Civil and Administrative Tribunal

  • ZHC v Victims of Crime Assistance Tribunal (Review and Regulation) (Corrected) [2022] VCAT 333 (30 March 2022) – Victorian Civil and Administrative Tribunal
    Administrative review’ – ‘Application for assistance’ – ‘Children’ – ‘Coercive control’ – ‘Decision not to pursue charges’ – ‘Financial abuse’ – ‘People affected by trauma’ – ‘Physical violence’ – ‘Pregnant victim’ – ‘Reasonable assistance’ – ‘Reasonable time’ – ‘Special circumstances’ – ‘Threats to kill’ – ‘Victims of crime assistance act 1996

    Proceedings: Review of decision to strike out the victim’s application for assistance pursuant to section 52 of the Victims of Crime Assistance Act 1996 (‘the VOCA Act’).

    Issue: Was the act of violence reported within a reasonable time?

    Facts: Under Section 52 of the VOCA Act, an award of assistance must be refused if the Tribunal is satisfied that an act of violence was not reported to police within a reasonable time, or that the applicant failed to provide reasonable assistance to investigators. The section does not apply if the Tribunal considers a delay in reporting, or lack of assistance, to be the result of the applicant’s ‘special circumstances’ [3]. In May 2021, the victim’s application was refused on the basis that she had failed to report acts of violence by her former partner within a reasonable time. While the victim had reported a protection order breach in December 2020, materials provided to the Tribunal alleged a history of family violence commencing in 2016 [4].

    Decision and reasoning: The Tribunal was not satisfied that the victim’s application ought to be refused under section 52 of the VOCA Act. The Tribunal found that the acts of violence were reported to police within a reasonable time. The Tribunal highlighted paragraphs (c), (d) and (e) of section 53 of the VOCA Act, which provide that in considering whether an act of violence was reported within a reasonable time, the Tribunal may consider:

    (c) ‘whether the person who… is alleged to have committed, the act of violence was in a position of power, influence or trust in relation to the victim’
    (d) whether the victim was threatened or intimidated by the person who… is alleged to have committed, the act of violence’
    (e) ‘the nature of the injury alleged to have been suffered by the victim’ [12]-[14].

    Considering paragraph (c), the Tribunal noted that the victim’s former partner exerted power and influence her through acts of physical violence, which escalated during her pregnancy, and by controlling her finances. Considering paragraph (d), the victim felt intimidated and threatened by her former partner. This was evidenced by a protection order application, and evidence that the victim’s former partner had made threats to harm or kill the victim or their child if she left the relationship. Considering paragraph (e), the victim sustained serious physical injuries due to her former partner’s assaults, including cuts, broken teeth, and post-traumatic stress disorder [15]-[19].

    The Tribunal was not required to consider whether the victim had provided ‘reasonable assistance’, or whether ‘special circumstances’ existed. However, the Tribunal explained that a decision not to pursue charges or provide a statement to assist police to arrest, investigate or prosecute does not amount to a failure to provide reasonable assistance [30]-[31].

    Furthermore, the Tribunal noted that the facts exemplified ‘special circumstances’ [43]. Due to the nature of the violence perpetrated against the victim, the fact that the couple lived together, and the applicant’s repeated contravention of protection orders, the victim was unlikely to make immediate reports to police [44]. Rather, the victim prioritised ‘more effective mechanisms that would keep her safe’, such as a protection order [45]-[48].