 57, in which the fact that the perpetrators were children did not prevent the primary victim from making an application for assistance, and Gulcan v Victims of Crime Assistance Tribunal [2007] VCAT 2372, in which the fact that the driver of a car was suffering an epileptic fit when they struck the primary victim did not stand in the way of their claim.

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23. See Lowe v Victims of Crime Assistance Tribunal [2004] VCAT 1092 (8 June 2004) [15]; Purcell v Victims of Crime Assistance Tribunal (13 June 2011) [18]; Matthews v Victims of Crime Assistance Tribunal [2012] VCAT 1099 (27 July 2012) [18]–[19].

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24. Lowe v Victims of Crime Assistance Tribunal [2004] VCAT 1092 (8 June 2004); Matthews v Victims of Crime Assistance Tribunal [2012] VCAT 1099 (27 July 2012).

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25. Victims of Crime Assistance Act 1996 (Vic) s 3(1).

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26. [2009] VCAT 2225 (26 October 2009).

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27. Ibid [21].

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28. See, eg, RBA v Victims of Crime Assistance Tribunal [2009] VCAT 2225 (26 October 2009) [20]. While VCAT accepted that the applicant was a ‘traumatised person’, it found that there was no evidence that she suffered a mental illness or disorder.

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29. [2010] VCAT 2078 (23 December 2010).

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30. VOCAT cited in AVA v Victims of Crime Assistance Tribunal [2010] VCAT 2078 (23 December 2010) [29].

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31. Ibid [74]–[75].

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32. Victims of Crime Assistance Act 1996 (Vic) s 3(2).

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33. J v Victims of Crime Assistance Tribunal [2002] VCAT 532 (24 July 2002) [83].

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34. Victims of Crime Assistance Act 1996 (Vic) s 3(1).

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35. Ibid s 3(3).

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36. Ibid s 9.

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37. Ibid s 3(1).

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38. Ibid.

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39. See, eg, L v Victims of Crime Assistance Tribunal [2004] VCAT 496 (27 July 2004); JM v Victims of Crime Assistance Tribunal [2002] VCAT 496 (17 June 2002).

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40. [2002] VCAT 496 (17 June 2002).

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41. Ibid [14].

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42. Victims of Crime Assistance Act 1996 (Vic) s 31.

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43. (1938) 60 CLR 336. For VCAT’s application of this test, see, eg, BFK v Victims of Crime Assistance Tribunal [2017] VCAT 289 (15 March 2017) [16]; Kirk v Victims of Crime Assistance Tribunal [2007] VCAT 971 (13 June 2007) [37]; Rajah v Victims of Crime Assistance Tribunal [2002] VCAT 1422 (6 December 2002) [17].

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44. Briginshaw v Briginshaw (1938) 60 CLR 336, 361–2.

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45. Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, 171. See also BFK v Victims of Crime Assistance Tribunal [2017] VCAT 289 (15 March 2017) [16].

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46. J v Victims of Crime Assistance Tribunal [2002] VCAT 532 (24 July 2002) [48]; FG v Victims of Crime Assistance Tribunal [2011] VCAT 2449
    
    (1 September 2011) [34].

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47. J v Victims of Crime Assistance Tribunal [2002] VCAT 532 (24 July 2002) [48].

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48. Victoria, Royal Commission into Family Violence, Report and Recommendations Volume IV (2016) 78.

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49. Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper No 8 (Australian Domestic and Family Violence Clearinghouse 2010) 5.

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50. Christine Forster, ‘Compensating for the Harms of Family Violence: Statutory Barriers in Australian Victims of Crime Compensation Schemes’ (2014) 22 Journal of Law and Medicine 188, 194. See also Victoria, Royal Commission into Family Violence, Report and Recommendations Volume IV (2016) 78.

    ↑

51. [2011] VCAT 1463 (3 June 2011).

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52. Ibid [18].

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53. Victoria, Royal Commission into Family Violence, Report and Recommendations Volume IV (2016) 78; Magistrates’ Court of Victoria and Children’s Court of Victoria, Submission No 978 to Royal Commission into Family Violence, Royal Commission into Family Violence (June 2015) 57.

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54. Victoria, Royal Commission into Family Violence, Report and Recommendations Volume IV (2016) 78.

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55. Ibid.

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56. Ibid.

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57. Whittlesea Community Connections, Victims of Crime Assistance Tribunal Capacity Building Project: Discussion Paper (2011) 73.

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58. See BR v Victims of Crime Assistance Tribunal [2009] VSC 152 (23 April 2009) and RBA v Victims of Crime Assistance Tribunal [2009] VCAT 2225 (26 October 2009). This matter began as an application before VOCAT, which was rejected and subsequently appealed to VCAT. VCAT again rejected the claim by the applicant, who then sought judicial review of VCAT’s decision in the Supreme Court. The Supreme Court overturned VCAT’s decision for insufficient reasons and remitted it to VCAT. In the second hearing before VCAT, the applicant’s claim was accepted.

    ↑

59. Cited in BR v Victims of Crime Assistance Tribunal [2009] VSC 152 (23 April 2009) [17].

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60. RBA v Victims of Crime Assistance Tribunal [2009] VCAT 2225 (26 October 2009) [18].

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61. BFK v Victims of Crime Assistance Tribunal [2017] VCAT 289 (15 March 2017), [131] and [134].

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62. Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper No 8 (Australian Domestic and Family Violence Clearinghouse 2010) 5.

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63. See, eg, RBA v Victims of Crime Assistance Tribunal [2009] VCAT 2225 (26 October 2009). The applicant’s claim was ultimately accepted on the basis of physical injury. See also the first instance VOCAT decision in AVA v Victims of Crime Assistance Tribunal [2010] VCAT 2078 (set aside by VCAT).

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64. Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper No 8 (Australian Domestic and Family Violence Clearinghouse 2010) 5.

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65. Ibid.

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66. Ibid.

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67. [2012] VCAT 1740 (16 November 2012).

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68. Ibid [56].

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69. [2006] VCAT 1061 (9 June 2006).

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70. Ibid [58].

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71. See, eg, the definition of family violence in s 5(1) of the Family Violence Protection Act 2008 (Vic).

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72. Victoria, Royal Commission into Family Violence, Report and Recommendations Volume II (2016) 106. See also Kelly Richards, Children’s Exposure to Domestic Violence in Australia, Trends and Issues in Crime and Criminal Justice No.419 (Australian Institute of Criminology, 2011), 2; Monica Campo, Children’s Exposure to Domestic and Family Violence: Key Issues and Responses, CFCA Paper No. 36 (Australian Institute of Family Studies, 2015); K. O’Brian et al, ‘Lifting the Cloak of Silence: Resilient Australian Women’s Reflected Memories of Their Childhood Experiences of Witnessing Domestic Violence’ (2013) 28 Journal of Family Violence 95, 96; United Nations Children’s Fund, Behind Closed Doors: The Impact of Domestic Violence on Children (UNICEF, 2006).

    ↑

73. The definition of ‘primary victim’ in s 7 of the Victims of Crime Assistance Act 1996 (Vic) only extends to persons who are injured or die ‘as a direct result of an act of violence committed against him or her.’

    ↑

74. [2012] VCAT 1740 (16 November 2012).

    ↑

75. Ibid [21].

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76. The applicant suffered from chronic post-traumatic stress disorder and substance abuse, ibid [40]-[46].

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77. Victoria, Royal Commission into Family Violence, Report and Recommendations Volume II (2016) 142.

    ↑

78. Victims of Crime Assistance Act 1996 (Vic) s 8A(1.

    ↑

79. Forster and Parkinson describe this as the ‘sleeper effect of childhood abuse’ see Christine Forster and Patrick Parkinson, ‘Compensating Child Sexual Assault Victims Within Statutory Schemes: Imagining a More Effective Compensatory Framework’ (2000) 23(2) University of New South Wales Law Journal 172.

    ↑

80. Victoria, Royal Commission into Family Violence, Report and Recommendations Volume IV (2016) 81.

    ↑

81. Ibid.

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82. Ibid.

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83. The term ‘trans*’ is used here as an umbrella term to denote transgender, transsexual and gender non-conforming persons.

    ↑

84. Victoria, Royal Commission into Family Violence, Report and Recommendations Volume IV (2016), 81.

    ↑

85. See, eg, Matthew Willis, Non-disclosure of Violence in Australian Indigenous Communities, Trends and Issues in Crime and Criminal Justice No 405 (Australian Institute of Criminology, 2011) 3.

    ↑

86. Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—A National Legal Response: Final Report, ALRC Report No 114 and NSWLRC Report No 128 (2010).

    ↑

87. Ibid 1395 (Recommendation 29-5).

    ↑

88. Australian Law Reform Commission, Submission No 1 to Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, 18 August 2015, 2.

    ↑

89. Christine Forster, ‘Compensating for the Harms of Family Violence: Statutory Barriers in Australian Victims of Crime Compensation Schemes’ (2014) 22 Journal of Law and Medicine 188, 207.

    ↑

90. See Victims of Crime Assistance and Other Legislation Amendment Act 2017 (Qld) (not yet in force)

    ↑

91. Ibid s 29.

    ↑

92. Ibid s 96(2).

    ↑

93. Domestic and Family Violence Protection Act 2012 (Qld) s 8. However, note that unlike s 5(1) of the Family Violence Protection Act 2008 (Vic), this definition does not include behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, family violence.

    ↑

94. Family Violence Protection Act 2008 (Vic) s 5(1)(b).

    ↑

95. Magistrates’ Court of Victoria and Children’s Court of Victoria, Submission No 978 to the Royal Commission into Family Violence, Royal Commission into Family Violence (June 2015), 58.

    ↑

96. Ibid.

    ↑

97. Ibid.

    ↑

98. Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—A National Legal Response: Final Report, ALRC Report No 114 and NSWLRC Report No 128 (2010) 285.

    ↑

99. Victims Rights and Support Act 2013 (NSW) s 19(3).

    ↑

100. Ibid s 19(8)(f). The offender must be the victim’s spouse, former spouse, de facto partner, former de facto partner, person with whom the victim had a personal intimate relationship, person with whom the victim was living (including in a residential facility), person with whom the victim had a relationship of dependence, parent, guardian, step-parent, child (including by guardianship), step-child, brother, sister, half-brother, half-sister, step-brother and step-sister.

     ↑

101. Victims of Crime (Financial Assistance) Act 2016 (ACT), div. 1.2.2, pt 1.2 of sch 1.

     ↑

102. Victoria, Royal Commission into Family Violence, Report and Recommendations Volume IV (2016) 78.

     ↑

103. Dianne Hadden, Submission No 21 to Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (2015) 11 [49].

     ↑

104. Victoria Police, Submission No 26 to Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (12 October 2015) 31–2.

     ↑

105. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report No 34 (2016) 246 [9.100].

     ↑

106. Ibid 245 [9.99]

     ↑

107. Ibid [9.98].

     ↑

108. Ibid 246 [9.100].

     ↑

109. New Zealand Law Commission, Compensating Crime Victims, Report No 121 (2010) 26–7.

     ↑

110. Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper No 8 (Australian Domestic and Family Violence Clearinghouse 2010) 5.

     ↑

111. Victims Rights and Support Act 2013 (NSW) s 18.

     ↑

112. Criminal Injuries Compensation Act 2003 (WA) s 3; Victims of Crime Act 2001 (SA) s 4.

     ↑

113. Victims of Crime Assistance Act 1976 (Tas) s 2(2).

     ↑

114. Victims of Crime (Financial Assistance) Act 2016 (ACT) s 9(1)(c). The Victims of Crime Assistance Act 2009 (Qld) currently only recognises this expanded range of injuries in relation to victims of sexual offences, see s 27(1)(f). However, the Victims of Crime Assistance and Other Legislation Amendment Act 2017 (Qld) (not yet in force) will amend this provision so that it also applies to victims of domestic violence, see s 30.

     ↑

115. Christine Forster, ‘Compensating for the Harms of Family Violence: Statutory Barriers in Australian Victims of Crime Compensation Schemes’ (2014) 22 Journal of Law and Medicine 188, 207.

     ↑

116. Victims of Crime Assistance Regulations 2007 (NT) reg. 17 and schedule 1.

     ↑

117. Christine Forster, ‘Compensating for the Harms of Family Violence: Statutory Barriers in Australian Victims of Crime Compensation Schemes’ (2014) 22 Journal of Law and Medicine 188, 207.

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