DSK v Commissioner of Victims Rights

[2019] NSWCATAD 170

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DSK v Commissioner of Victims Rights [2019] NSWCATAD 170
Hearing dates:	9 August 2019
Date of orders:	21 August 2019
Decision date:	21 August 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	The decision of the Senior Assessor dated 18 December 2018 is affirmed.
Catchwords:	Victims Rights and Support – administrative review – Time limits for an application for victims support – act of violence
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Limitation Act 1969 Victims Rights and Support Act 2013 Victims Rights and Support Regulation 2013 Administrative Decisions Review Act 1997
Cases Cited:	CKP v Commissioner of Victims Rights [2016] NSWCATAD 108
Category:	Principal judgment
Parties:	DSK (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: DSK (Applicant in person) Victims Services Legal (Respondent)
File Number(s):	2019/00037237
Publication restriction:	A non-publication Order is made under s 64 (1) of the Civil and Administrative Tribunal Act 2013 (No. 2) (NSW) in respect of the names of private individuals, and other information which might identify them.

REASONS FOR DECISION

1. These proceedings were commenced by an Application for Administrative Review (‘the Application”) filed on 4 February 2019, in which the applicant sought administrative review of a decision made by a delegate of the Respondent in respect of an Application for Victims Support. The applicant is known by the pseudonym ‘DSK’.

Background

Application for Victims Support

2. On 1 September 2015, DSK lodged an Application for Victims Support under the provisions of the Victims Rights and Support Act 2013 (“the Act”), which alleged that he was the primary victim of an act of violence in the nature of assault and “physical and emotional abuse” that was perpetrated by his parents over a period of time from 1 January 1973 to 24 August 2015, at Sydney in New South Wales, as follows:

I am 47 years old. My parents have been psychologically/emotionally abusive toward me all my life. They were divorced when I was 9. I have one sister who is 2 years older than me. My mother has been the main abuser. Initially she was physically abusive as well, but from the age of 17 the abuse has been exclusively psychological and has involved guilt, manipulation, chronic invalidation, parentification, denial and gaslighting, blaming, scapegoating, shaming, name calling, isolation, excommunication, threats, arbitrary and unpredictable inconsistency. I am now 47 years old and am on a disability pension after a lifetime of depression and anxiety.

3. The application alleged that DSK suffered a psychological injury as a result of the act of violence and that he sought counselling, financial assistance for immediate needs or economic loss and a recognition payment.

4. The application indicates that the act of violence was not reported to NSW Police, because DSK was not aware of his rights until recently and he stated that it has taken his whole life to learn that he is entitled.

5. A police COPS Event Report number E58675011 was created on 10 September 2015, indicates:

On Thursday, 10.9.15 the VIC attended Dee Why Police Station to report historic emotional and physical abuse from his mother between the ages of 6 to 17 years old. Police established the physical abuse never amounted to more than common assault. An example he explained was when his mother noticed water on the bench and started repeatedly slapping him and his sister until they apologised. He can’t remember how old he was at this time.

The VIC made it clear that his main concern was the psychological damage caused to him over time from constant belittling. He receives regular counselling from a psychologist but feels his whole life is ruined due to his lack of self-worth.

The VIC and mother have not resided together since he was 17 and only contact each other on family occasions.

The VIC asked police about the possibility of an AVO. Police made it clear that an AVO is not required as there are no immediate fears held for his safety.

As the offences date back around 20 years ago and are not of a serious nature police explained no further action could be taken.

DVLO and Detectives agree a report is sufficient.

6. A report from Tracey Jarvis, approved counsellor, dated 10 February 2016, records a history of domestic violence. DSK said that his mother physically abused him from 7 years or earlier until age 17 and she hit him with her open hand and objects such as a wooden rod, metal coat hangers and her shoe. Prior to the age of 9, his father would pull her off him and then hit his mother. He heard the domestic violence and his mother told him about it. His mother had 2 suicide attempts. His father was a very imposing man – being tall and having a deep voice. He was prone to fits of sudden rage, shouting through gritted teeth in a terrifying way. When DSK was aged 9 his parents divorced and he wondered who would protect him now that his father was leaving. At age 17 he stopped his mother from hitting him with a broom. He continues to have contact with his parents but finds these interactions to be re-wounding.

7. Ms Jarvis reported that psychometric testing indicates anxiety and depression in the ‘extremely severe’ ranges and stress in the ‘severe range’. She stated that DSK suffers unresolved anxiety, grief and rage about his parents’ violent and emotionally neglectful treatment towards him. It is likely that these things have impacted on his personality and this is evident in his disclosure that he believes that he is responsible for the destruction of his adult relationships. A relationship failed in 2008 and subsequently, he suffered a deterioration in his ability to sustain self-employment with his income declining from 2009, until he had to sell his property. She recommended 12 counselling sessions.

8. Ms Jarvis provided a progress report dated 24 May 2016, which indicates that DSK was pessimistic about is own recovery and is prone to episodic re-experiencing with significant distress. She noted that 2 weeks previously, DSK had an incident where he contemplated suicide and began to research methods. A safety plan was negotiated with the involvement of the Special Services Unit at the university at which he was studying and he agreed to contact emergency services if he thought he was going to make a suicide attempt. She reported that DSK has intense reactivity to triggers and emotional states that make it hard for him to maintain positive action.

9. On 4 August 2016, Ms Jarvis issued a “Victims Services over 22 hours report”, in which she expressed the view that DSK had been exposed to two types of crime incident: (a) domestic violence between his parents at least between age 8 and 9 until his parents separated; and (b) repeated incidents of physical assault by his mother from ages 8 to 17, with her hand and other implements. Psychometric testing indicates improvement in anxiety since February, but depression remained in the ‘extremely severe’ range. She sought approval for a further 22 hours of counselling from Victims Services.

10. Ms Jarvis issued a further report dated 21 February 2017, which indicates that DSK continued to suffer elevated levels of anxious arousal, anger/irritability, intrusive experiences, dissociation, sexual concerns, dysfunctional sexual behaviour and intense rage, which he sometimes directs at himself and at other times he is verbally aggressive to others. The tension reduction behaviour had caused him physical injury and secondary conditions for which he was receiving treatment. Scores for depression were just below the clinical threshold, indicating possible improvement.

11. On 29 June 2017, Ms Jarvis reported a continued improvement and that depression, anxiety and stress had stabilised in the ‘moderate range’. However, DSK continued to struggle with extremely anxious and angry responses to situations that frustrate him or where he comes close to the experience of failure. He also struggles with despondency about whether he will ever recover from his experience of early childhood abuse by both parents and his continued experience of his family’s rejection.

12. On 17 January 2017, Dr L Kadaba, GP, reported that DSK suffers from “a chronically unresolved PTSD”. The report set out a history of traumatic experiences as a child both physical and emotional, being raised in an abusive family environment, and that he suffers from many physical and psychological illnesses as a result. Problems with daily functioning include chronic back pains, depression/anxiety, sexual dysfunction, Bruxism causing TMJ dysfunction and obesity and eating disorders due to lack of motivation.

13. On 26 April 2017, Victims Services sent an email to Ms Jarvis, noting that as the current evidence on file indicated childhood abuse up to the age of 17, DSK would have until his 28th birthday to lodge an application for a recognition payment and up to his 18th birthday to lodge an application for financial assistance. This suggested that his claim was out of time, but while the application alleged that there was violence up until 24 August 2015, there was no evidence to support abuse until that date. The email states, relevantly:

…In order to potentially avoid anxiety and distress with a deferral or dismissal, I’m enquiring if (DSK) has reported any verbal or emotional abuse that occurred from 24/08/2013 up until 24/08/2015? If so, has there been any specific examples of the verbal abuse by his mother, or has she been standing in close proximity which has caused him to feel intimidated or fearful? If (DSK) has already discussed this with you or if you feel comfortable to discuss this with him as long as it will not seek to re-traumatise him, then an addendum or a progress report can assist with the medical evidence requirements of the scheme. He will also have to report the abuse which persisted into his adulthood (24/08/2014 up until 24/08/2015) to a government agency when he is ready to do so…

Decision at First Instance (Recognition Payment)

14. 19 September 2017, an Assessor (Client Claims) issued a Notice of Deferral pending receipt of further evidence and submissions. The Assessor referred to s 40 of the Act, which imposes time limits for lodgement of an application for financial assistance and a recognition payment. It provided, relevantly:

40 Time for making, and duration of, applications

(1) Except as provided by this section, an application for financial support or a recognition payment must be duly made within 2 years after the relevant act of violence occurred or, if the victim was a child when the act of violence occurred, within 2 years after the day on which the child concerned turns 18 years of age…

(4) Except as provided by subsection (5), an application for a recognition payment must be duly made within 2 years after the relevant act of violence occurred or, if the victim was a child when the act of violence occurred, within 2 years after the day on which the child turned 18 years of age.

(5) An application for a recognition payment in respect of an act of violence involving domestic violence, child abuse or sexual assault must be duly made within 10 years after the relevant act of violence occurred or, if the victim was a child when the act of violence occurred, within 10 years after the day on which the child concerned turns 18 years of age.

15. The Assessor stated that the following for DSK to satisfy s 40 of the Act and be entitled to victims support in the form of financial assistance for immediate needs and/or a recognition payment, he must establish an violence during the period between 1 September 2013 and 1 September 2015 (2 years before the application was lodged). She stated, relevantly:

17. Acting beneficially, Il will give the applicant the opportunity to provide further details to make out his application for financial support. I ask that the applicant please provide a Statutory Declaration providing further details of the domestic abuse that occurred between 1 September 2005 (sic) and 1 September 2015, with comments or answers to the following:

a. Can the applicant provide any examples where the alleged offender intimidated, threatened or harassed him?

b. Did the intimidation, threats or harassment cause the applicant to fear for his personal safety?

c. Please provide specific details and the nature of the incident that occurred in 2014 which necessitated the applicant’s relocation? Did the applicant have to flee a violent or threatening situation in which he feared for his personal safety?

16. A copy of the Notice of Deferral was posted to DSK on 10 October 2017,under cover of a letter from the respondent dated 25 September 2017.

17. On 10 November 2017, DSK signed a Statutory Declaration, in which he declared, relevantly:

In 2013 and 2014, I facilitated professional mediation separately with my mother and father, hoping that it might be possible to heal my injuries through their acknowledgment of their treatment of me and through guided dialogue with each of them. These mediations quickly fell over when my parents refused to acknowledge their impact on me, instead blaming each other (or me) for their behaviour.

After the singular session with my mother she told me she was considering calling the police and telling them of their belief that I would sneak into her place one night and ‘stab her in her sleep’. Of course no such threat was ever made by me, or even contemplated. My mother has, on more than one occasion, fabricated events to justify her lifelong, relentless rejection and abuse of me. Whenever, as an adult, I attempted to engage with her in a dialogue about her treatment of me she would threaten me with one or another form of legal action if I persisted in trying to force her to have such a conversation.

Throughout my life, including the period between 1 September 2013 to 1 September 2015, my mother has coerced other members of my family and social circle (including my older sister and her family) into rejecting and ostracising me. In 2014 my brother in law told me my mother announced at a family dinner (to which I naturally was not invited), which was attended by a variety of people including my brother in law, my sister and their children (my niece and nephew) that I had threatened to sneak into her place one night and stab her with a knife. As a result of my mother’s coercion of family members and perpetuating a family culture of rejection toward me I can confirm I have been left with debilitating and desperate feelings of depression, isolation and anxiety, fearing further denial of my personal rights and freedoms and precipitating my relocation in 2014 as far away as possible from my family and social contacts but remaining within the range of Sydney’s public transportation services.

My father’s frequent explosions in fits of rage have also contributed substantially to my various nervous conditions. It is not just my mother’s behaviour that has caused me harm. My father is a very tall man with a large frame and deep, booming, baritone voice, whose fits of rage are so loud and frightening they seem to cause building foundations to shake.

As a result of my family’s lifelong abuses and intimidation of me I suffer from an eating disorder and other stress related medical conditions, including chronic haemorrhoids and septic arthritis, both of which had resulted in hospital stays and surgical procedures. I have a nervous condition known as rhinotillexomania which resulted in surgery to correct a deviated septum after which I developed breathing difficulties and chronic sleep apnoea… I have also frequently experienced panic attacks.

I have been forced to seek psychological and psychiatric treatments throughout my life to manage the behaviours and impairments that have been caused by the abuse I have suffered in my family. I have not been able to enjoy or maintain normal, healthy relationships with friends, life partners or my own offspring.

I have essentially been robbed of a normal, healthy life that I would otherwise have been able to enjoy were it not for the abuse I have suffered at the hands of my parents and family of origin.

18. DSK also submitted “notes/observations” in response to matters raised in the Notice of Deferral, which are summarised as follows:

1. Determination of Criminal Offence

19. DSK submitted that his mother’s many years of physical and psychological abuse of him was “unquestionably criminal” and that under s 61 of the Crimes Act 1900, actual bodily harm is not required for a criminal assault to have occurred. He argued that the decisions in R v Burstow; R v Ireland [1998] I AC 147 are authority that the condition of fear in the victim is the gist of assault – “An assault is any act…by which a person intentionally – or recklessly – causes another to apprehend immediate and unlawful violence”. He argued that his mother’s threats in 2014 to tell police that he had threatened to stab her, caused him “to fear immediate and unlawful violence” and that his father’s explosions of rage around him, which occurred even to the present day, caused him “to fear immediate and unlawful violence”. He also argued that these matters also constitute a domestic violence offence and intimidation (as defined in ss 11 and 13, respectively, of the Crimes (Domestic and Personal Violence) Act 2007)

1. Time limitations

2. In relation to the time limits imposed by the Act, he referred to recent findings published by the Royal Commission into Child Abuse, that some survivors of child abuse disclose years later as adults and some never disclose. Disclosure if often delayed by over 20 years and survivors took an average of 22 years to disclose their abuse after it began. He submitted that consistent with this, s 9 (3) (f) of the Crimes (Domestic and Personal Violence) Act 2007 notes the relevance of “the particularly vulnerable position of children who are exposed to domestic violence as victims or witnesses, and the impact that such exposure can have on their current and future physical, psychological and emotional well-being. Further, s 44 of the Crimes (Domestic and Personal Violence) Act 2007 states that in assessing time limits for victims to reports acts of violence, the assessor may have regard to: (i) the age of the victim when the act of violence is alleged to have occurred; (ii) any… psychiatric disability to which the victim is subject; (iii) the nature of the relationship between the victim and the person or persons by whom the act of violence is alleged to have been committed; (iv) any fear or retaliation by such person or persons to whom the victim is subject; and (v) the nature of any injury alleged to have been sustained by the victim.

20. DSK concluded that even if the time limits in the Act are strictly enforced and the claims assessor ignores the recent legislative developments in this area as well as the latitude that they are afforded in this regard, both his parents have continued their intimidation of him in recent years and, aside from experiencing fear for his physical and mental safety, he also suffered a number of physical and psychological injuries as outlined in his Statutory Declaration.

Decision at First Instance – Recognition Payment

21. On 2 July 2019, an Assessor-Client Claims issued a Notice of Decision, which determined that DSK is not eligible for financial support and a recognition payment. Her reasons included, relevantly:

Reports to Police and court documents

12. Police established that the physical abuse perpetrated by the applicant’s mother amounted to common assault. Police also note that as the offence dates back to around 20 years ago and were not considered by the police to be of a serious nature, police explained that no further action could be taken against the applicant’s mother.

13. I do not have before me any reports to police or a government agency regarding offences committed by the applicant’s father, who is the other named alleged offender…

Findings

Is (DSK) a primary victim of an act of violence?

…

21. Having considered the evidence on the balance of probabilities, I am satisfied (DSK) was the primary victim of an act of violence, that occurred between 1 January 1973 and 16 October 1984 (from the ages of 6 to 17). I acknowledge that this abuse has caused the applicant great trauma and lasting damage.

22. However, section 40 of the Act places time limits on the time within an application for financial support and/or a recognition payment can be lodged, deeming the application for this act of violence outside of the required timeframes at section 40(1), (4) and (5). The application does not appear to meet any of the exceptions under section 40.

23. The purpose of the notice of deferral was for the applicant to address and outline domestic abuse that amounts to an act of violence as defined by section 19 of the Act and perpetrated by the alleged offenders in the period of 1 September 2005 to 1 September 2015, in order to satisfy the time limits in Section 40 of the Act.

24. Unfortunately, I cannot make a finding that the verbal abuse between 1 September 2005 and 1 September 2015 amounts to an act of violence. On the facts currently before me, the conduct described does not amount to a criminal offence involving violent conduct as defined in section 19 of the Act.

25. In the notice of deferral dated 19 September 2017, section 39(2)(b) of the Act was also discussed, which relates to documentary evidence. This means that the applicant must provide a police report or report of a Government agency and a medical or counselling report verifying the primary victim has actually been injured as a result of the act of violence for the period 1 September 2005 to 1 September 2015. I have not received any reports to police or a government agency that satisfies this requirement.

26. The result of this is that the act of violence established as occurring between 1 January 1973 and 16 October 1984 (from the ages of 6 to 17) cannot be connected to the later time period of 1 September 2005 to 1 September 2015, in order to satisfy the time limits in section 40 of the Act.

27. Regrettably, the applicant is therefore not eligible for financial support and a recognition payment under the Act, in relation to this application.

22. I note that a copy of this decision was posted to DVS under cover of a letter from the respondent dated 10 July 2018, but the date of posting is not indicated in the documents before me.

Internal Review

23. On 6 August 2018, DSK signed an Internal Review request form, in which he indicated that he would advise the grounds of his application at a later date. He then sought, and was granted, several extensions of time by the respondent.

24. On 26 November 2018, DSK provided submissions to the respondent in response to the decision dated 2 July 2018. He stated that he understood that his application had been declined as a result of two primary findings, namely: (1) Undisputed criminal violence occurred too long ago; and (2) Violence within acceptable timeframe not sufficiently criminal. In relation to (1), he requested that the respondent exercise her “discretionary authority to reverse this finding”. He asserted that time limits relating to reporting of child abuse have recently been overturned throughout Australia, including s 6A(1) of the Limitation Act 1969, which now provides that no limitation period applies to an action for damages that relates to personal injury to a person resulting from an act or omission that constitutes child abuse. He referred to numerous studies, articles and jurisprudence from other jurisdictions in support of his submissions on this issue. In relation to (2), DSK he essentially repeated the submissions contained in his undated notes/response to notice of deferral. He concluded:

My parents’ verbal and psychological abusiveness (and neglect) toward me in the 10 years prior to lodging my claim, which caused me to experience intimidation and further mental harm, are criminal offences involving violent conduct as defined in section 19 of the Victims Rights and Support Act 2013 (when applying the standards referred to in that section, including relevant definitions within the Crimes (Domestic and Personal Violence) Act 2007 and the Crimes Act 1900). My parents’ conduct also satisfies standards of criminal conduct found in relevant Australian case law and statute law from other Australian States.

On the above bases I humbly implore you to review your decision dated 2 July 2018 and award me some degree of financial compensation as an important tangible recognition of my injuries. Doing so would send a long-overdue message to citizens that the damage caused by parental child abuse has come to the attention of the authorities, and would simultaneously assist me in managing the real and ongoing financial and psychological impact of the criminal violence to which I have been subjected at the hands of my primary carers – violence which legislation finally considers worthy of redress…

25. On 18 December 2018, the Senior Assessor issued a Notice of Review Decision, which determined that the evidence established that DSK was the primary victim of an act of violence pursuant to sections 19 and 20 of the Act. However, due to the time limits in the Act, the application for a recognition payment and financial support are out of time and are dismissed, but free counselling remains available to him. In making that determination, the Senior Assessor stated, relevantly:

…19. I do not consider the available evidence is sufficient to establish that the conduct of (SVK)’s mother continued to be of a criminally offensive nature, after they ceased residing together.

20. In his statutory declaration, and review submissions, (DSK) also refers to incidents involving his father, as follows:

…My father’s frequent explosions in fits of rage have also contributed substantially to my various nervous conditions. It is not just my mother’s behaviour that has caused me harm. My father is a very tall man with a large frame and deep, booming, baritone voice, whose fits of rage are so loud and frightening they seem to cause building foundations to shake…

21. This behaviour is also referred to in the counselling reports. I acknowledge (SVK)’s submission that the conduct of his father, as described, contributed to his psychological dysfunction. However, this behaviour was not formally reported and it is not clearly evident whether it could be considered to be of a criminally offensive nature. I do not therefore consider that a separate act of violence is established, involving (SVK)’s father.

22. While I accept that SVK was the victim of an act of violence involving child abuse and that his statutory declaration describes continued hostility in the relationship between he and his parents, into adulthood; I am not satisfied that there is sufficient evidence to establish a continuous series of related acts of violence involving both parents as offenders….

27. I have read DSK’s submissions regarding the law in relation to offences involving child abuse, and acknowledge that there have been changes in this regard, notably in relation to the timeframe for civil claims. However, the act that applies to this application contains its own specific timeframes and offers no other exception or discretionary power to override the time limits referred to above…

29. However, with regret, I mist advise that due to the Act’s time limits, eligibility for a recognition and financial support is not established, in relation to the incidents that are the subject of this application…

26. The Respondent served a copy of this decision upon DSK under cover of a letter dated 21 December 2018. However, the date that these were posted is not indicated in the documents before me.

Application for administrative review

27. The current application for administrative review was filed on 4 February 2019 and I am satisfied that it was filed within time.

28. This Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (NSW) (“the ADR Act”), which provides:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)  any relevant factual material,

(b)  any applicable written or unwritten law.

(2)  For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a)  to affirm the administratively reviewable decision, or

(b)  to vary the administratively reviewable decision, or

(c)  to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)  to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

29. The Application came before Senior Member McAteer for Directions on 15 March 2019, when DSK appeared in person and Ms Sabesan appeared for the respondent. The documents provided by the respondent under s 58 of the ADR Act were comprehensive and complete. The Senior Member ordered DSK to file and serve any further evidence of act of violence beyond 1984 and comply with s 39(2) of the Act on or before 18 April 2019 and he ordered the respondent to file and serve any submissions on or before 10 May 2019. He listed the matter for hearing on 17 May 2019.

30. However, on 17 April 2019, DSK sent an email to the Tribunal and the respondent, seeking an adjournment of the hearing to a later date and requesting that the hearing be closed to the public. He also stated that he had filed a supplementary police report no. E595126991, which he intended to rely upon as fresh evidence. On 24 April 2019, Principal Member Britton vacated the hearing on 17 May 2019 and instead listed the matter for hearing on 9 August 2019. She extended the time for DSK to file and serve any further evidence to 14 June 2019 and extended the time for the respondent to file submissions to 28 June 2019. She ordered that the request for a “closed” hearing should be determined by the Tribunal at the commencement of the hearing, until which the hearing will be closed to the public.

Applicant’s further evidence and submissions

31. A Police COPS Event Report dated 4 April 2019, indicates, relevantly:

I…Around 3:00pm on Thursday, 4th of April 2019, the victim has attended Dee Why Police Station requesting to make a new report about the issues from 2015. The victim explained to police that he has been receiving assistance from victims services. They had been providing him with psychological counselling however they could not provide any further assistance due to the initial report not containing any recent events experienced by the victim by his parents.

The victim provided the following information to police; on the 27/09/12 he received an email from his father (name provided) which stated, “She is and has always been a mental case. A friend of hers told me decades ago that she was a paranoid or some other sort of schizophrenic”. On the 24/06/13 the victim sent an email to his father which reiterated what his mother (name provided) had said to him on the phone, “I don’t love you, you are not my son, others may like you but I don’t. You are peculiar. I don’t like you. I don’t love you. I’m hanging up now.” On the 5/07/13 the victim received a phone call from his mother who was talking about his father.

After the police read the document provided by the victim detailing the above information and speaking with him further police could not identify any offences that have occurred. Police suggested to the victim that since he is now an adult and the above incidents occurred when he was an adult that if he did not appreciate what either parent was speaking to him about he could choose to not have any further contact with them. However, the victim stated that he had suffered years of belittling and psychological abuse from his mother and that he was still suffering the consequences.

Police enquired what the reasons were for the victim attending the police station and he informed them that he needed these incidences recorded with a new event number before victims services would consider providing him with further assistance. Police pressed the victim further about what these services were and he stated they were of a financial nature.

Victim provided with event number and victim card, record only.

32. At the hearing of the matter on 9 August 2019, DSK appeared in person and Ms M Habashy appeared for the Respondent. Ms S Sabesan, of Victims Services was also in attendance, but no members of the general public were present.

DSK’s oral submissions

33. DSK submitted that the more recent acts described in the 2019 police report are part of a series of related acts and these occurred less than 2 years ago. He referred back to his written submissions in support of the request for internal review, a copy of which was filed with his application for administrative review, and he maintained that the incidents that he described were acts of violence for the purposes of the Act. He argued that emotional abuse constitutes assault and that his parents’ behaviour was intimidating. As a result, he is eligible for financial support and a recognition payment.

Respondent’s submissions

34. The respondent filed written submissions on 5 July 2019, which provide relevantly:

…Application lodged out of time

…12. In order to satisfy the requirements of section 40 of the Act, the applicant needed to meet the following requirements:

(1) For financial assistance for immediate needs, an act of violence must be established in the 2 years prior to lodgement of the application. The applicant lodged the application on 1 September 2015, so the required timeframe is 1 September 2013 to 1 September 2015.

(2) For a recognition payment, an act of violence must be established in the 10 years prior to the application. The applicant lodged the application on 1 September 2015, so the required timeframe is 1 September 2005 to 1 September 2015.

13. Section 40 does not provide any ability to exercise discretion outside these time limits. This was referred to in CKP v Commissioner of Victims Rights [2016] NSWCATAD 108, at 22: The tribunal informed the applicant it does not have power to extend the time for lodgement of an application.

14. The respondent submits that the applicant is not eligible for victims support for these offences that took place over 20 years ago, as it falls outside the time limits placed by section 40 of the Act.

…The requirement of documentary evidence not fulfilled

18. the Police report E595126991 provided by the applicant as part of his submissions to the NSW Civil and Administrative Tribunal and Victims Services on 13 June 2019, outlines that after review of the documentation provided by the applicant in his report, police were unable to identify an offence for events occurring within 2012 – 2015.

19. The applicant submitted the report of Ms Tracey Jarvis dated 7 June 2017, outlining the verbal abuse by the applicant’s mother between 2013 and 2015. This was considered by the delegate, who found that the verbal abuse did not amount to an act of violence as it is not a criminal offence and does not fulfil the definition in section 19 of the Act.

20. The respondent submits that the Police report and medical evidence provided by the applicant to indicate he is a victim of domestic violence from September 2005 to September 2015 does not establish that any violent conduct occurred nor was an offence committed: “police could not identify any offences that have occurred. Police suggested to the victim that since he is now an adult and the above incidents occurred when he was an adult that if he did not appreciate what either parent was speaking to him about that he could choose to not have any further contact with them”.

21. The respondent submits that the applicant is not a victim of an act of violence, in the form of domestic violence as per section 19 of the Act, from September 2005 to September 2015.

Conclusions

22. The respondent submits that the correct and preferable decision is to dismiss the application. Firstly, in relation to the offences that took place over 20 years ago, the Act does not allow an application to be made out of time.

23. Secondly, the respondent submits that the Police report provided on 13 June 2019 does not establish an offence as per section 19 of the Act for the period from September 2005 to September 2015. The respondent submits that the correct and preferable decision is to refuse the approval of a recognition payment on the basis of (sic) an act of violence has not been established.

24. The respondent submits that the Tribunal ought to affirm the decision of the respondent made on 18 December 2018 and dismiss the application for administrative review.

Consideration

Act of Violence

35. Section 23 (1) of the Act provides that a primary victim of an act of violence is eligible for the support under the scheme described in s 26 of the Act.

36. “Act of violence” is defined in s 19 (1) of the Act as follows (relevantly):

(1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons:

(a) that has apparently occurred in the course of the commission of an offence, and

(b) that has involved violent conduct against one or more persons, and

(c) that has resulted in injury or death to one or more of those persons.

(2) For the avoidance of doubt, the reference to an offence in subsection (1)(a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person’s age or mental illness or impairment…

37. The onus is on DSK to prove his allegations of assault/domestic violence on the balance of probabilities.

38. There is no dispute that DSK was the primary victim of an act of violence that occurred over a period of time from 1 January 1973 to 16 October 1984, that is when he was aged between 6 and 17 years. Based on the available evidence, I am satisfied that he has established that he was a primary victim of an act of violence and that the incidents alleged in the application during that period constitute a series of related acts.

39. However, by reason of s 40 of the Act, DSK is not eligible for victims support in relation to these acts of violence because his application was not lodged within the permitted timeframe and the Act does not permit any extension of time.

40. There is a dispute as to whether DSK was the primary victim of an act of violence during the period from 1 September 2005 to 1 September 2015. It is apparent that DSK perceives that the alleged offenders’ treatment of him and conduct towards him was violent in nature and breached certain provisions of the Crimes (Domestic and Personal Violence) Act 2007, including:

1. Section 11, which provides:

11   Meaning of “domestic violence offence”

(1)  In this Act, domestic violence offence means an offence committed by a person against another person with whom the person who commits the offence has (or has had) a domestic relationship, being:

(a)  a personal violence offence, or

(b)  an offence (other than a personal violence offence) that arises from substantially the same circumstances as those from which a personal violence offence has arisen, or

(c)  an offence (other than a personal violence offence) the commission of which is intended to coerce or control the person against whom it is committed or to cause that person to be intimidated or fearful (or both).

(2)  In this section, offence includes an offence under the Criminal Code Act 1995 of the Commonwealth.

41. DSK submitted that s 4 of the Crimes (Domestic and Personal Violence) Act 2007, defines a “personal violence offence” as including: “Failure of persons with parental responsibility to care for a child” (s 43A of the Crimes Act 1900), common assault (s 61 of the Crimes Act 1900) and “intimidation with intent to cause mental harm” (s 13 of the Crimes (Domestic and Personal Violence) Act 2007).

42. In relation to the alleged offence of “Failure of persons with parental responsibility to care for a child”, s 43A (1) of the Crimes Act 1900 provides:

43A Failure of persons with parental responsibility to care for child

(1) In this section:

child means a child under 16 years of age.

parental responsibility means the duties, powers, responsibilities and authority in respect of a child that, by law, parents have in relation to their children.

(2) A person:

(a) who has parental responsibility for a child, and

(b) who, without reasonable excuse, intentionally or recklessly fails to provide the child with the necessities of life,

is guilty of an offence if the failure causes a danger of death or of serious injury to the child.

Maximum penalty: Imprisonment for 5 years.

43. I note that during the period from 1 September 2005 to 1 September 2015, DSK was not a child under 16 years of age. Therefore, s 43A is not relevant to the current application.

44. In relation to the alleged offence of “Stalking or intimidation with intent to cause fear of physical or mental harm”, s 13 of the Crimes (Domestic and Personal Violence) Act 2007 provides:

(1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.

Maximum penalty: Imprisonment for 5 years or 50 penalty units, or both.

(2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship.

(3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.

(4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.

(5) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.

45. DSK submitted that his mother’s coercion of his family members to ostracise him and her threats to tell police that he threatened to harm her constitutes “intimidation” for the purposes of s 13 of the Crimes (Domestic and Personal Violence) Act 2007.

46. However, s 13 requires the offender to have acted with the intention of causing the victim to fear physical or mental harm and there is no evidence before me that establishes the requisite intention on the part of either of the alleged offenders. I am therefore not satisfied that an offence under s 13 has been established on the balance of probabilities.

47. In relation to the allegation that the acts of violence alleged between 1 September 2005 and 1 September 2005 constitute common assault by the alleged offenders, I note that the incidents that DSK reported to the police on 4 April 2019, comprised: his receiving of an email from his father on 27 September 2012, which made comments about his mother’s mental health; his sending of an email to his father in which he described a telephone conversation with his mother, in which she said that she did not love him and that he was not her son and that she did not like him and that he was peculiar; and his receiving a phone call from his mother, talking about his father, on 5 July 2013. He did not report any incident during the period from 6 July 2013 to 1 September 2015.

48. I note that police were unable to identify any offences arising from these incidents and that no action could be taken against the alleged offenders. While I am not bound by the decision made by police in relation to this issue, based upon a consideration of all of the evidence before me, I concur with it. I am therefore not satisfied on the balance of probabilities that DSK was the victim of an act of violence in the nature of an assault during the period from 1 September 2005 to 1 September 2015.

49. In any event, as DSK did not report any alleged act of violence after 5 July 2013, he is not eligible for financial assistance for immediate needs as he did not lodge his application for victims support within a period of 2 years from that date.

Orders

1. The decision of the Senior Assessor dated 21 December 2018 is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 22 August 2019