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

7. Assistance available

Introduction

7.1 This chapter outlines the different forms of financial assistance available to victims of crime under the Victims of Crime Assistance Act 1996 (Vic) (the Act). In particular, this chapter considers:

• the categories and quantum of awards, including the total financial assistance available and the different types of assistance that victims of crime can access

• the reduction of awards for ‘related criminal acts’.

7.2 This chapter relates to the second matter in the terms of reference, which asks the Commission to consider, within the total financial assistance available, the categories and quantum of awards with regard to the cumulative impact of family violence behaviour on victims.

7.3 The chapter then considers the ways in which the provisions dealing with the categories and quantum of awards do not take into account the cumulative harm caused by a pattern of family violence, which may occur over a long period of time and involve multiple acts of violence.

7.4 Finally, this chapter outlines options for reform to improve the adequacy of the financial assistance for victims of family violence and poses questions for consideration.

Categories and quantum of awards

7.5 The categories and quantum of awards available to victims of crime are set out in sections 8, 10, 13 and 15 of the Act and are organised according to the class of victim under which an applicant makes a claim for financial assistance.

7.6 Special financial assistance for primary victims is dealt with under section 8A of the Act and the Victims of Crime Assistance (Special Financial Assistance) Regulations 2011 (Vic) (the Regulations).

7.7 Section 4 of the Act sets out how the Victims of Crime Assistance Tribunal (VOCAT) should treat ‘related criminal acts’.

Total financial assistance available

7.8 The Act limits the amount of assistance that can be awarded to a particular victim in respect of an act of violence.

7.9 The maximum award for primary victims is $60,000 plus $10,000 of special financial assistance.^[1]

7.10 The maximum award for secondary victims is $50,000.^[2]

7.11 The maximum award for any one related victim is $50,000.^[3] However, the total maximum cumulative amount that may be awarded to all the related victims of any one primary victim is $100,000.^[4] In exceptional circumstances, VOCAT may award assistance to a related victim in excess of the maximum cumulative amount.^[5]

Current categories of award

7.12 Depending on whether a person applies to VOCAT as a primary, secondary or related victim, there are different categories of award available to her or him.

7.13 There are three main categories of award that primary victims can access:

• Expenses actually incurred or reasonably likely to be incurred for:

– reasonable counselling services

– medical expenses as a direct result of the act of violence

– loss of earnings of up to $20,000 as a direct result of the act of violence

– loss or damage to clothing worn at the time of the act of violence

– safety-related expenses as a direct result of the act of violence.^[6]

• In exceptional circumstances, an amount for other expenses actually incurred or reasonably likely to be incurred to assist in the primary victim’s recovery.^[7]

• Special financial assistance^[8] (discussed further below).

7.14 Secondary victims are able to make a claim for assistance for:

• Expenses actually incurred or reasonably likely to be incurred for:

– reasonable counselling services

– medical expenses actually and reasonably incurred or reasonably likely to be incurred as a direct result of witnessing, or becoming aware of, the act of violence.^[9]

• In exceptional circumstances, and within the limit of the total sum available to secondary victims, an amount of up to $20,000 for loss of earnings that is suffered or reasonably likely to be suffered as a direct result of the act of violence.^[10]

• In exceptional circumstances, and within the limit of the total sum available to secondary victims, other expenses actually and reasonably incurred or reasonably likely to be incurred to assist in the secondary victim’s recovery where:

– the secondary victim was under 18 at the time of the act of violence, the primary victim was their family member,^[11] and the secondary victim was injured by witnessing the act of violence^[12]

– the secondary victim was a parent or guardian of the primary victim, the primary victim was under 18 at the time of the event, and the secondary victim was injured by subsequently becoming aware of the act of violence.^[13]

7.15 Related victims can make a claim for the following:

• Expenses actually incurred or reasonably likely to be incurred for:

– reasonable counselling services

– medical expenses actually and reasonably incurred or reasonably likely to be incurred or funeral expenses as a direct result of the death of the primary victim

– distress experienced or reasonably likely to be experienced as a direct result of the death of the primary victim

– loss of money that the related victim, but for the death of the primary victim, would have been reasonably likely to receive from the primary victim during a period of up to two years after that death

– other expenses actually and reasonably incurred or reasonably likely to be incurred as a direct result of the primary victim’s death.^[14]

• In exceptional circumstances, and within the limit of the total sum available to related victims, other expenses actually and reasonably incurred or reasonably likely to be incurred to assist in the related victim’s recovery from the death of the primary victim.^[15]

7.16 A person who incurs the funeral expenses of a primary victim, but who is not a related victim, is also able to make a claim for assistance for those expenses.^[16] The maximum cumulative amount that may be awarded to a pool of related victims will be reduced by any award made in respect of funeral expenses.^[17]

7.17 Other than claims made by primary victims for safety-related expenses and clothing worn at the time of the act of violence, the Act explicitly excludes applications for expenses incurred through loss or damage to property.^[18]

7.18 As noted above, the Act expressly requires most expenses for which an application for financial assistance is made to be ‘reasonable’.

7.19 The term ‘reasonable’ has been judicially considered. In CS v Victims of Crime Assistance Tribunal,^[19] the Victorian Civil and Administrative Tribunal (VCAT) considered the meaning of ‘reasonable’ in the context of ‘reasonable counselling services’ under section 8(2)(a)of the Act. In that case VCAT referred to the definition of ‘reasonable’ in the Oxford English Dictionary: ‘not greatly less or more than might be expected; inexpensive, not extortionate’. VCAT also drew assistance from the definition of ‘reasonable’ in the Transport Accident Act 1986 (Vic), which requires the decision maker to have regard to the service actually rendered and the necessity of that service in the circumstances.^[20]

7.20 In that case, VCAT concluded that the applicant’s claim for counselling, which had been received on a weekly to fortnightly basis for five years, was unreasonable, due to there being little evidence of improvement, there having been no attempt to reduce the counselling sessions, and there being other factors in the applicant’s life that VCAT considered had contributed to her need for counselling.^[21]

7.21 VCAT has also considered the meaning of ‘exceptional circumstances’ for the purposes of making a claim for additional ‘recovery expenses’. In Mendez v Victims of Crime Assistance Tribunal,^[22] a case concerning a claim for financial assistance with respect to an assault by the applicant’s ex-partner, VCAT held that ‘exceptional circumstances’ means ‘circumstances out of the ordinary course’.^[23] In AVA v Victims of Crime Assistance Tribunal,^[24] VCAT held that whether or not exceptional circumstances exist involves a consideration of ‘all of the circumstances, including the injury and the nature of the offending’.^[25] VCAT has also considered the therapeutic value of the particular expense sought.^[26]

7.22 Assistance can be awarded under the ‘recovery expenses’ category for a diverse range of items and services. In Mendez v Victims of Crime Assistance Tribunal,^[27] for example, VCAT awarded the applicant financial assistance under this category for a gym membership and equipment for a beauty therapy course.^[28] In Hay v Victims of Crime Assistance Tribunal,^[29] which concerned child sexual assault (outside the context of family violence), VCAT awarded financial assistance for the removal of tattoos, finding that it would assist the applicant to obtain employment, which would likely be a key element in his recovery.^[30]

7.23 The Commission also heard in preliminary consultations that the ‘recovery expenses’ category is sometimes used by victims of family violence to recover expenses flowing from financial abuse or property damage, which would otherwise be unavailable under the Act.

Special financial assistance

7.24 In addition to assistance for specific expenses incurred or likely to be incurred, the Act provides that primary victims can be awarded special financial assistance.^[31]

7.25 Special financial assistance is a lump sum that can be awarded 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’.^[32] The meaning of ‘significant adverse effect’, and its implications for victims of family violence, is discussed in Chapter 6.

7.26 Special financial assistance is classified into four categories; A, B, C and D. These categories are based on the severity of the act of violence, with Category A covering the most serious offences and Category D covering the least serious.

7.27 The offences that fall into each category are set out in the schedule in the Victims of Crime Assistance (Special Financial Assistance) Regulations 2011 (Vic). They are as follows:

• Category A: offences involving sexual penetration and attempted murder

• Category B: offences involving attempted sexual penetration, an indecent act, an indecent assault, armed robbery, aggravated burglary and deprivation of liberty for the purpose of sexual penetration or demanding a ransom

• Category C: offences involving an attempt to commit any of the offences in Category B, a death threat, conduct endangering life, the infliction of serious injury and robbery

• Category D: offences involving an attempt to commit any of the offences in Category C, a threat of injury, assault, attempted assault, deprivation of liberty (other than for sexual penetration or ransom) and any other act of violence.

7.28 The minimum and maximum amounts for each category are prescribed in section 8A(5) of the Act. They appear in Table 1.

Table 1: Minimum and maximum payments for each category of special financial assistance

7.29 The Regulations, however, provide for three circumstances in which a higher maximum award of special financial assistance is available for acts of violence that would ordinarily fall within a category with a lower maximum award. In practice, this is often described as an ‘uplift’.

7.30 First, regulation 7 provides that the Category A maximum amount is available for acts of violence in Categories B, C and D where:

• the victim has suffered a very serious physical injury

• the victim has been infected with a very serious disease or

• the applicant has been the victim of related criminal acts being acts of indecent assault or sexual penetration.

7.31 The Regulations define ‘very serious injury’ as ‘actual physical bodily harm to the body of a permanent or long term duration that involves loss of a body function, disfigurement of a part of the body, total or partial loss of a part of the body, loss of a foetus or loss of fertility’.^[33]

7.32 ‘Very serious disease’ is defined as ‘a disease that is life threatening in nature and includes HIV’.^[34]

7.33 Secondly, regulation 8 provides that the Category B maximum is available for acts of violence in Category C or D where the victim was a child, elderly or impaired at the time of the act of violence and:

• the victim has suffered a serious injury

• the victim has suffered deprivation of liberty or

• the applicant has been the victim of related criminal acts of violence.

7.34 ‘Serious injury’ is not defined in the Regulations. However, VCAT has held that ‘serious’ should be given its ordinary dictionary meaning of ‘not slight or negligible’^[35] or something more than ‘superficial or trifling’.^[36]

7.35 In Moisidis v Victims of Crime Assistance Tribunal,^[37] VCAT found that the applicant suffered from a ‘serious injury’ due to his ongoing need to take Panadeine Forte for neck pain, his difficulties moving his neck and the fact that he continued to experience a buzzing sound in his ears and had severe headaches approximately three to four times a week.^[38] VCAT also took into account the fact that he had symptoms of post-traumatic stress, which could develop into a post-traumatic stress disorder.^[39]

7.36 In contrast, in Tucker v Victims of Crime Assistance Tribunal,^[40] VCAT found that a small bite wound requiring stitches and two courses of antibiotics did not constitute a ‘serious injury’. This was because, despite leaving a residual mark, the injury presented no further complications nor was there any suggestion of a diagnosed mental disorder flowing from the incident.^[41] VCAT also noted that the injury had not required any inpatient treatment and ‘it was well on its way to healing in a single month’.^[42]

7.37 Thirdly, regulation 9 provides that the Category C maximum amount is available for Category D acts of violence where:

• the victim was a child, elderly or impaired at the time of the act of violence or

• the applicant has been the victim of related criminal acts of violence.

Treatment of ‘related criminal acts’

7.38 Under the Act, ‘related criminal acts’ can be treated as a single act of violence for the purposes of making an award.^[43]

7.39 Criminal acts are considered ‘related’ in the following circumstances:^[44]

• They were committed against the same person and they occurred at approximately the same time.

• They were committed against the same person, they occurred over a period of time and they were committed by the same person or group of people.

• They were committed against the same person and they share some other common feature.

• They each contribute to the injury or death for which an application is made; or

• VOCAT considers that they ought to be treated as related criminal acts.

7.40 The effect of the ‘related criminal acts’ provision is to reduce the amount of financial assistance payable to a victim of multiple related crimes.^[45]

7.41 However, VOCAT has the discretion not to treat ‘related criminal acts’ as a single act if it considers that in ‘the particular circumstances of [the] acts, they ought not to be treated as related’.^[46]

7.42 Furthermore, as outlined above, there are circumstances in which the existence of a series of ‘related criminal acts’ can increase the amount of special financial assistance available. To summarise, these circumstances are as follows:

• Where the applicant is a victim of a series of related criminal acts falling within Category D, the maximum award available is increased from the Category D maximum amount ($650) to the Category C maximum amount ($1300).^[47]

• Where the applicant is a victim of a series of related acts of indecent assault or sexual penetration, the maximum award available for acts falling within Category B ($3250), Category C ($1300) or Category D ($650) is increased to that of Category A ($10,000).^[48]

• Where the applicant is the victim of a series of related criminal acts and they were a child, elderly or impaired at the time that any of those acts was committed, the maximum award available for acts falling within Category C ($1300) or Category D ($650) is increased to the maximum available in Category B ($3250). ^[49]

How do the categories and quantum of awards affect victims of family violence?

7.43 As this part outlines, victims of family violence appear to receive fewer awards and lesser amounts of assistance from VOCAT than other victims of crime.

7.44 This is most likely due to the Act’s conception of a criminal act as an ‘isolated random act of a deviant stranger’^[50] rather than something that can occur over a long period of time and within an intimate setting. As Victoria Legal Aid submitted to the Victorian Royal Commission into Family Violence (the Royal Commission), the Act is better suited to ‘one-off’ acts of violence where the victim and perpetrator are not known to each other.^[51]

7.45 This submission is reflected in the categories and quantum of awards available under the Act. In particular, the Royal Commission noted that the ‘related criminal acts’ provision and the special financial assistance categories do not sufficiently take into account the cumulative harm of family violence.^[52]

7.46 This part considers the difficulties that these provisions present for victims of family violence, including children.

Prevalence of awards for family violence victims

7.47 In the VOCAT Annual Report 2015–16, VOCAT recorded 388 applications for assistance due to family violence. Of those applications for assistance, VOCAT records that it made 113 awards.^[53] This means that 29 per cent of family violence applications were granted.

7.48 This may be compared to the numbers recorded in respect of other categories of offence. In the 2015–2016 financial year, 69 per cent of applications made concerning assault were granted,^[54] 76 per cent concerning robbery were granted^[55] and 67 per cent concerning rape were granted.^[56]

7.49 These numbers appear to indicate that applications for assistance in relation to family violence tend to be less successful than those made in relation to other criminal acts. It is not clear why this is the case. The difficulties that victims of family violence encounter in relation to the eligibility test, as discussed in the previous chapter, may contribute to the relatively low number of successful applications for this group of victims.

7.50 It should, however, be noted that the data may not represent the full picture. VOCAT noted in its Annual Report 2015–16 that it only began recording the number of applications lodged in respect of family violence part way through the 2015–2016 financial year. This means that the numbers reported do not represent a full year of applications.

7.51 Preliminary consultations also indicated that the way that family violence matters are currently recorded is predominantly based on whether or not the applicant describes the ‘act of violence’ as ‘family violence’. This means that some applications identified as relating to physical or sexual assault may also relate to family violence.

Quantum of awards for family violence victims

7.52 There is limited data on the amount of financial assistance usually received by victims of family violence.

7.53 However, the Royal Commission did identify some aspects of the scheme which may result in victims of family violence receiving smaller awards compared to victims of other criminal acts. These were:

• the ‘related criminal acts’ provision

• the categories of special financial assistance.

7.54 These issues are discussed further below.

The related criminal acts provision

7.55 As mentioned above, the Act provides that a series of ‘related criminal acts’ can be considered a single criminal act if they ‘occurred over a period of time and were committed by the same person or group of persons’.^[57]

7.56 This provision can operate to disproportionately reduce the awards received by victims of family violence.^[58] This is because ‘Domestic violence, almost by definition, will involve repeated acts of abuse by the same offender’.^[59]

7.57 As the Magistrates’ Court and Children’s Court jointly submitted to the Royal Commission, the related criminal acts provision means:

that a victim of long-term, chronic family violence (a series of related acts) is placed on an equivalent footing to someone who has been injured in a one-off assault, for example in a brawl between strangers.^[60]

7.58 As part of their report into family violence, the Australian Law Reform Commission and New South Wales Law Reform Commission received a submission from the Wirringa Baiya Aboriginal Women’s Legal Centre Inc, stating that:

… it is grossly unfair and unjust that a victim of multiple acts of violence should be disadvantaged by the fact that her offender happens to be the same person to another applicant who was the victim of different acts of violence committed by different offenders.^[61]

7.59 Forster illustrates this point with the example of a retailer who is the victim of a series of robberies by different offenders.^[62] While the acts of violence perpetrated against such a victim might be very similar in nature, the victim would be unlikely to have their claim reduced due to the robberies having been carried out by different perpetrators.^[63] In contrast, a victim of a series of acts of family violence perpetrated by the same family member or group of family members, would be likely to receive a reduced award.^[64]

7.60 Despite the issues discussed here, preliminary consultations undertaken by the Commission indicated that the fact that the ‘related criminal acts’ provision enables victims of family violence to make only one application, rather than multiple, can benefit the applicant by simplifying the process. Nevertheless, this benefit was often seen to be outweighed by the drawback of having a victim’s claim reduced.

Limitations of special financial assistance for family violence victims

7.61 Another key issue raised in the Royal Commission was that the special financial assistance categories do ‘not sufficiently take into account the cumulative harm of individual acts of violence as a result of experiencing persistent and protracted violence’.^[65]

7.62 This is because the relevant categories are based on the severity of a single offence, rather than the overall impact of a pattern of abuse.^[66]

7.63 The Royal Commission found that victims of family violence who are not victims of criminal acts in the higher categories, such as attempted murder or offences involving sexual penetration (Category A):

… may only be eligible for the amount tied to the ‘less serious’ offences in perhaps category D or C—despite potentially having endured these ‘less serious’ offences over a long period of time.^[67]

7.64 The Royal Commission heard from one witness who made two separate applications to VOCAT, one for a rape by a stranger and one in respect of family violence. She received an award of $10,000 for the rape and $1000 for the family violence. The victim stated that she found it ‘odd that [family violence] weighed less on the scale’, considering the devastating effect the family violence had had on her life compared to the rape ‘which was horrible … but … was one night of [her] life’.^[68]

7.65 In their submission to the Royal Commission, the Magistrates’ Court and the Children’s Court also provided the example of a Koori woman who had endured years of physical and psychological abuse by her former partner, only to receive $1300 in special financial assistance because the acts of violence that she had experienced fell within Category C.^[69]

7.66 While the maximum award for a category of special financial assistance can be increased where there has been a series of ‘related criminal acts’, the Magistrates’ Court and Children’s Court pointed out to the Royal Commission that this can only be done in limited circumstances.^[70]

7.67 As mentioned above, a series of ‘related criminal acts’ will only operate to increase the maximum award available where those acts fall within Category D (increasing the maximum to Category C),^[71] where the acts constitute indecent assault or sexual penetration^[72] or where the victim was a child, elderly or impaired at the time of the acts.^[73]

7.68 Another concern with the availability of special financial assistance under the Act is that it may not adequately account for the experiences of child family violence victims.

7.69 The fact that special financial assistance can only be awarded to primary victims means that many child family violence victims are unable to access it. This is because children often experience family violence by hearing, witnessing or otherwise being exposed to it, rather than by having the violence directly perpetrated against them. As a consequence, many child victims are classified as secondary or related victims under the Act.

7.70 Further, even where a child is recognised as a primary victim and therefore able to claim special financial assistance, the categories of special financial assistance do not sufficiently acknowledge the long-term and far-reaching consequences of experiencing family violence as a child. While being a child at the time of the act of violence enables a primary victim to be eligible for a higher maximum award of special financial assistance

(an ‘uplift’), this is only in limited circumstances; where the act of violence would ordinarily fall in Category C or D and the child victim also:

• suffered a serious injury

• was the victim of related criminal acts of violence or

• suffered a deprivation of their liberty.^[74]

Discussion and options for reform

7.71 In order to ensure that the Act takes into account the cumulative harm experienced by victims of family violence, consideration could be given to amending both the ‘related criminal acts’ provision and the special financial assistance categories. This part provides different options for reform with respect to these two parts of the scheme.

Reframing the ‘related criminal acts’ provision

7.72 One way to overcome some of the issues outlined in this chapter is to reframe the ‘related criminal acts’ provision so that it does not unfairly affect victims of family violence.

7.73 The Australian Law Reform Commission and New South Wales Law Reform Commission in their joint report, Family Violence—A National Legal Response,^[75] recommended that victims’ compensation schemes should not provide that acts are ‘related’ merely because they are committed by the same offender.^[76]

7.74 This recommendation could be implemented by adding other criteria to the circumstances in which acts carried out by the same perpetrator or group of perpetrators are considered ‘related’. For example, section 4(a) of the Act could be amended to require that the acts were committed by the same person and that they share some other common factor in order to be ‘related’, rather than these being separate and distinct criteria as is currently under the Act.

7.75 The recommendation of the Australian Law Reform Commission and New South Wales Law Reform Commission could also be implemented by removing the reference to the same perpetrator or perpetrators in subsection 4(a)(ii) of the Act all together.

7.76 Both of these options would reduce the circumstances in which a victim of family violence would have her or his claim for multiple acts of violence reduced, due to the fact that those acts were performed by the same family member.

7.77 However, Forster argues that the recommendation of the Australian Law Reform Commission and New South Wales Law Reform Commission does not go far enough. She writes that the other grounds that are used to collapse multiple crimes into a single crime would still disproportionately affect victims of family violence.^[77] This is because acts of family violence frequently share other ‘common factors’. For example, ‘the acts of violence are often similar (whether physical, sexual, emotional or economic) and typically occur … in the same location (the family home)’.^[78]

7.78 This means that even if the reference to the same perpetrator in section 4 of the Act were removed, related acts of family violence may still be treated as a single act. This could be because they ‘share some other common factor’ under subsection 4(1)(a)(iii) or because the ‘Tribunal considers that they ought to be treated as related criminal acts’ under subsection 4(1)(c) of the Act.

7.79 In light of these concerns, another option could be to exclude family violence from the operation of the ‘related criminal acts’ provision. Alternatively, the Act could be amended so that only acts of violence committed at the same time are considered ‘related’.

7.80 The Australian Capital Territory legislation offers another possibility. Section 44(2) of the Victims of Crime (Financial Assistance) Act 2016 (ACT) provides two examples of related criminal acts. Offences are considered to be related if they involve the same offender and same primary victim; or if the offences are contemporaneous or near contemporaneous (that is, they happen at the same time, or nearly so). However, section 44(3) of that Act requires only that related acts of violence be treated as a single act in three circumstances:

• where the series of offences are (or are likely to be) part of a single ongoing offence

• where treating the acts separately would result in the applicant receiving an amount of financial assistance that is disproportionate to the totality of harm that they suffered

• in circumstances prescribed by regulation.

7.81 This model addresses some of the unfairness of the Victorian Act by separating the circumstances in which multiple acts are considered related, and those in which they must be treated as a single act. This shifts the emphasis away from the similarity between the acts, to a consideration of the nature of the crime and the severity of the harm suffered. In doing so, this approach is less likely to result in victims of family violence having their claims reduced. This is because, while acts of family violence might be related, their cumulative harm can be significant.

Amending the special financial assistance categories

7.82 One way to ensure that the Act takes into account the cumulative harm of persistent and protracted family violence is to amend the special financial assistance categories so that a higher award is available for a series of acts of family violence.

7.83 In their submission to the Royal Commission, the Magistrates’ Court and Children’s Court recommended that the regulations be amended to include a series of acts of family violence as a circumstance in which the Category A maximum is available for offences that fall within Categories B, C and D.^[79]

7.84 This could be achieved by adding ‘family violence’ to regulation 7(c) of the Regulations as one of the circumstances (along with indecent assault and sexual penetration) in which a series of criminal acts can be compensated by the Category A maximum award.^[80]

7.85 An alternative option is to explicitly recognise a pattern of family violence within one of the higher categories of special financial assistance. The Northern Territory victims’ assistance scheme recognises ‘domestic violence injuries’ as a distinct compensable category of injury for which a victim can receive a lump sum. ‘Domestic violence injuries’ are defined as injury resulting from a series of three or more related criminal acts committed by an offender with whom the victim is in a domestic relationship, or stalking in contravention of a domestic violence order. For this category of compensable injury, victims can be awarded between $7500 and $10,000. This approach could be adopted in the Victorian legislation by inserting a series of related acts of family violence into Category A or B.

7.86 Forster suggests a similar but more detailed model that takes into account the severity of family violence, as well as the cumulative effect of a pattern of abuse. She recommends that different forms of family violence should give rise to eligibility for different categories of special financial assistance. Forster contends that a series of acts of family violence of a sexual or physical nature should occupy the category with the highest award range, a series of non-physical acts of family violence should occupy the second highest award range, and victims of a single act of family violence should be eligible for the lowest range.^[81]

7.87 Forster’s model could be implemented in the Victorian scheme either by adopting a separate scale of categories that specifically applies to family violence or by assigning different forms of family violence (based on the type of act(s) and whether there was a pattern) to the special financial assistance categories currently listed in the Regulations. For example, a pattern of family violence that involves physical or sexual acts of violence could be listed in Category A, a pattern of other forms of family violence in Category B and single acts of family violence that do not already fall into Category A or B could be listed in Category C or D.

7.88 Another option, brought to the Commission’s attention during preliminary consultations, is to remove the categories of special financial assistance entirely, or at least in relation to victims of family violence. Under this approach, the maximum amount of special financial assistance for any application based on family violence would be $10,000. VOCAT would determine the appropriate award of special financial assistance based on a variety of factors, including the severity of the criminal acts, the severity of the injuries suffered and whether there was a pattern of abuse.

7.89 In addition, in order to ensure that the Act better takes into account the experience of child victims of family violence and the effect of that violence, the Act could be amended so that special financial assistance is available to all child victims of family violence, whether or not they are classified as primary victims under the Act. This would enable children to be able to access a lump sum payment no matter what form their experience of family violence takes.

7.90 The Regulations could also be amended so that the fact that a victim was a child at the time of the act of violence is an uplift category on its own. This is the approach in the Australian Capital Territory, which provides that where a victim is under 18 years old at the time of the offence, this alone is a ‘circumstance of aggravation’.^[82]

7.91 The Commission seeks the views of victims, persons affected, professionals, stakeholders and the community on how to better accommodate family violence within the categories and quantum of awards available under the Act. Specific questions are set out below.

1. Victims of Crime Assistance Act 1996 (Vic) ss 8(1) and 8A.

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2. Ibid s 10(1).

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3. Ibid s 13(1).

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4. Ibid s 12(1). Note any amount awarded for funeral expenses of the primary victim will be deducted from this amount.

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5. Ibid s 12(2).

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6. Ibid s 8(2).

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7. Ibid s 8(3).

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8. Ibid s 8A.

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9. Ibid s 10(2).

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10. Ibid s 10(3).

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11. A ‘family member, in relation to a person’ is defined in s 10A(3) of the Act as a spouse, domestic partner, former spouse, former domestic partner, a child who normally or regularly resides with that person, a person who is or has been ordinarily a member of the household of that person or a relative of that person. ‘Relative’ is further defined in s 10A(4) of the Act as a father, mother, grandfather, grandmother, step-father, step-mother, father-in-law, mother-in-law, son, daughter, grandson, granddaughter, step-son, step-daughter, son-in-law, daughter-in-law, brother, sister, half-brother, half-sister, brother-in-law, sister-in-law, uncle, aunt, uncle-in-law, aunt-in-law, nephew, niece, cousin, or anyone who would be a relative of the domestic partner if they were married.

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12. Victims of Crime Assistance Act 1996 (Vic) s 10A(1).

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13. Ibid s 10A(2).

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14. Ibid s 13(2).

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15. Ibid s 13(4).

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16. Ibid s 15.

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17. Ibid s 12(1).

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18. Ibid ss 8(4) and 13(3)

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19. [2006] VCAT 1061 (9 June 2006).

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20. Ibid [41]–[43].

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21. Ibid [51]–[63].

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22. [2011] VCAT 1237 (8 July 2011).

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23. Ibid [49].

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24. [2010] VCAT 2078 (23 December 2010).

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25. Ibid [81]–[82].

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26. See, eg, Mendez v Victims of Crime Assistance Tribunal [2011] VCAT 1237 (8 July 2011) [49]-[51]; MK v Victims of Crime Assistance Tribunal [2013] VCAT 1582 (10 September 2013) [78]; Hay v Victims of Crime Assistance Tribunal [2002] VCAT 45 (15 February 2002) [26]–[29]; JM v Victims of Crime Assistance Tribunal [2002] VCAT 496 (17 June 2002) [31].

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27. [2011] VCAT 1237 (8 July 2011).

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28. Ibid [50].

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29. [2002] VCAT 45 (15 February 2002).

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30. Ibid [27]–[29].

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

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32. Ibid s 1(2)(b). See also Victoria, Royal Commission into Family Violence, Report and Recommendations Volume IV (2016) 79.

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33. Victims of Crime Assistance (Special Financial Assistance) Regulations 2011 (Vic) reg 5.

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34. Ibid.

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35. Tucker v Victims of Crime Assistance Tribunal [2009] VCAT 2453 (19 November 2009) [13].

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36. Moisidis v Victims of Crime Assistance Tribunal [2006] VCAT 1919 (20 September 2006) [17].

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37. Ibid.

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38. Ibid [18].

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39. Ibid [19].

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40. [2009] VCAT 2453 (19 November 2009).

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41. Ibid [14].

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42. Ibid.

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43. Victims of Crime Assistance Act 1996 (Vic) s 4(4).

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44. Ibid s 4(1)(a), (b) and (c).

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45. Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper No 8 (Australian Domestic and Family Violence Clearinghouse 2010) 9; 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, 198–9.

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46. Victims of Crime Assistance Act 1996 (Vic) s 4(1)(a).

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47. Victims of Crime Assistance (Special Financial Assistance) Regulations 2011 (Vic) reg 9(a).

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48. Ibid reg 7(c).

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49. Ibid reg 8(b).

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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, 192–3.

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51. Victoria Legal Aid, Submission No 919 to Royal Commission into Family Violence, Royal Commission into Family Violence (June 2015) 53.

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

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53. Victims of Crime Assistance Tribunal, Annual Report 2015–16 (2016) 50–1.

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54. VOCAT received 3092 applications in relation to assault, 2161 of which were granted: ibid.

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55. VOCAT received 313 applications in respect of robbery, 240 of which were granted: ibid.

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56. VOCAT received 273 applications in relation to rape, 183 of which were granted: ibid.

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57. Victims of Crime Assistance Act 1996 (Vic), ss 4(1)(a)(ii) and 4(4).

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58. 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, 199–200.

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59. Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper No 8 (Australian Domestic and Family Violence Clearinghouse 2010) 9.

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60. 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) 59.

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61. Wirringa Baiya Aboriginal Women’s Legal Centre Inc, cited in Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—A National Legal Response: Final Report, Report No 114 and NSWLRC Report No 128 (2010) 1392.

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62. 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, 200.

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63. Ibid.

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64. Ibid.

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

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66. Women’s Legal Service Victoria, Submission 940 (No 1) to Royal Commission into Family Violence, Royal Commission into Family Violence (19 June 2015) 53.

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67. Victoria, Royal Commission into Family Violence, Report and Recommendations Volume IV (2016) 79.

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68. Ibid.

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69. 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) 61–2.

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70. Ibid 59.

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71. Victims of Crime Assistance (Special Financial Assistance) Regulations 2011 (Vic) reg 9(a).

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72. Ibid reg 7(c).

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73. Ibid reg 8(b).

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74. Ibid.

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75. 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).

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76. Ibid 1395 (Recommendation 29-5). The ALRC reiterated this recommendation in its submission to the VLRC in relation to the Victims of Crime in the Criminal Trial Process Reference: 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.

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77. 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, 199.

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78. Ibid 199–200.

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79. 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) 50.

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80. Ibid (Recommendation 25).

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81. 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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82. Victims of Crime (Financial Assistance) Act 2016 (ACT) s 8(1)(f)(ii).

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