Appendix C: Summary of recommendations relating to family violence
1 The first terms of reference ask the Commission to review and report on the provision of state-funded financial assistance to victims of family violence under the Victims of Crime Assistance Act 1996 (Vic) (VOCAA).
2 Although the supplementary terms of reference expand the Commission’s inquiry to consider the operation of the VOCAA and the Victims of Crime Assistance Tribunal (VOCAT) for all victims of crime, this appendix provides a summary of how relevant recommendations in this report have considered the unique circumstances of victims of family violence.
Recommendations relating to family violence
3 Recommendations 1–2: Models of assistance. While the proposed Model was assessed according to the objectives outlined in the supplementary terms of reference—which relate to all victims of crime—the Commission considered how the existing model impacted certain victim cohorts, including victims of family violence. In recommending a new model of state-funded financial assistance, the Commission has acknowledged that the current court-based model may be particularly challenging for victims of family violence given they are often already managing a number of concurrent legal proceedings and because a court-based model results in a number of additional safety concerns for victims of family violence that may not arise for other victims of crime. Additionally, the importance of timely decision making in family violence matters has been considered by the Commission in recommending an administrative model of assistance, noting that more timely assistance may enable a victim of crime to flee a violent situation and establish safe and secure housing.
4 Recommendation 9: The proposed decision maker. In recommending that the proposed scheme be overseen by a dedicated and specialised decision maker—and deputy decision makers who are subject matter specialists—the Commission has had regard to the need for decision makers to be trauma-informed and victim-centred. The Commission considers that deputy decision makers would enable the scheme to further specialise in matters such as family violence, sexual assault and historical child sexual abuse to ensure victims who have contact with the scheme will be provided with a specialised response tailored to their specific needs.
5 Recommendation 14: Key components of the proposed scheme. In recommending that victim conferences under the proposed Act provide a forum for victims to be acknowledged and heard—rather than being held for the purpose of determining an application—the Commission has had regard to stakeholder concerns about the impact that offender notification provisions have on victims of family violence victims under the existing scheme. By reconceiving victim conferences as a forum for acknowledgement and validation, the Commission recommends that the proposed Act not enable alleged perpetrators to be notified about an application to the proposed scheme, protecting family violence victims’ safety and wellbeing during the financial assistance application process.
6 Recommendation 21: The purpose, objectives and principles of the proposed Act. The Commission recommends that under the proposed Act, there be no reference to ‘certain victims of crime’ in the objectives as currently provided for under the VOCAA. This will address some issues encountered by victims of family violence who, due to the nature and dynamics of family violence, may be more likely to encounter subjective assessments of whether they are ‘certain victims’ under the VOCAA, having regard to matters such as whether a crime has been reported to police, whether a victim has co-operated with police or whether a victim has engaged in criminal activity. The Commission also recommends the inclusion of guiding principles in the proposed Act, including that victims’ needs, safety and wellbeing should be paramount. This would address concerns that under the VOCAA, victims of family violence may encounter processes that impact their safety and wellbeing, such as perpetrator notification and the requirement to report a matter to police.
7 Recommendation 24: Definition of victim. It is proposed that the definition of victim include children who witness, hear, or are otherwise exposed to a criminal act to reflect the significant impact that exposure to violence—particularly family violence—has on children.
8 Recommendation 27: Definition of criminal act. It is proposed that the definition of a ‘criminal act’ include a range of additional offences that occur in the context of family violence that are not offences against the person and which would not otherwise be covered by the proposed Act.
9 Recommendation 31: Requirement to prove injury. It is proposed that a victim would not have to provide evidence that they suffered an injury as a result of a criminal act, where the criminal act occurred in the context of family violence. This would also apply to children who are exposed to a criminal act that occurred in the context of family violence.
10 Recommendation 33: Streams of assistance. The proposed new streams of assistance would better meet family violence victims’ needs, particularly with respect to immediate (urgent) assistance, as well as housing and safety expenses.
11 Recommendation 40: Recovery payments and plans. To address issues relating to the VOCAA not sufficiently having regard to the cumulative impact of family violence, the Commission recommends that under the proposed Act, the VOCAA categories of ‘special financial assistance’ and ‘recovery expenses’ be consolidated into a new, flexible stream of assistance called ‘Recovery payments and plans’. This new stream of assistance would be available to all victims of crime, including all eligible victims of family violence. When determining the amount of assistance to be provided under recovery payments/plans, decision makers under the proposed scheme would be required to consider whether the criminal act occurred in the context of a pattern of abuse, including family violence, as defined in the Family Violence Protection Act 2008 (Vic). This would enable non-criminal forms of abuse— including non-criminal family violence—and the cumulative impact of such violence, to effectively operate as an ‘uplift’ on the amount of a recovery payment.
12 Recommendations 41, 80: Recovery payments and plans. It is proposed that the scheme decision maker be able to award a recovery payment in accordance with a recovery plan which, in the context of family violence, would mean that victims of family violence would not have lump sum payments refused on the basis of ‘perpetrator benefit’, as is currently the case under the VOCAA. Rather than refuse to make an award because of ‘perpetrator benefit’, a scheme decision maker could hold monies on trust and administer the funds in accordance with a recovery plan for the victim’s benefit.
13 Recommendation 43: Amounts of assistance. It is proposed that applicants who are the victim of two or more ‘related criminal acts’ would be eligible for up to $25,000 in the form of a recovery payment/plan (rather than the maximum amount of $20,000). This is to recognise the cumulative impact of patterns of abuse in circumstances such as family violence.
14 Recommendation 57: How to make an application. The Commission recommends that the proposed scheme’s application form enable applicants to list multiple criminal acts by the same perpetrator and indicate that the criminal act/s occurred in the context of a pattern of abuse and list a range of dates over which time such abuse occurred.
15 Recommendations 60, 62: Documentary evidence requirements—establishing a criminal act and injury. The Commission recommends that applicants, in support of their application, may provide a Family Violence Intervention or Family Violence Safety Notice to assist the decision maker in determining whether a criminal act occurred. To establish a criminal act or injury, an applicant may also provide a report from a range of social and medical services, including a family violence service. This means that victims of family violence would be able to ‘report’ matters to, amongst other services and professionals, a family violence service.
16 Recommendation 66: Use of application materials. It is proposed that all documents related to an application under the proposed Act would be inadmissible in other legal proceedings (except in certain circumstances). While addressing other concerns relating to their use in criminal trials more broadly, this recommendation also specifically addresses concerns that family violence perpetrators are using such materials against victims in family law proceedings and to discredit them in criminal law proceedings.
17 Recommendation 71: Time limits for applications. It is proposed that there be longer application time limits for family violence victims (10 years as opposed to 3 years), as well as a further discretion for the proposed scheme decision maker to extend the application time limit having regard to the nature, dynamics and circumstances of the criminal act, including whether it occurred in the context of a pattern of abuse, including family violence.
18 Recommendation 79: Factors to be considered by the decision maker when determining an application. It is proposed that under the proposed Act, victims would no longer need to make a report to police, and co-operate with police and prosecution, as is currently required under section 52 of the VOCAA. Instead, under the proposed Act, a police report may be used by an applicant to assist them to meet evidentiary requirements for scheme eligibility. This responds to stakeholder concerns that such requirements are particularly difficult for victims of family violence to comply with because of the nature and dynamics of family violence. Additionally, it is proposed that the previous section 54 ‘character and behaviour’ considerations under the VOCAA be replaced with a more specific consideration of an applicant’s criminal history (in certain circumstances). Many of the broader character and behaviour considerations were particularly problematic for family violence victims because of the nature and dynamics of family violence—including the decision maker being required to have regard to perpetrator benefit, contributory conduct and provocation, which may lead to ‘victim blaming’.