FBM v Commissioner of Victims Rights [2022] NSWCATAD 30

FBM v Commissioner of Victims Rights [2022] NSWCATAD 30

The Tribunal set aside the respondent's decision because FBM established on the balance of probabilities that she was a primary victim of an act of violence involving sexual assault, and the Tribunal accepted her report to Ms Kelson as sufficient to satisfy the evidentiary requirements of s 39. However, because FBM had already received a category B recognition payment of $10,000 on the basis that this act and the act in claim no. 304414 were treated as related acts, she had no further entitlement to a recognition payment for this act of violence.

Jurisdiction
Australia
Judgment Date
27 January 2022
Procedural Posture
Administrative Review of Victims Support and Recognition Payment Decision / Final Decision After Hearing
Outcome
The decision of the respondent dated 1 March 2021 was set aside and a substitute decision was made; FBM was found to be a primary victim of an act of violence, but had no further entitlement to a recognition payment.
Legal Topics
['recognition Payment' 'sexual Assault' 'act of Violence' 'balance of Probabilities' 'related Acts' 'documentary Evidence Requirements' 'medical Notes']
['administrative Law' 'victims Rights and Support'] ['recognition Payment' 'sexual Assault' 'act of Violence' 'balance of Probabilities' 'related Acts' 'documentary Evidence Requirements' 'medical Notes']

Case Brief

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Procedural Posture

Administrative Review of Victims Support and Recognition Payment Decision / Final Decision After Hearing

Legal Issues

  1. 1 ['Whether FBM established on the balance of probabilities that she was a primary victim of an act of violence involving sexual assault by her neighbour.' 'Whether the documentary evidence requirements under s 39 of the Victims Rights and Support Act 2013 (NSW) were satisfied.' 'Whether FBM had any further entitlement to victims support in the form of a recognition payment given the previous category B recognition payment of $10,000.']

Ratio Decidendi

The Tribunal set aside the respondent's decision because FBM established on the balance of probabilities that she was a primary victim of an act of violence involving sexual assault, and the Tribunal accepted her report to Ms Kelson as sufficient to satisfy the evidentiary requirements of s 39. However, because FBM had already received a category B recognition payment of $10,000 on the basis that this act and the act in claim no. 304414 were treated as related acts, she had no further entitlement to a recognition payment for this act of violence.

Court Disposition

The decision of the respondent dated 1 March 2021 was set aside and a substitute decision was made; FBM was found to be a primary victim of an act of violence, but had no further entitlement to a recognition payment.

Orders

  • ['The decision of the respondent dated 1 March 2021 is set aside and a decision is made by way of substitution.' 'FBM is a primary victim of an act of violence on the balance of probabilities for the purposes of ss 19 and 20 of the Act.' 'FBM was the victim of a sexual assault other than one referred to in ss (2)(b)...