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

8. Form and timing of applications

Introduction

8.1 This chapter outlines how an application is made to the Victims of Crime Assistance Tribunal (VOCAT) under the Victims of Crime Assistance Act 1996 (Vic) (the Act) and the time periods within which an application must be brought. The time limit for bringing an application is distinct from the time frames for making awards, which are discussed in Chapter 11.

8.2 While these issues are not specifically covered in the terms of reference, an overview of this process is included because it is an integral part of making an application for financial assistance to VOCAT.

8.3 The Victorian Royal Commission into Family Violence (the Royal Commission) specifically identified the time limit for making an application as a potential barrier for victims of family violence.^[1]

8.4 This chapter begins by outlining the required form of an application for assistance to VOCAT and the two-year time period for the making of an application.

8.5 This chapter then discusses the implications of the two-year time limit for applicants who are victims of family violence. In particular, the chapter notes the difficulties that can arise, given the higher rate of late applications among victims of family violence.

8.6 Finally, this chapter provides options for reform with respect to the time limit, and poses questions for consideration.

Form of application

8.7 An application for assistance to VOCAT must be made in writing in the prescribed form.^[2] A copy of this form, together with guidance information, is provided at Appendix C. The form must be accompanied by documentary evidence.^[3]

8.8 If the applicant has not reported the act of violence to the police, the form must also be accompanied by a statutory declaration by the applicant setting out the circumstances of the act of violence and the reasons that they did not report the matter.^[4]

8.9 The form has 12 parts:

1) Details of the applicant.

2) Section to be completed if the claim is being made on behalf of a child or a person with a disability.

3) The circumstances of the act of violence, including the perpetrator’s name if known.

4) Details of any reporting to police, including station, police officer, rank and date, and whether criminal proceedings have commenced against the perpetrator.

5) The effects resulting from the act of violence, including any physical and psychological effects, as well as whether the applicant has experienced grief, stress or trauma. The form also asks whether the applicant attended hospital.

6) Whether the applicant would prefer to have the matter resolved ‘on the papers’ or if they would like a hearing before VOCAT. If the applicant wishes to have a hearing, they can ask for the proceedings to be conducted in closed court.

7) Whether the applicant has applied for assistance under any other schemes, including the Victims Assistance Program, Workcover, the Transport Accident Commission, as well as any benefits the applicant has received or is entitled to receive under a superannuation or insurance scheme.

8) The type of assistance that the applicant wishes to claim from VOCAT, including expenses incurred, expenses to assist in recovery and special financial assistance. The applicant must indicate whether they are applying as a primary, secondary or related victim, or whether they are claiming funeral expenses only.

9) If a death was caused by the act of violence, the applicant must also give details of the deceased.

10) If the applicant is a related victim, they must list every person who they believe may be or may claim to be a related victim, and they can also apply for assistance with funeral expenses.

11) The applicant’s authorisation for VOCAT to obtain any other evidence necessary.

12) An acknowledgment by the applicant that all information provided is true and correct.

8.10 The form explicitly asks whether the alleged offender is a family member or domestic partner of the victim and asks the applicant to specify their relationship to them. It also asks if there are any intervention orders relating to the matter.

8.11 An application for assistance and the supporting documentation can be lodged in hard copy or online via the VOCAT website.^[5]

8.12 Hard-copy applications for assistance must be lodged with or posted to the VOCAT venue closest to the applicant’s place of residence.^[6] However, if there are multiple applicants in respect of one act of violence, it must be the venue closest to where the act of violence was committed.^[7] If the Chief Magistrate nominates a venue, then the application should be lodged at that venue.^[8]

8.13 A hard-copy application must lodged with the Registrar at the Melbourne Magistrate’s Court if the applicant resides outside Victoria, is a related victim, or is a primary or secondary victim who is aware of the existence of a related victim.^[9]

8.14 If an applicant applies online, their application will automatically be lodged with the correct venue.^[10]

8.15 The VOCAT website provides information for applicants about:

• how to lodge an application

• the different victim categories under which they can apply

• the details required in relation to the act(s) of violence

• the police reporting and the injury suffered

• the required supporting documentation

• how the VOCAT process works.^[11]

8.16 The online application page also gives details of services that can help an applicant to complete the form, including the contact number for the Victims of Crime Helpline.^[12]

8.17 There is no fee for filing an application for assistance, whether it is done online or in hard copy.^[13] In addition, a lawyer cannot charge an applicant costs in respect of an application, unless those costs are approved by VOCAT.^[14]

Time limits

8.18 An application for financial assistance must be made within two years of the act of violence occurring.^[15]

8.19 VOCAT is obliged to strike out applications made outside this two-year time limit, unless ‘it considers that, in the particular circumstances, the application ought not to be struck out’.^[16]

8.20 Where an applicant wishes to lodge an application outside the two-year time limit, she or he must request leave from VOCAT in addition to completing the usual form. An application for an extension of time is made via a statutory declaration in the prescribed form.^[17]

8.21 The form requires the applicant to set out her or his reasons for not lodging the application within the time limit and to attach supporting documentation.^[18] The applicant can state whether she or he wishes the time extension to be decided without appearing before VOCAT.^[19]

8.22 In deciding whether an out-of-time application ought not to be struck out in the ‘particular circumstances’, VOCAT must have regard to the following factors:^[20]

• the age of the applicant when the act of violence occurred

• whether the applicant is intellectually disabled^[21] or mentally ill^[22]

• whether the perpetrator of the act of violence was in a position of power, influence or trust in relation to the applicant

• the physical or psychological effect of the act of violence on the applicant

• whether the delay in making the application threatens VOCAT from being able to make a fair decision

• whether the applicant was a child at the time of the act of violence and she or he made the application for assistance within a reasonable time after turning 18

• all other circumstances that VOCAT considers relevant.

8.23 The case of FG v Victims of Crime Assistance Tribunal ^[23] provides an example of how these factors are used to determine whether an application should be heard out of time. In that case, VOCAT struck out the applicant’s claim because it was lodged approximately 25 to 30 years after the alleged occurrence of sexual abuse by her grandfather. However, the Victorian Civil and Administrative Tribunal (VCAT) set aside this decision, finding that in the ‘particular circumstances’ the application ought not to be struck out.

8.24 In arriving at this decision, VCAT took into account the fact that the applicant had been between five and 10 years old at the time of the offences and that her grandfather had been in a position of power and trust over her, which was compounded by her fear of being excluded from her large Koori kinship group. VCAT also considered the fact that the psychological effect of the abuse meant that the applicant took many years before she told anyone and that she had not been aware of her mental injury until relatively recently. In addition, VCAT found that the delay did not threaten the Tribunal’s capacity to make a fair decision, as there was sufficient evidence of the injury and the alleged perpetrator had died before the applicant had attained legal capacity.

8.25 Similarly, in J v Victims of Crime Assistance Tribunal,^[24] VCAT overturned VOCAT’s decision to strike out the applicant’s application, even though it was made 35 years after the alleged sexual abuse by her brother-in-law had occurred. VCAT considered the fact that the applicant was 13 to 18 years old when the acts of violence took place, the brother-in-law’s relative position of power as an adult family member and a teacher, and the particular dynamics of the applicant’s family, including her isolation from her siblings, their inability to discuss sex or emotions and their excessive respect for adults and teachers. VCAT also took into account the psychological evidence that the trauma of the incidents had contributed to the applicant’s delay in making a claim.

8.26 In contrast, in the cases of S v Victims of Crime Assistance Tribunal ^[25] and BFK v Victims of Crime Assistance Tribunal,^[26] VCAT upheld VOCAT’s decision to strike out the applications for being out-of-time. This was despite both applicants being a similar age to the applicant in J v Victims of Crime Assistance Tribunal when the acts of violence took place (17 and 18 years old respectively).

8.27 In S v Victims of Crime Assistance Tribunal, VCAT distinguished that case from J v Victims of Crime Assistance Tribunal on the basis that the perpetrator had not been in a position of power, influence or trust over the applicant and that there was no psychiatric evidence linking the trauma of the rape to the applicant’s delay in making an application.^[27]

8.28 In BFK v Victims of Crime Assistance Tribunal, VCAT found that the perpetrator had not been in a position of power, influence or trust over the applicant—despite being her boyfriend—due to the fact that he was ‘only one year older than her and … clearly troubled, rather than … calculating and controlling’.^[28] VCAT also held that the delay in making the application threatened the Tribunal’s ability to make a fair decision, particularly in light of the alleged perpetrator’s conflicting testimony and the lack of evidence supporting the applicant’s claims.

8.29 Beyond the specific factors listed in the Act, VOCAT also has discretion to consider ‘all other circumstances’.^[29] This catch-all provision is typically used to consider common law factors, such as the prospect of success of the substantive case.^[30]

8.30 However, the Act explicitly provides that VOCAT must not decide to further hear and determine an out-of-time application only because the applicant was unaware of Victoria’s victims of crime financial assistance scheme or the time limit.^[31]

Effect of the form on family violence victims

8.31 Preliminary consultations undertaken by the Victorian Law Reform Commission (the Commission) indicated that the application form is relatively straightforward and can often be completed without legal assistance. It was noted, however, that further requests for documentation by VOCAT can make the process more difficult to navigate and often can require legal assistance. VOCAT’s powers of investigation are discussed in Chapter 9.

8.32 One significant concern raised by stakeholders in relation to family violence victims and the application form was that it is tailored towards victims of a ‘one-off’ act of violence. The form uses singular language, such as ‘What was the act of violence/offence?’ and leaves a small space for the applicant to answer. It also asks for the ‘date of the act of violence’ and has a section for the time at which the act occurred. Although the form provides an option for putting in a span of dates, it also requires the applicant to insert a start and end date. The ‘reporting details’ section also asks singular questions, such as the date of the report and the police officer’s name. These issues reflect the considerations of context and continuity of family violence reviewed in Chapter 3.

8.33 These features of the form can make it difficult for victims of family violence to complete. They may be making an application for a series of acts that occurred over a long period of time, with no clear beginning or end, and which may have been reported multiple times to different police officers.

Effect of the time limit on family violence victims

8.34 As the Royal Commission noted, the time limit of two years on making an application to VOCAT can be a barrier for victims of family violence.^[32]

8.35 It can take victims of family violence a considerable amount of time to disclose their experiences.^[33] The reasons are complex. Many victims experience family violence, especially of a sexual nature, as shameful.^[34] This can hamper victims from pursuing financial assistance within the time limit.^[35] Some victims of family violence may also fear reprisal from their partners or ex-partners, hindering them from making a timely application.^[36]

8.36 Other victims of family violence might feel distrust towards the legal system, which can deter them from making a prompt application. Christine Forster writes that this is especially so for Aboriginal women, who are more likely to be unwilling to report family violence due to factors such as ‘a history of discrimination by institutional structures … [and] community pressure to keep the matter from the scrutiny of the government’.^[37]

8.37 For some victims of family violence, it may take a while to regain enough stability in their lives to even consider making a claim. The Royal Commission heard from one woman that the two-year time limit is:

no time at all to go through the emotional trauma of appealing to the Tribunal for compensation. It takes a lot of time and effort for a mother to gain a normality and routine in her life for herself and for her children.^[38]

8.38 It can also take a long time for victims of family violence to acknowledge what has happened to them or to understand the causal link between their injuries and the family violence.^[39] In addition, a substantial period of time may elapse between the act(s) of violence occurring and the victim developing an injury.

8.39 This is particularly an issue in relation to child victims of family violence, and especially where the violence is of a sexual nature. As Forster and Parkinson write, ‘the harm suffered by child sexual abuse victims ‘may not manifest itself until many years after the abuse.’^[40] For example, in the case of FG v Victims of Crime Assistance Tribunal, although the alleged sexual abuse took place in the 1980s, the applicant’s resulting mental injury did not appear until around 20 years later. ^[41]

8.40 The fact that it may take a victim of family violence longer to lodge an application for assistance with VOCAT means that the time limit of two years can have ‘a disproportionate impact on their eligibility for compensation’.^[42]

8.41 In deciding whether to grant an extension of time, section 29(3) of the Act allows VOCAT to consider certain factors that are relevant to family violence, such as whether the perpetrator was in a position of power, trust or influence over the applicant. However, on appeal, this factor has been interpreted narrowly by VCAT so as to exclude some situations of family violence. As mentioned above, in BFK v Victims of Crime Assistance Tribunal, VCAT held that the alleged perpetrator was not in a position of power, trust or influence over the applicant even though he was her boyfriend at the time of the act of violence.^[43]

8.42 VOCAT is also able to have regard to ‘whether the applicant was a child at the time of the occurrence of the act of violence and the application was made within a reasonable time after he or she reached the age of 18.’^[44] Although this factor acknowledges that children may experience difficulty in making an application while they are under 18, it may not assist child victims of family violence who take many years to come to terms the abuse that they have suffered if their delay is not considered ‘reasonable’.

8.43 Furthermore, while VOCAT frequently grants applications for an extension of time, preliminary consultations disclosed that the mere existence of a time limit can be a barrier for victims of family violence whose claims relate to events that occurred many years ago.

Discussion and options for reform

Ensuring that the form accounts for family violence

8.44 An option for reform to make the VOCAT application process easier and more accessible for victims of family violence is to use language that is not confined to singular acts of violence or singular reports to police. For example, the form could ask the applicant whether they are the victim of a single act of violence or a series of acts of violence.

8.45 In addition, the form could leave larger spaces for applicants who describe multiple acts of violence, so that they are able to describe the nature of the violence that they have encountered, the general time frame and the reporting details without being restricted to one or two-word answers.

Overcoming issues of timing

8.46 The Act could be amended in several ways to remove the difficulties facing victims of family violence in relation to the time limit.

8.47 One option is to increase the time limit for applications relating to family violence. This is the approach taken in the New South Wales legislation, which provides for a 10-year time limit for victims of domestic violence, child abuse or sexual assault.^[45] If the victim was a child at the time of the act of violence, then the 10-year time limit starts running from the day that they turn 18, rather than the act of violence.^[46] As such, this approach acknowledges that victims of family violence may need more time to make an application for assistance, as well the fact that the time needed by child victims may be even longer.

8.48 Another option is to add family violence to the list of factors in section 29(3) of the Act that VOCAT must consider when making a decision on whether or not to strike out a late application. This would ensure that VOCAT takes into account the impact of family violence on making a timely application, even where it does not find that a relationship of power, trust or influence existed. This approach is similar to that employed in the Northern Territory legislation, which requires the decision maker to specifically consider ‘whether the injury or death occurred as a result of sexual assault, domestic violence or child abuse’.^[47]

8.49 Christine Forster supports this latter approach^[48] because she does not think that the rationales for time limits apply in the context of family violence.^[49]

8.50 According to Forster, there are three reasons for imposing time limits. The first is that time limits are in the interests of fairness, certainty and public policy.^[50] She argues, however, that there is nothing fair or beneficial about obstructing victims of family violence in being able to apply for assistance.^[51]

8.51 The second reason is that it can be difficult to obtain evidence after a long period of time has elapsed.^[52] But, as Forster points out, this does not apply to family violence, where the most relevant evidence is usually from the parties themselves due to family violence so often occurring in an environment of secrecy.^[53]

8.52 The third reason for time limits is to prevent plaintiffs from ‘sleeping on their rights’.^[54] However, as explained above, there are many reasons why victims of family violence may not pursue redress in a timely fashion. This is partly due to the fact that unlike ‘stranger crimes’, the cultural norms that surround family violence ‘do not wholeheartedly condemn it as an unacceptable social behaviour’.^[55]

8.53 Based on these arguments, Forster writes that ‘an explicit exception such as that adopted by the Northern Territory seems the most beneficial option’.^[56]

8.54 There is another option: remove time limits completely for victims of family violence. In the New South Wales legislation, there is no time limit for a person to make an application for financial assistance if they are the primary victim of a sexual offence committed against them when they were under 18 years of age.^[57]

8.55 There are similar reasons for victims of child sexual abuse and victims of family violence making delayed applications for assistance, including feelings of shame, fear of retribution, and failure to understand what has happened to them.^[58] Therefore, there may be good reason to adopt New South Wales’ approach to victims of family violence in Victoria.

8.56 The Commission seeks the views of victims, persons affected, professionals, stakeholders and the community on these issues and options in relation to the form of the application and the time limit for bringing an application to better accommodate victims of family violence. Specific questions are set out below.

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

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2. Victims of Crime Assistance Act 1996 (Vic) s 26(1)(a); Victims of Crime Assistance Rules 2010 (Vic) r 6. The prescribed form is Form 1 (2016), also available at <www.vocat.vic.gov.au/application-assistance>.

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3. Victims of Crime Assistance Act 1996 (Vic) s 26(1)(b).

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4. Ibid s 26(2).

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5. Victims of Crime Assistance Tribunal, Lodging an Application (2016) <www.vocat.vic.gov.au/how-apply/lodging-application>. For the online application form, see Victims of Crime Assistance Tribunal, Application for Assistance, <http://vocat.iapply.com.au>.

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6. Victims of Crime Assistance Rules 2010 (Vic) r 7(1)(b).

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7. Ibid.

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8. Ibid r 7(1)(a).

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9. Ibid r 7(2).

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10. Victims of Crime Assistance Tribunal, Where to Apply (2016) <www.vocat.vic.gov.au/how-apply/where-apply>.

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11. Victims of Crime Assistance Tribunal, Lodging an Application (2016) <www.vocat.vic.gov.au/how-apply/lodging-application>.

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12. Victims of Crime Assistance Tribunal, Application for Assistance, Before You Apply (2016) <http://vocat.iapply.com.au/#/form/537c03cfdfc1490668c3b672>.

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13. Victims of Crime Assistance Tribunal, Lodging an Application (2016) <www.vocat.vic.gov.au/how-apply/lodging-application>.

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14. Victims of Crime Assistance Act 1996 (Vic) s 48(5).

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15. Ibid s 29(1).

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16. Ibid s 29(2).

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17. Victims of Crime Assistance Tribunal, Melbourne Magistrates’ Court, Practice Direction No. 2 of 2016 — Extension of Time for Lodgement, 1 May 2016.

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18. Victims of Crime Assistance Tribunal, Application for Extension of Time Form (2016), <www.vocat.vic.gov.au/application-extension-time-form>.

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19. Ibid.

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20. Victims of Crime Assistance Act 1996 (Vic) s 29(3).

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21. ‘Intellectually disabled’ within the meaning of the Disability Act 2006 (Vic).

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22. ‘Mentally ill’ within the meaning of the Mental Health Act 2014 (Vic).

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23. [2011] VCAT 2449 (1 September 2011).

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24. [2002] VCAT 532 (24 July 2002).

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25. [2002] VCAT 1257 (7 November 2002).

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26. [2017] VCAT (15 March 2017).

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27. S v Victims of Crime Assistance Tribunal [2002] VCAT 1257 (7 November 2002) [22].

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28. Ibid [117].

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29. Victims of Crime Assistance Act 1996 (Vic) s 29(3)(g).

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30. BFK v Victims of Crime Assistance Tribunal [2017] VCAT 289 (15 March 2017); J v Victims of Crime Assistance Tribunal [2002] VCAT 532 (24 July 2002).

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31. Victims of Crime Assistance Act 1996 (Vic) s 29(4).

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

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33. 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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34. 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, 197–8.

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35. Ibid 198. See also Ian Freckelton, ‘Criminal Injuries Compensation for Domestic Sexual Assault: Obstructing the Oppressed’ in Chris Sumner et al (eds.), Victimology (Australian Institute of Criminology, 1996) 246–7.

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36. 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.

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37. Ibid 195–6.

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

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39. Ibid 198.

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40. 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.

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41. FG v Victims of Crime Assistance Tribunal [2011] VCAT 2449 (1 September 2011) [53].

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42. 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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43. BFK v Victims of Crime Assistance Tribunal [2017] VCAT 289 (15 March 2017) [117].

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44. Victims of Crime Assistance Act 1996 (Vic) s 29(3)(f).

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45. Victims Rights and Support Act 2013 (NSW) s 40(5).

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46. Ibid.

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47. Victims of Crime Assistance Act 2006 (NT) s 31(3)(a).

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48. 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, 197.

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49. Ibid.

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50. Ibid.

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51. Ibid.

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52. Ibid.

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53. Ibid.

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54. Ibid.

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55. Ibid 197.

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56. Ibid 198.

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57. Victims Rights and Support Act 2013 (Vic) s 40(7).

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58. For the reasons that victims of sexual abuse encounter difficulties with time limits, see Christine Forster, ‘Good Law or Bad Lore? The Efficacy of Criminal Injuries Compensation Schemes for Victims of Sexual Abuse: A New Model of Sexual Assault Provisions’ (2005) 32 University of Western Australia Law Review 264, 279–80. To compare these to those of victims of family violence, see 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, 197–8.

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