GTO v Commissioner of Victims Rights

[2025] NSWCATAD 182

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GTO v Commissioner of Victims Rights [2025] NSWCATAD 182

Hearing dates:

20 March 2025

Date of orders:

25 July 2025

Decision date:

25 July 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

(1) The decision dated 4 November 2024 is set aside and I make the following decision by way of substitution:

   (a) The applicant is the primary victim of an act of violence in the nature of sexual and physical assaults, which are a series of related acts.

   (b) The applicant is eligible for a category B recognition payment in the sum of $10,000.

Catchwords:

ADMINISTRATIVE LAW – administrative review – Victims’ rights and support – sexual assault and domestic violence - series of related acts - recognition payment

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Victims Rights and Support Act 2013 (NSW)

Cases Cited:

BMF v Commissioner of Victims Rights [2015] NSWCATAD 144

BWL v Commissioner of Victims Rights [2016] NSWCATAD 144

DKJ v Commissioner of Victims Rights [2018] NSWCATAD 270

DUD v Commissioner of Victims Rights [2019] NSWCATAD 163

FGY v Commissioner of Victims Rights [2022] NSWCATAD 223

FJE v Commissioner of Victims Rights [2022] NSWCATAD 323

FPJ v Commissioner of Victims Rights [2023] NSWCATAD 95.

GFM v Commissioner of Victims Rights [2024] NSWCATAD 156

GNI v Commissioner of Victims Rights [2024] NSWCATAD 356

R v Haoui (2008) 188 A Crim R 331

Texts Cited:

Australasian Institute of Judicial Administration, National Domestic and Family Violence Bench Book (July 2024)

Just Keeping the Peace: A Reluctance to Respond to Male Partner Violence – Melanie Heenan, Australasian Centre for the Study of Sexual Assault Issues No 1, Australian Institute of Family Studies, 2004.

Sexual Assault and domestic violence in the context of co-occurrence and re-victimisation: State of knowledge paper – Peta Cox, ANDROWS 2015.

Category:

Principal judgment

Parties:

GTO (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Solicitors:
Ms M Vagg, Illawarra Legal Centre (Applicant)
Ms K Douch, Victims Services (Respondent)

File Number(s):

2024/00450437

Publication restriction:

Section 64 (1) (a) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify any victims or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Background

1. These proceedings relate to an application for victims support in the form of a recognition payment lodged on 19 April 2023, by the applicant, who is identified for these proceedings by the pseudonym GTO (the applicant) initially before the Commissioner for Victims’ Rights (the respondent). The application was lodged under the provisions of the Victims Rights and Support Act 2013 (NSW) (the Act).

2. The applicant alleged that she was the victim of domestic/family violence that was perpetrated by a named offender between 1 January 2001 and 25 January 2019, at various locations in the Illawarra Region of New South Wales, and that she suffered a psychological injury as a result.

Decision at first instance

3. On 24 June 2024,an Assessor (Client Claims) issued a Notice of Decision and found that an act of violence was not established on the balance of probabilities as required by s 19 of the Act. Accordingly, the application was dismissed.

4. I am satisfied that a copy of the decision was served on the applicant in the manner required by the Act.

Application for internal review

5. The applicant applied for an internal review and on 4 November 2024, a Senior Assessor found that there was insufficient evidence to establish, on a balance of probabilities, that the applicant was a primary victim of an act of violence. The application was dismissed.

6. I am satisfied that a copy of the decision was served on the applicant in the manner required by the Act.

Application for internal review

7. 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.

8. On 29 November 2024, the Tribunal received the current application for administrative review, which sought a review of the decision dated 4 November 2024, on the grounds that:

There is ample evidence being more than one ‘report by a Government agency or any other agency that provides support services to victims of crime, sufficient to support, on the balance of probability, the applicant’s claim to be a victim of an act of violence. That evidence is particularised including names of witnesses.

There is ample evidence being “a medical, dental or counselling report verifying that the applicant or child who is the primary victim concerned has actually been injured as a result of the act of violence.

9. The matter came before me for directions on 31 January 2025, at which time Ms Vagg appeared for the applicant and Ms Douch appeared for the respondent. Ms Vagg stated that the applicant did not want the tribunal to make an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). I ordered the respondent to file and serve its bundle of documents under s 58 of the ADR Act by 7 February 2026. I ordered the applicant to file and serve any further evidence by 28 February 2025. I ordered the respondent to file and serve submissions by 7 March 2025 and the applicant to file and serve submissions by 21 March 2025. I listed the matter for hearing on 28 March 2025.

The hearing

10. The matter came before me for hearing on 28 March 2025. Ms Vagg appeared for and with the applicant and Ms Douch appeared for the respondent.

11. I expressed concern at the lack of a non-publication order and, after conferring with the applicant, Ms Vagg stated that the applicant requested that the Tribunal to make an order under s 64(1)(a) of the NCAT Act. Ms Douch did not oppose this and the Tribunal made the order.

12. Ms Douch stated that she was instructed that the respondent conceded that the applicant was a primary victim of an act of violence.

13. Accordingly, the Tribunal identified the following issues for determination:

1. Is the applicant eligible for more than one recognition payment?

2. If yes:

1. Is she eligible for a category C or category D recognition payment with respect to the acts of physical violence?

2. Is she eligible for a Category B or Category C recognition payment with respect to the sexual assaults?

14. Ms Vagg also stated that the applicant wished to give some oral evidence and that this had not been previously reduced to writing because she had felt unable to do so. Ms Douch did not object to this and the Tribunal granted her leave to give oral evidence.

Applicant’s case

15. Ms Vagg adopted the written submissions filed on 21 March 2025. However, in response to the Tribunal’s invitation to refer it to matters of particular relevance, Ms Vagg stated that the applicant suffered both domestic violence/physical assaults and sexual assaults, which were perpetrated by the named offender, during the period of time alleged in the application for victims support. It is therefore necessary for the Tribunal to consider whether the applicant was a primary victim of a series of sexual assaults on the balance of probabilities.

16. In a report dated 12 February 2025, Donna Higgins, Team Leader Women’s Advocacy and DFSV Specialist, stated that she began working and supporting the applicant on 16 August 2023. She reported a history of a de-facto relationship with the perpetrator that commenced in January 1998 and lasted 22 years, during which they had seven children. The perpetrator was arrested in April 2019. After the first two children were born, the perpetrator became verbally abusive and there were many occasions when he made her sleep on a sheet like a dog rather than in her bed. He often told the children that she was not working, when she was at work, and he would make them check up on her. This adversely impacted the children. She stated:

This continued for many years and given (the applicant) was a victim of sexual abuse until the age of 15 from her father, she didn’t realise how calculating (the perpetrator) was keeping her pregnant and never realised this was a form of control and sexual abuse as he would do sexual acts on (the applicant) whenever he wanted, especially when under the influence of alcohol, with no regard to who was in the home.

(The applicant) was unable to change anything as she felt so responsible to keep a roof over their head and food in their mouths.

(The applicant) then went on to describe the physical abuse she suffered while with (the perpetrator. (She) stated he head butted her a couple of times leaving the tip of her nose detached and black eye. (She) also described a time when he continued to drill two metal pieces of a shed together with (her) hand caught in between. His response to that was to pull it out, even though she was screaming and crying. (She) stated her friend seen the effects of this the next day. The hand was swollen and bruised.

(She) described that there was ongoing physical abuse, along with psychological abuse for 15 years.

17. Ms Higgins stated that in April 2019, (the applicant) was told by her niece that (the perpetrator) had abused her daughter (then aged 12) and that her son was the first alleged victim. Although the perpetrator was arrested, she was unable to speak about this and she made excuses about his whereabouts. (the applicant) and her second son were told that they had to go to the Police Station because her daughter had reported that her second son had abused her. He was arrested one year later and he was charged with 14 counts of sexual abuse against her daughter. He was ultimately found guilty of one charge and was placed on a two year good behaviour bond.

18. Ms Higgins stated:

The effect of the sexual, physical and psychological abuse on her and the children has taken a huge toll on (her) life. Coming to terms with the fact that her partner has abused his rights not only as her partner but also that of the children as their father.

(She) has been trying to seek trauma counselling for herself as this is very significant to her recovery and future life. This will be long term with no time limit to her recovery.

19. The applicant also relied upon Statutory Declarations by two of her children (who I have anonymised as J1 and J2). They describe the violence within the home and noted that they saw (the applicant) being tripped and shoved within the home, and that items were thrown at her and she ended up with cuts and bruises. They also saw her being stepped-on by the perpetrator.

20. The applicant also relied upon a statutory declaration by her daughter (who was abused). She also described witnessing the perpetrator spitting in The applicant’s face and then taking her APPLICANT into the bedroom. She heard the applicant saying “Please stop,” but the perpetrator later told her “I got what I wanted from her. If she’s going to give it out I’ll take her for everything she has left.” She also stated that the perpetrator told her that he was going to sexually assault the applicant and that when the applicant got home from work, she heard her say “I’m not doing this tonight, please stop” and he would reply, “No you’re going to do this – you’ve been doing it with other people you can do it to me.” The perpetrator then told her, “yep, I get what I want when I want it.”

21. In relation to medical evidence, the clinical records from the applicant’s GP indicate a long history of medication for depression and multiple x-rays that could have been the result of trauma. However, the applicant did not report any history of domestic violence to her GP at that time.

22. Ms Vagg stated that the applicant is continuing to have treatment for psychological injury and she has recently begun to see a counsellor. Dr Heffernan (treating GP) diagnosed symptoms of Generalised Anxiety Disorder and end extremely severe and intermittent depression. The provisional diagnosis was severe anxiety, depression and possible PTSD. She attributed this to “long term – multiple incidents” which were “exacerbated in 2019 with discovery of sexual abuse of children”.

23. The clinical records of the medical centre document a number of presentations for physical injuries, including: (1) 2 January 2007 - right elbow and forearm – x-rays requested); (2) 5 October 2010 – pain in the right lower chest wall; (3) 19 March 2011 – Pain and immobility of the left shoulder and left elbow due to a fall on stairs; (4) 12 April 2011 – loose tooth; (5) 3 May 2011 – “posterior upper molar which is hanging on by a thread and causing excruciating pain”; (6) 26 August 2011 – “injury yesterday left knee causing bruising and reduced ROM”; (6) 20 June 2012 – torn calf muscle; and (7) 18 July 2014, 24 September 2016, 9 March 2017, 25 April 2017, 24 August 2019 and 16 September 2019 - loose molar, swollen jaw, dental infections and fractured teeth.

24. While the clinical records do not state that any of the physical injuries were due to the perpetrator’s violence, they are evidence that the applicant sought treatment for her physical injuries that are consistent with those described by Ms Higgins and the evidence of (J1 and J2).

25. In response to questioning from the Tribunal, the applicant stated that she sees her GP once per month, but it has only recently been that she feels less anxious talking to people and actually trying to understand what has happened to her. She is on medication to stop “night terrors” and she is now on a different anti-depressant medication because the previous medication was making her feel “like a zombie.” She is hypervigilant when she wakes in the morning.

26. Ms Vagg argued that a category B recognition payment is appropriate as the applicant was the victim of a series of sexual assaults. She conceded that the application for victims support did not refer to sexual assaults, but argued that this can be explained by reference to research on sexual violence within relationships. The Australasian Institute of Judicial Administration, National Domestic and Family Violence Bench Book (July 2024) (the Bench Book) provides a resource for judicial officers considering legal issues in cases involving domestic and family violence.

27. The Bench Book discusses research that examines the reasons why women fail to report sexual violence within a relationship such as that by Melanie Heenan – “Just Keeping the Peace: A Reluctance to Respond to Male Partner Violence” and by Peta Cox “Sexual Assault and domestic violence in the context of co-occurrence and re-victimisation: State of knowledge paper.” The Bench Book states:

Australian research indicates that sexual abuse in this context [of domestic and family violence] is the least likely form of domestic and family violence to be reported by victims…

Casework experience suggests that many sexual assaults in intimate relationships are unreported, and often undisclosed, even where other forms of violence are reported.

28. Ms Vagg argued that there is ample evidence to satisfy the Tribunal, on the balance of probabilities, that the applicant was the victim of a number of sexual assaults that were committed by the same perpetrator and that these are a series of related acts.

29. With respect to physical violence, which is supported by the evidence of Ms Higgins and (J1 and J2), Ms Vagg argued that the applicant is eligible for a category C recognition payment. While the applicant has a prior history of psychological issues resulting from childhood sexual abuse, the Tribunal should apply the common law egg shell skull rule and find that the applicant suffered a psychological injury as a direct result of the acts of physical violence and learning that her children had also been abused by the perpetrator.

30. Ms Vagg relied upon the Tribunal’s decisions in DUD v Commissioner of Victims Rights [2019] NSWCATAD 163, BMF v Commissioner of Victims Rights [2015] NSWCATAD 144, BWL v Commissioner of Victims Rights [2016] NSWCATAD 144 and FPJ v Commissioner of Victims Rights [2023] NSWCATAD 95.

31. Ms Vagg noted the respondent’s submissions on the meaning of “grievous bodily harm” and the decision in R v Haoui (2008) 188 A Crim R 331. She stated:

43. Whilst we acknowledge that in the cases cited by the respondent, the Tribunal has required quite substantial evidence of the degree of injury, we note other cases have not often being (sic) satisfied on the evidence of the applicant together with a GP. For example:

GNI v Commissioner of Victims Rights [2024] NSWCATAD 356

FJE v Commissioner of Victims Rights [2022] NSWCATAD 323

FGD v Commissioner of Victims Rights [2022] NSWCATAD 118

44. We submit that despite the other traumas, there is evidence that the sexual and physical violence perpetrated by the offender has caused, exacerbated or contributed to the applicant’s significant physical and psychological injuries.

45. Given the long-term, frequent violence and the seriousness of the applicant's psychological injuries, we submit that the applicant’s injuries can be characterised as amounting to grievous bodily harm, deserving a Category C recognition payment.

32. Ms Vagg also argued that it is open to the Tribunal to determine that the acts of sexual violence and physical violence are not a series of related acts under s 19(5) of the Act. She argued that sexual violence is generally regarded by Australian Society to be a distinct form of violence, as there are different offences in the Crimes Act 1900 (NSW), which carry different punishments, and the categories of recognition payments also distinguish between sexual assault and physical assault.

33. MS Vagg relied upon the decision of Senior Member McAteer in DKJ v Commissioner of Victims Rights [2018] NSWCATAD 270, in which two recognition payments were awarded in respect of the same application for victims support. However, in the matters of GFM v Commissioner of Victims Rights [2024] NSWCATAD 156 and CFV v Commissioner of Victims Rights 2016] NSWCATAD 152, the Tribunal found that physical and sexual assaults were a series of related acts.

34. Ms Vagg stated that there are no factors under s 44 of the act that justify either withholding victims support or reducing the amount of victims support given.

Respondent’s case

35. Ms Douch relied upon written submissions filed on 12 March 2025 and also made oral submissions in response to the applicant’s submissions.

36. As the respondent conceded that the applicant was the primary victim of an act of violence, I have not referred to the submissions regarding that issue.

37. With respect to the issue of the appropriate category of recognition payment that should be awarded, Ms Douch argued that a category D recognition payment is appropriate, on the grounds that the available medical evidence does not attribute the applicant’s psychological injury to an act of violence. The respondent also queried whether the provisional diagnosis of PTSD was made by a suitably qualified medical practitioner. The Certificate of Injury issued by Dr Heffernan is sufficient to verify injury as a direct result of an act of violence but it does not provide any formal diagnosis and the only treatment indicated is referral to a Victims Services counsellor. Also, while counselling was approved for the applicant on 11 January 2024, but there is no record of her accessing that service.

35. Ms Douch’s written submissions concluded by stating that the Tribunal should vary the decision under review under s 63(3)(b) of the ADR Act, to indicate that the applicant was the primary victim of an act of violence, comprising a series of related acts between 1 January 2001 and 25 January 2019. The Tribunal should then approve a category D recognition payment.

36. In her oral submissions, Ms Douch argued that there is insufficient evidence before the Tribunal to support a finding sexual assault. There was no disclosure of a sexual assault in the application for victims support or in any of the medical evidence relied upon and the Government funded report relied upon includes a disclosure, but it's limited to references to sexual abuse. The respondent does not consider that description to be sufficient to enable the Tribunal to find that there was an offence of sexual assault or sexual touching as defined in the Crimes Act 1900 (NSW).

37. “Sexual act” is defined in s 34 of Act, to be limited to acts perpetrated against children under the age of 16. In support of that proposition, the respondent relies on the case of FGY v Commissioner of Victims Rights [2022] NSWCATAD 223, in which a category D recognition payment had been approved for physical assaults, but the applicant sought a category B payment on the basis that the act of violence involved physical and sexual offences. The psychologist in that matter referred to “sexual harm” and “unwanted touching” and “unpredictable sexual behaviour by the offender.” The application was initially dismissed on the basis that there was insufficient particularisation in the report generally for a finding to be made under s 19 of the Act and that there was Government funded or police report for the purposes of s 39 of the Act. The applicant made allegations about sexual assault, but the Tribunal wasn't satisfied that they were the victim of a sexual assault or sexual touching.

38. The Tribunal noted that in that matter, the applicant had not filed any further evidence in support of the application for administrative review and what she told the Tribunal were regarded as submissions because there was no evidence filed in support of the allegations. However, that does not appear to be the current scenario in this matter..

39. Ms Douch argued that in that matter There was also a failure to particularise the acts of violence to enable the Tribune to identify sexual assault and the respondent’s position in this matter is that the applicant’s particularisation is not sufficient to satisfy ss 19 or 39 of the Act.

40. With respect to medical evidence, there is evidence that the applicant has suffered injuries and that is set out in the Certificate of Injury. In relation to the clinical records, the applicant has listed each of her presentations at the medical centre, but the records do not identify what injuries directly resulted from an act of violence. Instead, the applicant argues that these injuries may be attributable to the acts of violence.

41. Ms Douch concluded by stating that the respondent does not accept the submission that the Tribunal should award the two separate recognition payments.

Consideration and Findings

45. The Tribunal is satisfied that the applicant was the primary victim of an act of violence as defined in ss 19 and 20 of the Act. This issue was conceded by the respondent.

46. Based on the evidence of the applicant and (J1 and J2), I am satisfied that the applicant was a victim of sexual assaults and domestic violence as defined in s 19(8) of the Act and that these acts occurred over a period of time from 1 January 2019 to 25 January 2025.

47. The evidence before me also supports a finding that the acts of violence were committed by the same perpetrator and in the same location. On that basis, I am satisfied that the acts of violence are a series of related acts as defined in s 19(4) of the Act.

48. Notwithstanding the applicant’s submissions to the contrary, I am not satisfied that I should find that the acts of violence should not be treated as related acts (s 19(5)).

49. The applicant is eligible for a category B recognition payment in the sum of $10,000.

50. There are no factors under s 44 of the Act that either justify the withholding of victims support or reducing the amount of victims support that is approved.

Orders

51. I make the following orders:

1. The decision dated 4 November 2024 is set aside and I make the following decision by way of substitution:

1. The applicant is the primary victim of an act of violence in the nature of sexual and physical assaults, which are a series of related acts.

2. The applicant is eligible for a category B recognition payment in the sum of $10,000.

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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: 25 July 2025