VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	vcat reference No. Z1142/2018
	
CATCHWORDS	
Review and Regulation List – Victims of Crime Assistance Act 1996 (Vic), sections 8(2)(e) and 8(3) – Victorian Civil and Administrative Tribunal’s jurisdiction on review of decision of Victims of Crime Assistance Tribunal – whether claim for relocation costs considered by primary decision maker – whether claim for educational course an expense incurred in order to assist recovery from act of violence	

APPLICANT	JGD	
RESPONDENT	VOCAT-  Victims of Crime Assistance Tribunal	
WHERE HELD	Melbourne	
BEFORE	A. Eastman, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	2 May 2019	
DATE OF ORDER	14 June 2019	
CITATION	JGD v Victims of Crime Assistance Tribunal (Review and Regulation) [2019] VCAT 871	

The Tribunal records that on 28 March 2019, the Tribunal made an order under the Open Courts Act 2013 (Vic) that:

1.	The applicant in this proceeding must be referred to using the acronym set out above.
2.	The publication of any report of the whole or part of these proceedings to the extent it would disclose the name and address of the applicant, and the publication of any information derived from these proceedings which could reasonably be expected to enable such identification, was prohibited.
3.	The order applied throughout Australia on the basis that the orders and reasons may be published on Austlii and elsewhere which can be accessed throughout Australia.
4.	The order operates until the death of the applicant.
OrderS
1.	Under section 59 of the Victims of Crime Assistance Act 1996 (Vic) and section 51(2) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the respondent’s decisions made on 22 October 2018 and 7 November 2018 are affirmed.
2.	Liberty to apply as to costs. 

A. Eastman
Member			

APPEARANCES:		
For Applicant 	Ms E Lagos of Counsel	
For Respondent	Mr J Bayly of Counsel	

Reasons
Background
1.	This proceeding concerns an application for financial assistance by a victim of an act of violence brought under the Victims of Crime Assistance Act 1996 (Vic) (VOCA Act). 
2.	The applicant had been in a relationship with her former partner, the father of her two children, (offender) between about 2009 and 2015. It is not disputed that the offender was physically and emotionally abusive towards the applicant throughout the relationship.
3.	A particularly serious episode of offending occurred in March 2012 whereby the offender, in breach of an intervention order, went to the applicant’s home. The applicant was verbally abused by the offender, choked and punched in the jaw. When the police arrived at the applicant’s home to arrest the offender, he resisted and had to be physically subdued with the assistance of oleoresin capsicum spray.
4.	The offender was bailed to appear in court in respect of the offences. During the adjournment period the offender made threats to kill the applicant to the effect that he would shoot the applicant should she give evidence against him. The offender was also charged in relation to these threats.
5.	In July 2012 the offender was convicted of several offences arising out of his conduct in March 2012 including unlawful assault, contravening an intervention order and making threats to kill. He was convicted and sentenced to a six-month term of imprisonment, 5 months of which was suspended for 12 months and one month was to be served immediately.
6.	In 2013 the applicant and the offender reconciled after the birth of their second child. The relationship remained abusive with the offender threatening the applicant with death should she try to leave him. In 2015, concerned with the deteriorating mental health of the offender and his increased drinking, the applicant ended the relationship. A second intervention order was obtained at this time.
7.	On 23 February 2016 the applicant applied for assistance from the Victims of Crime Assistance Tribunal (VOCAT) under the VOCA Act for counselling expenses. On 22 March 2016, the applicant’s solicitors wrote to VOCAT requesting ‘an interim award for security expenses’, namely, the cost of installing a security system at the applicant’s home. Then on 2 May 2016, the applicant’s solicitors wrote to VOCAT stating that the applicant sought an award of assistance in respect of undertaking a vocational education course, namely, a Diploma of Community Services (Diploma).
8.	On 11 September 2018 VOCAT made an interim award of assistance in favour of the applicant (interim award) comprising the following amounts:
•	$3,250 in special financial assistance under s 8A of the VOCA Act;
•	$390 in respect of counselling expenses already incurred;
•	$1,300 for 10 counselling sessions of 60 minutes duration to be incurred in the future; and
•	$2,500 in respect of the cost of installing a security system at the applicant’s home.
9.	There is no dispute concerning the amounts awarded for special financial assistance or the counselling expenses incurred up until that time. It is also not disputed the applicant has not pursued the amounts awarded for future counselling services or for the costs of installing a security system.
10.	On 22 October 2018 VOCAT decided that the amount of its final award of assistance in favour of the applicant would be that provided for in the interim award (final award).
11.	By letter dated 23 October 2018 the applicant applied to VOCAT for the final award to be varied by increasing the amount awarded in respect of the installation of a security system to $5,935. On 7 November 2018, VOCAT refused to vary the amount of assistance it had awarded.
12.	In her application to the Tribunal dated 17 December 2018 the applicant stated the reason for making the application as:
•	Refusal to award assist recovery expenses (educational expenses): and
•	Refusal to vary safety related expenses (increased cost of home security expenses awarded).
13.	By letter dated 2 April 2019 the applicant’s solicitors notified VOCAT and the Tribunal that their client had moved interstate following multiple breaches of the second intervention order by the offender. It was said that the applicant therefore abandons her claim for security expenses but makes a new claim for the costs of relocating.
14.	It was not disputed that in the proceeding before me the applicant seeks:
•	An award of assistance under the VOCA Act related to the applicant relocating from Victoria to another State (relocation claim). The amount of assistance sought for the relocation claim is $8,423.35; and 
•	Review of VOCAT’s decision not to make an award of assistance under the VOCA Act in her favour in respect of the cost of undertaking the Diploma (education claim). The amount of assistance sought for the education claim is $10,643.89.
15.	For the reasons that follow:
•	I accept VOCAT’s submissions that the Tribunal has no jurisdiction to hear and determine the relocation claim as that claim has not been the subject of a decision by VOCAT; and
•	I am not satisfied the Diploma was an expense reasonably incurred by the applicant to assist her recovery from the act of violence. I have therefore decided to affirm the decision of VOCAT to refuse to award the education claim.
16.	The applicant is at liberty to seek a new variation from VOCAT with respect to the relocation claim. That claim will then need to be considered, on its merits, by VOCAT. As the applicant abandoned the claim to this Tribunal regarding VOCAT’s refusal to vary the amount awarded for security costs, I affirm the final award made by VOCAT which is reflected in VOCAT’s decision of 22 October 2018 and VOCAT’s decision of 7 November 2018 in which it refused to vary the amount of assistance it had awarded in its final award. 
The Hearing
17.	VOCAT was represented by Mr Bayly of Counsel. VOCAT relied upon the materials filed with the Tribunal under s 49 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act), as well as additional material which had been electronically filed with the Tribunal on 15 April 2019.
18.	Ms Lagos of Counsel appeared on behalf of the applicant. Notwithstanding she now resides interstate, the applicant attended the hearing in person and gave evidence. In this regard I note that an application had been made to the Tribunal, and granted, for the applicant to appear by way of video link. However, I was told at the hearing, the requirements of the interstate district court where it was envisaged the applicant would attend via video link were prohibitive such that the applicant decided to attend before the Tribunal in person.
19.	In addition to the s 49 material, further material was filed on behalf of the applicant during the hearing. The applicant’s mother had prepared a statement prior to the hearing and she also attended and gave evidence. 
20.	Each party prepared and spoke to their helpful written submissions. I have, when relevant to do so, referred to the submissions in the paragraphs below. 
21.	In addition to the evidence regarding the circumstances which led to the applications to VOCAT, I heard detailed evidence about the ongoing breaches of the intervention order by the offender and the steps the applicant has taken, and continues to take, to ensure the offender is held to account for such breaches. In order to avoid identifying the applicant, I have only described some matters relating to those issues in summary form below.
The Legislative Framework 
22.	The purpose of the VOCA Act is to provide assistance to the victims of crime. Section 1 (2) of that Act states that the objectives include:
•	To assist victims of crime to recover from the crime by paying them financial assistance for expenses incurred, or reasonably likely to be incurred, by them as a direct result of the crime; and
•	To pay certain victims of crime financial assistance (including special financial assistance) as a symbolic expression by the State of the community’s sympathy and condolence for, and recognition of, significant adverse effects experienced or suffered by them as victims of crime.
23.	An application for financial assistance under the VOCA Act must be made within two years of the occurrence of the act of violence.
24.	A ‘primary victim’ of an act of violence is a person who is injured or dies as a direct result of an act of violence committed against him or her. An ‘act of violence’ is a criminal act or a series of related criminal acts, whether committed by one or more persons, that has directly resulted in injury or death to one or more persons.
25.	Section 8 of the VOCA Act provides that a primary victim of an act of violence may be awarded assistance of up to $60,000.
26.	Relevant here, the assistance awarded to a primary victim may include amounts ‘for safety-related expenses actually and reasonably incurred, or reasonably likely to be incurred, by the primary victim as a direct result of the act of violence.
27.	Further, section 8(3) of the VOCA Act provides that ‘in exceptional circumstances’ an award may include a sum within the $60,000 limit, ‘for other expenses actually and reasonably incurred, or reasonably likely to be incurred, by the primary victim to assist his or her recovery from the act of violence.’
28.	Where an applicant seeks an additional award of assistance after an award of assistance has been made, section 60 (1) of the VOCA provides that the VOCAT may vary the award in any manner that the VOCAT thinks fit. However, this is subject to section 60 (3) which provides in considering an application for variation, the VOCAT must have regard to any fresh evidence that has become available since the award was made or last varied; any change of circumstances that has occurred since the award was made or last varied; any payments received or payable to the applicant; and anything else that the VOCAT considers relevant. 
29.	The review jurisdiction of the Tribunal is created by s 42 of the VCAT Act and the VCAT functions on review are set out in s 51 of that Act. Section 42 of the VCAT Act provides that ‘review jurisdiction is jurisdiction conferred on the Tribunal by or under an enabling enactment to review a decision made by a decision maker’.
30.	Section 59 (1) of the VOCA Act provides that: 
(1)	A person whose interests are affected by the relevant decision may apply to the Victorian Civil and Administrative Tribunal for review of a final decision of the Tribunal—
(a)	refusing to make an award of assistance on an application under Division 2 of Part 3;
(b)	determining the amount of assistance on an application under Division 2 of Part 3;
(c)	refusing to vary an award under section 60;
…..
31.	It is not disputed that in exercising its review jurisdiction the Tribunal is to stand in the shoes of the primary decision maker and determine what is the correct and preferable decision having regard to the whole of the evidence placed before it.
32.	However, on a review, the Tribunal is obliged to address the same question as was before the primary decision maker. It has no power to review a totally different question.
Relocation Claim
33.	I must first determine the threshold question which has been raised, namely, does the Tribunal have jurisdiction to determine the relocation claim. This, in turn, requires me to determine what was the issue VOCAT, as the primary decision maker, was asked to consider and is it the same issue that the Tribunal is now being asked to consider in this review.
34.	In considering the issue addressed by VOCAT, it is useful to set out the material submitted to it insofar as it related to the claim made by the applicant pursuant to s(8)(2)(e) of the VOCA Act, namely, for ‘safety related expenses.’
VOCAT’s decision
35.	On 22 March 2016 the applicant’s solicitors wrote to VOCAT requesting ‘an interim award for security expenses.’ In the supporting application form the category nominated for which assistance was sought, was ‘safety related expenses’, as opposed to, for example, medical expenses or counselling expenses. In response to the question ‘What assistance are you seeking?’ posed under the section headed ‘Assistance Sought’, the words ‘security expenses’ were inserted. A quotation for installing a security system at the applicant’s home in the sum of $2,180.00 accompanied the application.
36.	For over two years various correspondence passed between VOCAT and the applicant’s solicitors where it seems VOCAT sought to address the claims on the papers. For the most part it concerned requests by VOCAT for further material and/or submissions in relation to the education claim and the relevant responses from the applicant’s solicitors. 
37.	On 11 September 2018 VOCAT made an interim award of assistance in favour of the applicant as set out under paragraph 8 above. Included in this interim award was an amount of $2,500 in respect of the cost of installing a security system at the applicant’s home. The interim award states ‘Safety related: SECURITY SYSTEM - $2500.00’.
38.	On 22 October 2018 VOCAT decided the amount of its final award of assistance in favour of the applicant would be that provided for in the interim award. VOCAT’s decision was sent to the applicant by letter dated 23 October 2018.
39.	By letter dated 23 October 2018 the applicant’s solicitors enclosed a ‘security quote’ dated 4 October 2018 from a different company which was for the installation of a more expensive security system for the amount of $5,935.00. The letter noted ‘In respect of the security quote, our client has endeavoured to find the most cost-effective provider. This quote was the least costly one she could obtain.’  Statements made to the police by the applicant on 15 and 18 October 2018 detailing the offender’s breaches of the intervention order were also enclosed in support of the application. The breaches were by way of multiple texts messages sent by the offender to the applicant and screenshots of the text messages were also attached. The letter explained that the applicant had been in touch with the police about the breaches, including earlier breaches, and had been told that some breaches were now statute barred. The letter said that it was believed a warrant had been issued for the offender’s arrest but that he had been listed as ‘absconded’. The letter stated:
Our client understandably remains on high alert and concerned for her safety and that of her children’s. She feels the only way that this will ever cease is if she leaves the jurisdiction, as the offender is seemingly ‘getting away’ with the breaches. 
40.	On 7 November 2018 VOCAT refused to vary the amount of assistance it had awarded. The reasons stated ‘The Tribunal is not prepared to vary the original award. No material regarding breach of IVO. Doesn’t relate to the property or physical wellbeing of the applicant.’ 
41.	By letter dated 22 November 2018 from VOCAT to the applicant’s solicitors, VOCAT stated ‘…the order refusing to vary an award of assistance made 7 November 2018 relates to your application for variation where security expenses were sought’.
42.	In the covering letter enclosing the applicant’s application for review of VOCAT’s decision, it is stated ‘The application is seeking increase of award for security costs ($5,935 sought)’. The application itself states the reason for the application as being ‘refusal to vary safety related expenses (increase cost of home security related expenses awarded)’.
43.	By letter dated 2 April 2019 the applicant’s solicitors stated that their client ‘made the decision to leave the State of Victoria after Victoria Police were unable to charge or locate the offender, following multiple breaches of the intervention order and warrants being issued’ and that ‘the applicant therefore makes a claim for the costs of relocating and abandons her claim for security expenses.’
Submissions
44.	Mr Bayly submitted that the Tribunal does not have jurisdiction to consider the relocation claim. Mr Bayly referred me to the decision of the Honourable Justice Forrest in Dawson v Greyhound Racing Victoria (Dawson) and submitted that it follows from that judgment:
…the Tribunal’s review jurisdiction can only be invoked in respect of a question that has been considered and answered by a primary decision maker. It cannot be invoked in a way that requires the Tribunal to undertake the first exercise of a primary decision maker’s original jurisdiction….In this regard, whilst ss 59(1)(b) and (d) of VOCA Act authorise the Tribunal to review a decision of the [VOCAT] with respect to the amount of assistance to be awarded to an applicant, they do not authorise the Tribunal to review such a decision on the basis that the amount of assistance awarded by the [VOCAT] does not include an amount in respect of an expense that was not claimed by the applicant and that therefore was not the subject of any decision by the [VOCAT].
45.	Mr Bayly submitted that VOCAT has never been asked to make an award of assistance to the applicant in respect of the cost to her of relocating away from Victoria. Therefore, the applicant is asking the Tribunal to address a question that has not been the subject of any decision by a primary decision maker and the Tribunal’s review jurisdiction does not extend to this. Mr Bayly said, ‘While this is an inconvenient result, it necessarily follows from the nature of the Tribunal’s review jurisdiction.’
46.	Mr Bayly went on to submit that, alternatively, since the relocation claim was not made until after the final award was made, if the Tribunal does have jurisdiction to consider the claim, it must consider it on the basis that it is a claim for a variation of the final award under s 60 of the VOCA Act.
47.	In her written submissions Ms Lagos said the Tribunal did have jurisdiction to consider the relocation claim. As I understood the way this submission was put, Ms Lagos did not dispute that the Tribunal must consider the same question raised for consideration before the primary decision maker. It was said, however, that the question raised both before VOCAT and now before the Tribunal related to the reasonable cost of ‘safety related expenses.’
48.	In her written submissions Ms Lagos said:
The applicant originally sought an award under s 8(2)(e) for ‘safety related expenses’…At VOCAT, that safety related expenses were identified as security
The applicant is still seeking safety related expenses under s 8(2)(e) but now is identified as relocation costs.
 …the only difference is the type of safety related expense that is sought’.
49.	Ms Lagos said the type of safety related expenses sought are interchangeable as she said the same issue arises for consideration, namely, whether they are reasonable safety related expenses.
50.	Ms Lagos sought to distinguish the present matter from the facts the subject of the Dawson case. It was said in the present case the Tribunal was being asked to address the same question in relation to a safety related expense under s8(2)(e) and that the Tribunal was not being asked to consider a completely different issue like, for example, holiday costs.
51.	Ms Lagos also submitted that the claim for relocation costs was sought as a variation of the final award under s 60. She said VOCAT had failed to consider the provisions of ss 60(3)(a) and (b) when refusing the application to vary the award. In this regard Ms Lagos referred to the applicant’s solicitors letter dated 23 October 2018 to VOCAT, in which the applicant’s solicitors canvassed the issue of relocation with the Tribunal by referring to the applicants fear and stating ‘..that the only way it will cease is if she leaves the jurisdiction..’. It was submitted that this request to vary the amount awarded for security costs encompassed the relocation costs and that VOCAT ‘had already been made aware of the possibility of relocation’.
52.	Finally, it was submitted the Tribunal could increase the amount of the award to include the relocation claim under s8(2)(e) or s 8(3) of the VOCA Act if the Tribunal was satisfied that there are exceptional circumstances and that to do so would assist the applicant in her recovery. During the hearing before me Mr Bayly said, in response to this submission, that the Tribunal could consider the relocation under s 8(2)(e) or s 8(3) of the VOCA Act but only if the Tribunal held that it had jurisdiction to decide the claim. Mr Bayly confirmed VOCAT’s position was that the Tribunal had no jurisdiction to hear the claim. 
Findings
53.	The principle that, when exercising its review jurisdiction, the Tribunal can only review matters which have been the subject of a reviewable decision by a primary decision maker is well settled. In Dawson, the Honourable Justice Forrest reviewed and cited with approval the authorities relied upon in support of this principle. I refer, in particular, to the oft cited passage from Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (HBF), where the Full Federal Court held that:
It is, of course, well established that the Tribunal determines what was the correct or preferable decision having regard to the whole of the evidence placed before it. It is not confined to the evidence which was before the primary decision maker. The Tribunal is, however, obliged to address the same question as was before the primary decision maker. (emphasis added) 
54.	Whilst the HBF decision and the other authorities referred to in Dawson concerned appeals from the Commonwealth Administrative Appeals Tribunal (AAT), the Court considered the Tribunal’s review jurisdiction to be subject to the same limitations as the jurisdiction of the AAT.
55.	The question I must determine is whether, what the Tribunal is being asked to consider in this review, is the same issue VOCAT was asked to consider. Is the question generally and simply ‘what safety related expenses is the applicant entitled to?’, as submitted by the applicant. Or is the question more specific, namely, whether the applicant is entitled to relocation costs, being safety related expenses, as provided for under s 8(2)(e) of the VOCA Act? If so, is this a question previously considered by VOCAT.
56.	In considering the level of particularity required in determining what question was considered and answered by VOCAT, I refer to the decision of PT v Victims of Crime Assistance Tribunal which I have referenced in paragraph 32 above, and which was cited by the learned author Jason Pizer in support of the principle that, on a review, the Tribunal is obliged to address the same question as was before the primary decision maker, the Tribunal having no power to review a totally different question. In that case, VOCAT had awarded the applicant an amount of $3,508 for a holiday for the applicant and her children to the Gold Coast. The applicant had sought a variation to that award, namely, for the cost of a holiday to be taken with a friend to Cairns for $3,776. That request for variation was refused by VOCAT. When the matter came before the Tribunal on review, the applicant was not seeking a holiday to Cairns for 2 people, but rather she sought the cost of spending time out for her own respite.
57.	The Deputy President said in her decision ‘By the time of this hearing what was sought was radically different such that it was a different request from that considered by VOCAT. PT was not seeking the holiday to Cairns for 2 people. She was seeking time out on her own and respite.’
58.	The Deputy President went on to state: 
For this Tribunal to be considering and making orders with respect to an application different from that which was considered and determined by VOCAT, would mean that it would be falling into error. The Tribunal is not a primary decision maker. It can only review matters which have been the subject of a reviewable decision by a primary decision maker.
59.	In support of this view, the Deputy President cited a number of authorities, including the passage I have quoted above from the decision in HBF. In concluding the Deputy President quoted Mr Justice Brennan, then President of the AAT, where His Honour said ‘The Tribunal is not a primary administrator. It is not the original repository of powers and discretions under an enactment.’ The Deputy President went on to say ‘This is an important principle and it should not be subverted by the Tribunal concluding that any issue that might have been decided by the primary administrator at any stage may be decided by the Tribunal whatever the proper ambit of the decision under review.’
60.	I turn now to briefly consider the background facts as they arose for consideration in Dawson. The applicant had sought review of a decision of a Racing Appeals and Disciplinary Board finding the applicant guilty of disciplinary offences and disqualifying him from training greyhounds for 12 months. The Honourable Justice Forest found that before affirming the Board’s decision, the VCAT had ‘effectively amended’ one of the charges against the applicant. 
61.	What occurred was summarised as follows (omitting footnotes):
The appellant was charged with engaging in conduct which, in the opinion of the stewards or Controlling Body, was improper or which constituted misconduct. Obviously, this is a very wide rule which contemplates many disparate types of misconduct. It is settled law that a person in the appellant’s position is entitled to know the precise nature of the charge against him or her. This is what was provided by the stewards when they particularised charge 2. Omitting formalities, the charge is particularised as follows:
i.	You allowed [X] to enter and remain on a greyhound training facility.
ii.	while you knew him to be disqualified person. 
62.	During the VCAT hearing the particulars of the charge were amended to allege that the appellant omitted or failed to leave the track the moment he became aware of the disqualified person’s presence. The Honourable Justice Forest said, ‘In my view, if this is an offence at all, it is certainly a different offence to that alleged by charge 2 in its original form.’
63.	After examining the relevant authorities, the Court concluded ‘It is clear that the question for the Tribunal is not whether there has been some breach of the disciplinary rules at large but whether the breach or breaches alleged or found by the primary decision maker are established. For the reasons I have expressed in [14] – [25] herein, I consider that the charge in its amended form raised a substantially different question from that considered by the primary decision makers.’
64.	Section 8(2)(e) of the VOCA Act empowers VOCAT, and this Tribunal on review, to award an amount to a primary victim for safety related expenses actually and reasonably incurred, or reasonably likely to be incurred, by the primary victim as a direct result of the act of violence.  However, any application for safety related expenses must necessarily specify not only how much is being claimed, but why the expense is required. Adopting a phrase used in Dawson, the concept of safety related expense is very broad. It contemplates many different types of expenses, including window and lock repairs, security gates, security systems or relocation costs. In applying for safety related expenses an applicant is necessarily required to provide further ‘particulars’ of what is sought, and why that type of safety measure is required, in order that VOCAT may properly consider the request.
65.	I therefore reject the applicant’s submission that the concept of safety related expenses is interchangeable. The information and evidence required to support an award for installing a security system will be quite different to an application for relocation costs. 
66.	The initial request in March 2016 for an interim award was for security expenses. The further documentation submitted in October 2018 was for an increased amount for security expenses. I find the issue the primary decision maker, namely VOCAT, was asked to consider and determine in this case was the applicant’s claim for the installation of a security system.
67.	I do not accept the applicant’s submission that the reference in the solicitor’s letter to VOCAT that the applicant feels she may have to leave the jurisdiction ‘flagged’ with VOCAT that the applicant may seek relocation costs such that the Tribunal now has jurisdiction to hear the claim. If anything, that ‘flagging’ may have brought into question the immediacy of the move. In any event, the applicant said in her evidence before me that she only decided to leave the jurisdiction in January 2019. Accordingly, there was never any material submitted to VOCAT in support of a claim for expenses to relocate. The material submitted to VOCAT under cover of the letter dated 23 October 2018 was filed in support of the application for an increase in the award made for security costs. The subsequent correspondence received from VOCAT confirms the decision to refuse to vary its award was in relation to the application for security expenses. 
68.	A claim for relocation costs is not the same issue VOCAT was asked to consider. As VOCAT has never been required to consider a claim for relocation costs, I find the Tribunal lacks jurisdiction to determine the relocation claim. Having determined that the Tribunal does not have jurisdiction to hear the relocation claim, there is no need for me to considerate the alternative basis upon which it was submitted the claim could be reviewed, namely, as a variation of the final award under section 60 of the VOCA Act.  
69.	As was noted in VOCAT’s written submissions, whilst this is an inconvenient result, it necessarily follows from the nature of the Tribunal’s jurisdiction. Importantly, the applicant is not precluded from seeking a new variation with respect to relocation costs which will then need to be considered on its merits by VOCAT.
Education Claim
Evidence
VOCAT material
70.	On 2 May 2016 the applicant’s solicitors wrote to VOCAT enclosing a ‘Statement of Claim’ together with supporting material. The Statement of Claim sought an award of $10,340 in respect of the cost of undertaking a Diploma of Community Services. The award was sought under the category ‘Other expenses to assist recovery (in exceptional circumstances). The letter said:
[The applicant] was seeking payment for the Diploma course to assist her to recover from the acts of violence. [The applicant] is looking to further her education to support both her and her two children. The nature of the violent relationship put enormous pressure on our client, and she was unable to focus on her education and career. The course would allow [the applicant] to develop her skills and provide her with confidence. In addition, it would help her to gain meaningful employment to secure a future for her and the children.
71.	VOCAT was provided with a copy of an email dated 6 October 2016 and written to the applicant’s solicitors by the applicant’s teacher at Careers Australia, the organisation through which the Diploma was undertaken. In that email the teacher said:
[The applicant] enrolled into the Diploma of Community Services in January this year, after reflecting back on her own life experiences and wanting to support others in the same position as herself. [The applicant] feels that she is now at a stage in her life where she can provide support and be a great worker/role model to her future clients.
[The applicant] has mentioned that prior to enrolling into the Diploma of Community Services she struggled academically, and recalls feeling lost and scared, this was largely due to her dyslexia and hence dropped out of high school due to her own insecurities. [The applicant] has also shared with me her past regarding being a victim of domestic violence and how that deeply affected her self-confidence, worth and esteem. Throughout this course I have had the pleasure of watching her rebuild her life and self-esteem.
72.	After receiving a copy of the teacher’s email, VOCAT, by letter dated 4 November 2016, asked the applicant’s solicitors to provide written submissions of the legal basis for the claim for educational expenses. The applicant’s solicitors, by letter dated 6 December 2016, said:
As her teacher highlights, the course our client is taking is assisting her resilience, confidence and self-esteem, which suffered significantly as a result of the act/s of violence. Furthermore, she is gaining lifelong skills and training to better her situation and that of her children’s.
The course is also providing [the applicant] with closure on the act/s of violence as when she has completed the course, she will be able to assist others that have been in the same scenario she found herself in.’
73.	VOCAT sought clarification as to whether it was asserted the teacher was qualified to provide an expert psychological opinion. In response, the applicant’s solicitors, by letter dated 23 February 2017, said ‘Neither the writer nor the teacher is qualified to provide a psychological opinion, but the inclusion of the teacher’s comments was to highlight her observations that the educational expenses are providing our client with benefits to her resilience, confidence and self-esteem, and therefore her recovery.’ The solicitors requested a hearing date if VOCAT considered the submissions were not adequate.
74.	By letter dated 16 May 2017 VOCAT requested the applicant’s solicitors to address the legal issues raised in VOCAT’s letter dated 4 November 2016, with reference to the VOCAT Act.
75.	By letter dated 23 May 2017 the applicant’s solicitors replied to VOCAT. After referencing a decision of the Tribunal and noting the applicant had suffered years of domestic abuse, the letter said: 
The offender does not contribute to the cost of caring for the children and our client is their sole provider. Currently our client is owed $28000 in child support. The client is unable to be financially independent and her and her children currently reside with her parents.
Therefore we respectfully submit that the cost of the course does have a causal connection to the act of violence in that it relates to the need for the applicant to be able to be employed and support her children following the offender’s acts of violence causing an end to the relationship and a lack of financial support for the children.
76.	In conclusion, the letter said ‘...we refer to the correspondence from our client’s teacher previously mentioned and our previous submissions highlighting the benefits to our client’s resilience, confidence and self-esteem and therefore her recovery that the course is providing’.
77.	As stated in paragraph 8 above, on 11 September 2018 VOCAT made an interim award of assistance in favour of the applicant. No amount was awarded for educational expenses. I was told that the interim award followed a hearing before VOCAT at which the applicant was present and represented by counsel. The applicant did not give evidence at VOCAT hearing.
78.	On 12 September 2018 VOCAT sent what was described as effectively a direction to the applicant in the following terms:
Further psychological report to be filed on or before 30 October 2018 detailing the need for educational expenses assisting the recovery of the applicant.
79.	On 11 October 2018 the applicant’s solicitors provided VOCAT with a further report from Ms Steinhoff dated 11 October 2018.
80.	On 22 October 2018 VOCAT decided the amount of its final award of assistance in favour of the applicant would be that provided for in the interim award. The reasons of VOCAT were stated to be ‘The Tribunal is not prepared to vary the award made on 11 September 2018. Educational expenses refused.’ The respondent’s decision was sent to the applicant by letter dated 23 October 2018.
81.	By letter dated 12 November 2018 the applicant’s solicitors asked VOCAT to advise why it had refused the claim for educational expenses and requesting a further hearing if the refusal was being maintained.
82.	By letter dated 20 November 2018, VOCAT set out its reasons for refusing to make an award of assistance in respect of the Diploma. Relevantly, it stated in respect of the psychological report submitted in support of the claim:
‘The report at paragraph 4 of the report {sic} is merely a reflection of the long-held wishes of the applicant pre and post the application, that, in itself, is insufficient to justify the exercise of a discretion in favour of the applicant.
The applicant’s evidence 
83.	The applicant said her relationship with the offender began in around 2009 when she was in her early twenties. At the time she was homeless, having recently left the family home due to a falling out with her parents. The applicant said she had told her parents of having been sexual assaulted by her brother when she was younger. Her brother denied the abuse and her parents had not supported her at the time, instead believing her brother.
84.	Within about 3 months after meeting the offender the applicant fell pregnant. She said it was after the birth of their first child that the offender completely changed and became controlling.
85.	Over time, the offender became physically abusive. The applicant said she did not initially report the physical abuse but had confided in a neighbour of her fear of the offender. 
86.	The applicant obtained the first intervention order in May 2011. As discussed in paragraphs 3 to 5 above, there was a serious breach of this order in March 2012. The applicant said that on the day the offender was sentenced, she found out that she was pregnant with her second child.
87.	During the time the offender was incarcerated, the applicant sought help from, and went to stay at, a woman’s refuge. She said upon the offender’s release from jail, he had managed to get her mobile number and contacted her, threatening to kill himself. Subsequently they reunited in January 2013 upon the birth of their second child.
88.	The applicant remained in a relationship with the offender between 2013 and mid-2015. She said he was verbally abusive and controlling - she was not allowed to work or socialise. She said she was financially dependent on the offender.
89.	The applicant reconnected with her parents in 2014.
90.	The applicant ended the relationship with the offender in about mid-2015. She and the children stayed with her parents. A second intervention order was obtained in November 2015. The order only permitted the offender to contact the applicant via phone, if the contact related to the children. However, the applicant said the offender continued to verbally abuse her and would try to cover up the breaches of the intervention order by then asking about the children. 
91.	The applicant said that after separating from the offender she felt depressed and thought the best way to overcome her feelings was to attend school ‘and change the legislation to help victims’. She said that she never completed her schooling and had worked in retail since leaving school. She was last employed in 2009, before gaining employment upon completion of the Diploma. She said she researched what courses were available, considered enrolling in law school and explored other pathways. She said she decided upon the Diploma of Community Services as she could get into policy making and was inspired to go down the community path. 
92.	The applicant enrolled in the one-year course in 2016. She gave evidence about some of the subjects she had studied as part of the Diploma, including advocacy for clients, trauma-based work and how trauma can affect lives. She said she gained not only knowledge through the subjects studied, but also understanding about her own personal circumstances. When cross examined, the applicant explained the course provided qualifications to work in several community settings including obtaining work in the drug and alcohol area, counselling, trauma and disability fields.
93.	The applicant excelled at the course, completing the Diploma early and being named valedictorian. Upon graduating, the applicant was required to give a speech in front of 500 people made up of her peers and their families. This was clearly a proud moment both for the applicant and her own family.
94.	After completion of the Diploma the applicant gained employment working with high risk youth. In July 2017 she was involved in a serious car accident and she is currently unable to work due to the injuries suffered. When questioned by Mr Bayly, the applicant said she is considering enrolling in a degree in Criminology and Psychology at Deakin University so that she can continue her studies whilst rehabilitating from the car accident. The Diploma is a prerequisite to undertaking that study.
95.	The applicant said she had little contact with the offender during 2016. However, the offender started sending offensive and abusive messages via phone and Facebook in 2017 following an appearance the applicant had made on a program about the child support system. The appearance arose as a result of an organization the applicant had become aware of and contacted whilst undertaking the Diploma.  
96.	The applicant reported the online abuse to the police but was told there was nothing the police could do as there was no physical address at which to execute the warrant, the abuse being from a computer at an unknown location. The applicant was notified that no further avenues of inquiry were open to her.
97.	The applicant subsequently participated in a Senate Inquiry into Cyberbullying in early 2018. She shared her experience and frustration in that forum concerning the inability of the police to charge the offender with online breaches of the intervention order, but that she had learnt a private investigator could obtain the information necessary to enable charges to be laid. The applicant said that as a result of sharing her experience, the applicant was approached by a Senator who offered to help her in her dealings with the police. She said as a result of the inquiries made by the Senator, she has subsequently learned that the police do have power to lay charges concerning online breaches of an intervention order. The applicant said that she made a complaint to IBAC concerning the conduct of Victoria Police in the handling of her case. 
98.	The applicant provided the Tribunal with a bundle of material which included emails that had passed between herself and the police concerning the reports she has made of the breaches of the intervention order by the offender. She said the emails illustrate the lengths she says she has had to go to, to ensure the offender is charged with breaches. The bundle also included the emails which passed between herself and the Senator, as well as a letter of apology from Victoria Police.
99.	The applicant said the Diploma has given her confidence and courage to stand up for her rights and the rights of her children. She said also the course had put her in contact with various organisations that have given her a forum in which to share her experience, and to have a voice.
100.	Towards the end of last year, the applicant received particularly disturbing texts from the offender. The applicant reported these texts to the police and made relevant statements dated 15 and 18 October 2018. These statements were submitted to VOCAT in support of the applicant’s variation claim for increase security costs.
101.	The applicant obtained a further intervention order in December 2018 at the same time as the offender was charged with seven contraventions of an intervention order. He was granted bail but failed to appear in Court on the required date. A warrant for his arrest was issued and he was subsequently arrested and bailed to appear again in late May 2019. 
102.	The applicant said after the offender was charged in December and bailed, she decided to move interstate. The applicant said she was concerned for herself, the children and her parents given the previous threats to kill made by the offender and given he knew where the applicant was staying. 
103.	In January 2019 the applicant moved interstate with her children.
Mother’s evidence
104.	The mother said her daughter and the offender, and their children, came to live with them in 2015 as they were homeless. She said the offender was subsequently asked to leave the family home and her daughter and children remained. I note the applicant said in her evidence that she left the offender and went, with the children, to live with her parents. I do not think anything turns on this discrepancy in the evidence. 
105.	The mother provided a statement to the Tribunal. She said how challenging it had been emotionally, psychologically and financially for her daughter in making the decision to move away from the destructive relationship with the offender.
106.	In her evidence before me, the mother said her daughter had seemed depressed and in need of professional help after the end of the relationship with the offender. She said she was referred to a psychologist and, as time went on, needed to go less frequently. The mother said the psychologist got her daughter to a point where she could look at schooling or work.
107.	The mother described the change in her daughter since undertaking the Diploma, stating that she and her husband had watched their daughter ‘regain her ‘spunk’ and her ‘voice’ which has given her the ability to stand up for herself and her children’. She said, ‘The opportunity to study and then work in her chosen field enabled her to see that she can provide a much brighter future for herself and her [children].’ She said the Diploma was a course her daughter could relate to, and that it helped her research how she could get back on her feet and rehabilitate herself.
108.	The mother described her daughter as being paranoid about locking the house and security, and that whilst she said she personally didn’t feel threatened, her daughter felt the only way to keep herself and her children safe was to move interstate.
Psychologist reports
109.	During the hearing I was referred to two reports prepared by Ms K Steinhoff, the first dated 23 February 2016 and a second report, described as an addendum, dated 18 October 2018. The s 49 material also contained a letter dated 15 January 2016 from Ms Steinhoff to the applicant’s general practitioner and an email dated 4 July 2018 from Ms Steinhoff to the applicant’s solicitors. For ease of convenience I have discussed each of the documents prepared by Ms Steinhoff in chronological order below. 
110.	The 15 January 2016 letter from Ms Steinhoff to the applicant’s general practitioner reported the outcome of the sessions conducted with the applicant. The letter thanked the doctor for referring the applicant ‘to therapy to address her PTSD’ and noted that the applicant had presented with ‘panic attacks, poor sleep hygiene, low energy, concentration and memory difficulties and was always teary’. It went on to state: 
[The applicant] was very commitment (sic) to therapy, easy to engage and very responsive to the learnings. I introduced her both to CBT and Acceptance and Commitment therapy. [The applicant] developed skills in problem solving and assertiveness. [The applicant] learnt how to be in control of her mind chatter using mindfulness and meditation techniques.
…
[The applicant] made great progress. She has reconnected with her family of origin; she is more attentive to her children and she has enrolled in a course this year. We agreed that therapy is no longer required given the gains she has made. 
111.	The initial report of Ms Steinhoff dated 23 February 2016 was prepared in support of the application to VOCAT for additional counselling. The report notes that the applicant had attended 12 sessions to date, having commenced counselling in September 2015.
112.	The report states the applicant had initially presented with ‘low mood, anxiety, severe panic attacks, very poor sleep hygiene, feelings of worthlessness and hopelessness, low energy and difficulties concentrating. She also described poor memory’. It noted under relevant prior psychological history the sexual abuse as a child and that the applicant had dyslexia and experienced difficulties with learning as a result.
113.	In explaining the link between the applicant’s psychological problems and the act of violence, the report notes ‘There is a direct link between the applicant’s mental health presentation and being a victim of 8 years of severe family violence. The applicant struggled to self soothe and self-regulate …’. Under the proposed treatment plan, Ms Steinhoff detailed the specific treatment goals that she and the applicant had set. It included work on addressing and solving her panic attacks, teaching her to self soothe and self-regulate with relaxation and mindfulness exercises, working on her self-worth and self-esteem and ’develop interests and hobbies and explore career opportunities’. In providing a recommendation for a specific number of counselling hours to be provided, Ms Steinhoff said ‘The applicant has received 12 sessions of therapy and has made remarkable progress. Her motivation was largely driven by wishing to be a good and protective parent to her children, along with having wonderful extended family support.’ It went on state ‘Our sessions have ceased given the positive progress, but I would suggest that a maintenance program be in place or a relapse program could be introduced if required.’
114.	Under the final section of the report which required the psychologist to provide an assessment of the applicant prognosis it stated ‘The applicant’s mental health has the potential to deteriorate/relapse given her childhood history of sexual abuse. Further there is added stress with her older [child] being recently diagnosed with having a learning disability and possible autism. However, she has strong family support, great purpose being a loving doting mother, is highly motivated and is presently engaged in studies to create a career for herself.’
115.	About 2 ½ years later, in an email from Ms Steinhoff to the applicant’s solicitors dated 4 July 2018, Ms Steinhoff says that the applicant’s ‘mental health has deteriorated, and her PTSD symptoms have become amplified’. It says the applicant ‘struggles with sleep, she finds it hard to concentrate, her memory is poor, and she is experiencing frequent panic attacks’. It said the applicant ‘is preferring to stay at home, she shifts quickly into fight/flight response when she is in public…and takes a long time to self soothe and self-regulate.’ Ms Steinhoff said that the mental health decline was directly associated with the offender contacting the applicant via text messages and fake Facebook accounts.’ It concluded:
[the applicant] responds well to both CBT and more specifically, Acceptance and Community therapy. She enjoys learning how to turn down her mind chatter, work on mindfulness exercise to self-regulate and return to social engagement from her flight/fight activation response.
I would like to suggest a further 10 sessions be funded by VOCAT…I am recommending that for the first two months [the applicant] attend fortnightly and then in the next three months sessions reduce to every three weeks. Finally, the remaining sessions be utilized on a monthly basis yet there be provision to be flexible on the use of her 10 sessions subject to her progress in the sessions.
116.	Given the timing of this email, it seemed to me it may have been provided in preparation for the VOCAT hearing held on 11 September 2018. Following that hearing VOCAT made an interim award which included an amount for future counselling services. 
117.	The second report prepared by Ms Steinhoff was dated 11 October 2018 and was submitted to VOCAT in accordance with the direction made by it following the VOCAT hearing on 11 September 2018. In that report Ms Steinhoff, after describing the applicant’s prior history and details concerning therapeutic interventions undertaken said:
[The applicant] was referred by Victims of Crime to attend therapy to address the psychological trauma resulting from physical, emotional and financial abuse from her ex-partner.  [the applicant] meets the diagnosis of post-traumatic stress disorder.
…
I introduced a range of therapeutic interventions to aid in [the applicant’s] mental health improvement. Within the principles of cognitive behavioural therapy, a happiness formula was introduced. To explore hobbies/interest, develop achievements/to do lists and work on social supports and networks. This formula creates new meaning, purpose and direction for clients and [the applicant] responded to this extremely well.
[The applicant] was given a voice, felt empowered and identified that she had always wanted to pursue a career and believed that engaging in study would improve her life opportunities, ensure that she would never need to rely on a man in the future financially and would ultimately give her the new meaning, purpose and direction. This course has helped give [the applicant] confidence, address the social withdrawing, helped her refocus, see improvements in her concentration and excitedly I retested her and noted her depression, stress and anxiety scale ratings has improved.
Her course has improved her mental health and sustained her mental health.
Submissions
118.	It is not disputed that each of the offences committed by the offender and for which he was convicted and sentenced was an ‘act of violence’ within the meaning of the VOCA Act and that the applicant was a ‘primary victim’ of an act of violence. 
119.	As stated above, s 8(3) of VOCA Act states that in exceptional circumstances, an amount may be awarded to a primary victim for an expense reasonably incurred by the primary victim to assist his or her recovery from the act of violence.
120.	Ms Lagos submitted that it was a combination of factors that gave rise to ‘exceptional circumstances’ in this case, including:
•	The previously disclosed historical sexual abuse by her brother and history of depression which contributed to the applicant’s inability to sever ties with the offender;
•	The prolonged period of exposure to family violence since 2009;
•	The serious conduct the subject of the offender’s conviction and incarceration in July 2012;
•	The offender’s continued failure to comply with intervention orders and failure to appear at court when bailed;
•	The threats made by the offender to the applicant;
•	The continued breaches of the intervention orders by the offender, including by sending of abusive texts, thereby necessitating the obtaining of a further intervention order in December 2018;
•	The complaint made to IBAC by the applicant due to alleged police inaction in handling earlier breach of intervention order; and
•	The need for the applicant to be ‘hyper vigilant’ because the offender has a history of failing to appear in court.
121.	Ms Lagos submitted the Diploma had assisted the applicant in her recovery in that:
•	The applicant’s psychological presentation improved;
•	Upon completion of the course the applicant was able to obtain employment directly related to the course;
•	The initial report of psychologist referred to exploring career opportunities and, in the October addendum, Ms Steinhoff said the Diploma had improved the applicant’s confidence, addressed the social withdrawing, helped her refocus, and that, after re-testing, her depression, stress and anxiety scale ratings had improved; and
•	the benefits gained by completing the course were highlighted in the applicant’s appearance in a program to discuss child support and need for reform, the applicant participating in a Senate inquiry, and the continued persistence in ensuring the offender is held to account for breaches of intervention orders.
122.	Ms Lagos said “It is submitted the course gave her the confidence and the insight to be able to address issues pertaining to her safety and in empowering her to have a voice. The course enabled her to obtain employment, develop self-esteem and confidence to gain more insight into domestic violence and how to protect her and her children from becoming victims again’.
123.	VOCAT did not make submissions either for or against the award for education expenses but rather made submissions as to the principles of law that should be applied by the Tribunal.
124.	In his written submissions, Mr Bayly said, with reference to relevant supporting authorities, that in the context of the VOCA Act ‘exceptional circumstances’ is understood to mean unusual, special, out of the ordinary course. Mr Bayly submitted that, sadly, family violence is a widespread problem and that it is not, in and of itself, exceptional. He conceded, however, that the applicant’s case involved the making of intervention orders over a period of years, the orders have been repeatedly breached and the events perpetrated by the offender in March 2012 involved a significant breach of the intervention order.
125.	So far as whether payment of an expense would assist an applicant to recover from an act of violence, Mr Bayly submitted that:
...the Tribunal must consider whether it is ‘satisfied that the expense will assist recovery, rather than that it would, for example, be good for[ the applicant] and a boost, as it would be for anyone. There is both an objective and a subjective element to the test. Thus, the Tribunal must be satisfied ‘not merely that the expenditure should have the effect or be reasonably thought to have the effect of promoting recovery; but it must also be incurred for that purpose’ 
126.	Mr Bayly said completing a course of study would be a financial and emotional boost for anyone, regardless of their circumstances. On the other hand, in his written submissions he said there was evidence from the applicant’s teacher that the Diploma enabled the applicant to ‘rebuild her life and self-esteem’ after years of family violence, and the psychologist’s evidence that the Diploma addressed the applicant’s social withdrawal and that the applicant undertook the Diploma so as to ‘ensure that she would never need to rely on a man in the future financially’.
127.	It is not disputed that if the Tribunal determines an award of assistance should be made in respect of the education claim, it should specify the award be paid to the Australian Taxation office to discharge the applicant’s HELP debt.
Findings
128.	I accept VOCAT’s submission that before an award may be made under s 8 (3) of the VOCA Act, the Tribunal must be satisfied not only that there are ‘exceptional circumstances’ but that the expense was reasonably incurred in order to assist the primary victim in his or her recovery from the act of violence. I also accept that this requires the relevant expense to be assessed both objectively and subjectively, that is, the test is whether the relevant expense;
•	Is one that would, as an objective matter, assist the applicant’s recovery from the relevant act of violence; and
•	Is one that, as a subjective matter, was incurred by the applicant for the purpose of assisting her recovery from the relevant act of violence.
129.	Finally, if the above three conditions are meet, the Tribunal has a discretion to make an award under s 8(3). In determining whether to exercise its discretion, the Tribunal must have regard to whether the expenses claimed are proportional and reasonable.
130.	Whilst family violence may not, in and of itself, be exceptional, I am satisfied, having regard to the act of violence, together with the surrounding circumstances, that the facts of this case amount to exceptional circumstances for the purposes of s 8(3). In Gandy v Victims of Crime Assistance Tribunal (Gandy) the Tribunal considered the fact that the applicant and her husband ‘have been consumed by the aftermath of this event’ supported a finding that exceptional circumstances existed in that case. In the present case, I am satisfied the repeated breaches of the intervention orders by the offender over a period of 7 years, together with the fact that the applicant, years after ending the relationship with the offender, has had to actively take steps to enforce her rights so that the offender is held to account, on top of the act of violence committed by the offender on 12 March 2012, amounts to exceptional circumstances.
131.	I turn then to consider the evidence relevant to the issue of whether the education claim was an expense reasonably incurred in order to assist the applicant to recover from the act of violence. 
132.	There is no doubt there is evidence that the Diploma has been of benefit to the applicant. The applicant said that she has benefited, not only in terms of her knowledge and future employment opportunities, but also her self-confidence. The applicant’s mother and teacher said they had watched the applicant rebuild her life and self-esteem and the applicant’s psychologist, Ms Steinhoff, in her report provided in October 2018, said the Diploma had improved and sustained the applicant’s mental health. However, as the quote from the Tribunal’s decision in Jafaro v Victims of Crime Assistance Tribunal referred to above states, one would accept undertaking a course might ‘be good for [the applicant] and a boost, as it would be for anyone’. 
133.	I must be satisfied ‘not merely that the expenditure should have the effect or be reasonably thought to have the effect of promoting recovery; but it must also be incurred for that purpose.  To put it another way, there must be a causal connection between the matters the applicant seeks to improve and which have arisen as a result of the act of violence, and undertaking the course she did. Further, as observed by the Tribunal in Gandy, expert evidence from a psychologist or counsellor to the effect the expense incurred was essential to the victim’s psychological health and well-being is usually required. 
134.	In QMX v Victims of Crime Assistance Tribunal  (QMX decision) the Tribunal, when assessing whether an expense was incurred in order to assist recovery, said it proceeded on the basis ‘that the expense ought to have a therapeutic foundation supported by psychological or psychiatric evidence which demonstrates they would ‘assist’ recovery from the relevant act of violence and no more’.  
135.	As stated above, Mr Bayly summarised the principles of law which arise for consideration under s 8(3) of the VOCA Act. I have set out below the facts and decisions of a few cases decided by the Tribunal to provide further context to the way these principles have been applied. I have summarised the facts and findings only to the extent they relate to a relevant claim made under s 8(3) of the VOCA Act.
136.	In the QMX decision, a mother and her three children had been the victims of significant family violence for more than 10 years. The woman was subjected to violence in front of her children on many occasions. In that case the Tribunal was satisfied, based on the expert evidence provided, that a gym membership had had a therapeutic benefit and had improved the victims sleep and PTSD symptoms. The Tribunal said ‘While satisfied, the expense has been shown to assist recovery during a particularly intense and challenging time, that ought not to be taken as a finding that I am satisfied a gym membership will continue to fall within section 8 (3) on an ongoing basis.’. In assessing a claim for a child’s sporting activity, the Tribunal noted ‘ I have no difficulty accepting participation in sporting activities would benefit each child….What is not clear to me is how these specific activities will assist them each to recover from the acts of violence as opposed to assisting them to manage their current circumstances which arise from the past acts of violence but are also heavily impacted by the disabilities within the family and how they affect their day to day living arrangements. The specific link between the claimed expenses and recovery from the acts of violence is not sufficiently demonstrated from the evidence’.
137.	In JM v Victims of Crime Assistance Tribunal the Tribunal was required to consider a claim for assistance arising from a traumatic sexual assault perpetrated on the applicant approximately 11 years earlier when the applicant was about 10 ½ years old. The claim made by the applicant was based on progressive long-term psychological damage as a result of the abuse. Specifically, the claim included reimbursement for the cost of methadone which the applicant required to address a heroin addiction and a detoxification programme in connection with the heroin abuse. It also included the cost of a tertiary education.
138.	The Tribunal found the cost of the treatment for the heroin addiction was incurred as the direct result of the act of violence and those costs were allowed. In relation to the cost of the applicant’s education, the Tribunal said ‘What must be demonstrated is that there is something about the circumstances of the case, pertinent to the particular assistance sought, which elevates the claim above the norm. I do not doubt the applicant’s university studies will assist him on his road to recovery, …But it is also evident that he is a very intelligent and ambitious young man and that he was always destined for tertiary study. …Notwithstanding the therapeutic value of the university studies… it simply cannot be said that the need for this particular form of assistance is ‘exceptional’ or that there are other circumstances which would justify ...the expense sought.’
139.	In Mendez v Victims of Crime Assistance Tribunal the applicant had suffered an injury during an assault on her by her ex-partner. The injury included a bite to her nose which required stitches and left scarring. The offender had stated he intended to cause a permanent injury to the applicant’s nose to remind her of the assault. The assault led to the applicant being permanently scarred, experiencing persistent PTSD and depression as well as excessive use of alcohol. At the hearing the applicant gave evidence that prior to the assault she loved life and was vivacious. She said she was saving up to do a beauty course. At the time of the attack she was working part time as a bar assistant. The applicant sought, amongst other things, assistance to attend a beauty therapy course so that she could find employment as a beauty therapist in the future and assistance for the incidental expenses associated with that course, including the cost of a computer. A letter of support from her psychologist was also provided. The Tribunal found that ‘undertaking the beauty therapist course, which was her goal at the time of the attack, would facilitate a return to healthy functioning’.  The Tribunal allowed the sum of $700 being the amount for the equipment to assist the applicant to undertake the beauty therapy course. The Tribunal did not allow the cost of a computer as it said there was no evidence it would assist the applicant’s recovery.  
140.	I turn now to consider the evidence from the applicant’s psychologist in relation to the educational claim. In this regard I note there were two documents which had been prepared by Ms Steinhoff at the time the applicant commenced the Diploma in January 2016, one a letter to the applicant’s general practitioner, the other, a report for VOCAT. 
141.	In her letter to the applicant’s general practitioner dated 15 January 2016, Ms Steinhoff said that the applicant had made great progress and that it was agreed therapy was no longer required given the gains the applicant had made. In addressing the applicant’s PTSD, Ms Steinhoff described the applicant had presented with panic attacks, poor sleep hygiene, concentration and memory difficulties but went on to say that the applicant had developed skills in problem solving and assertiveness and had learnt how to control her ‘mind chatter’, using mindfulness and meditation techniques. 
142.	Ms Steinhoff’s February 2016 report to VOCAT similarly recorded that the applicant had made ‘remarkable progress’ to the point that she no longer required on going counselling. This report is consistent with the earlier letter written to the general practitioner in that it concluded therapy was no longer required given the gains the applicant had made.
143.	I note the February report did recommend that the applicant have access to further counselling, but this was stated to be because there was potential that the applicant’s mental health may deteriorate due to the childhood sexual abuse and the challenges which may arise with her eldest child being recently diagnosed with autism. These issues were not related to the act of violence.
144.	The content of these reports does not support a finding that the Diploma was undertaken in order to assist the applicant to recover from the act of violence. On the contrary, the reports state that the applicant had recovered and did not presently require any more counselling sessions. 
145.	I have also considered the October 2018 report prepared by Ms Steinhoff. In that report she stated that she had introduced a range of therapeutic activities to aid the applicant’s mental health improvement. She said together they set specific treatment goals which included ‘to explore hobbies/interests, develop achievements and ‘to do lists’ and to work on social supports and networks.’ However, there was no recommendation by Ms Steinhoff that the Diploma was a specific course required to be undertaken to assist the applicant’s psychological health and well-being, any more than Ms Steinhoff’s suggestion that the applicant explore hobbies or interests. In fact, Ms Steinhoff said it was the applicant who identified she had always wanted to pursue a career and that engaging in study would give her new meaning and direction. Whilst the pursuit of a career is an admirable desire, it is not evidence that the Diploma was undertaken in order to assist in the recovery from the act of violence.  
146.	In her evidence the applicant said that she had considered studying law but had chosen the Diploma as she wanted to work in an area where she could change legislation, help other victims and become an advocate for others. Her evidence was consistent with the statement of her teacher who said the applicant had told her she had enrolled in the Diploma because she wanted to help others and she felt that she was at a stage in her life where she could be a good role model. I find these statements demonstrate the Diploma was undertaken as a way of enabling the applicant to fulfil her passion to help other people in a meaningful way, as opposed to having been undertaken as a necessary treatment for the purpose of helping her to recover from the act of violence. 
147.	The applicant said she had not completed her schooling. Prior to her relationship with the offender, the applicant had worked in retail. Ms Steinhoff ‘s report recorded the applicant had dyslexia and experienced difficulties with learning as a result of it. The teacher’s email noted the applicant struggled academically, feeling lost and scared, largely due to her dyslexia and that she had dropped out of high school due to her own insecurities. There is no evidence that the applicant had commenced further study, or was seeking to commence further study, prior to her relationship with the offender. In these circumstances I accept undertaking the Diploma would improve the applicant’s life opportunities. The Diploma was a vocational course. I accept the Diploma has contributed to the applicant’s future employment opportunities - as it would assist anyone undertaking further study. However, improving her future employment opportunities is not evidence of undertaking a course in a therapeutic sense, that is, to assist with recovery from the act of violence. 
148.	Reference was made by both parties to the statement by Ms Steinhoff in her addendum that the applicant identified that she had always wanted to pursue a career and believed engaging in study would improve her life opportunities to ‘ensure she would never have to rely on a man again financially’. The applicant’s reliance on the offender financially, however, was not because she was not able to find employment or that she did not have a formal education, but rather it was because the offender was controlling and would not allow her to work.
149.	The letters written by the applicant’s solicitors to VOCAT, which I infer were based on the instructions received by the applicant at the time, also reflect the applicant’s desire to undertake the Diploma to further her education and develop skills in order to obtain meaningful employment so that she could support her children. The letters referred to the fact the applicant needed employment as the offender was not paying any child support and she was struggling financially. I accept that the failure of the offender to pay child support would cause financial hardship to the applicant and I accept undertaking a vocational course would assist her future employment opportunities. However, that is not evidence of undertaking the expense to aid recovery in a therapeutic sense, but rather it is an expense incurred to assist with the applicant’s future employment prospects.
150.	I note the solicitor’s letters also referenced the fact that the Diploma had assisted the applicant with her confidence and self-esteem. I reiterate, however, the test I must apply is not whether the applicant has benefited from the Diploma but rather whether the course was undertaken in order to assist recovery from the act of violence. 
151.	Finally, I turn to consider Ms Steinhoff’s email dated 4 July 2018, which was prepared in support of an application for an award to cover future counselling sessions.  In that email Ms Steinhoff described the applicant’s mental health as having deteriorated and her PTSD symptoms amplified. This email was written more than 18 months after the applicant had completed the Diploma. It specifically noted the applicant was struggling to concentrate, her memory was poor, she was preferring to stay home and taking a long time to self soothe and self-regulate. The report recommended further counselling sessions in which Ms Steinhoff could again administer CBT and acceptance and commitment therapy to the applicant which, in the past, had assisted the applicant to ‘turn down her mind chatter’ and work on mindfulness to self-regulate.  This report is consistent with the view that the therapeutic measures which had previously been recommended by the psychologist, in order for the applicant to recover from the act of violence, were in the nature of counselling sessions, in which various therapies could be administered to address the mind chatter and assist the applicant to self-regulate  and self soothe.  Those therapies had been successfully administered in February 2016 and were again being recommended in 2018. Given the Diploma had been completed at this time, it is evident the course had not addressed these symptoms, nor had it been recommended to be undertaken to do so. 
152.	Ms Steinhoff was not called to give evidence. I make a further comment about the July 2018 email. On its face the contents of this email are in some respects inconsistent with the report prepared a few months later in October 2018. In October 2018 Ms Steinhoff said the Diploma had, amongst other things, helped give the applicant confidence, address social withdrawing, helped her refocus and see improvements in her concentration.  However, in July 2018 Ms Steinhoff said the applicant was struggling to concentrate, was preferring to stay home and her memory was poor. I do not doubt that the applicant’s mental health can and has potential to regress depending on the circumstances facing the applicant. However, the statement that the Diploma assisted with the particular symptoms noted in the October report, is at odds with the statements made in the July email. 
153.	I commend the applicant on the considerable efforts she has made to move forward in her life with her focus to provide a bright future for herself and her children. It is to her credit that she has worked hard during the Diploma and this was recognised where she was appointed valedictorian. It is evident she found her voice. I do not doubt the applicant has benefited from undertaking the Diploma and that it has assisted her with her confidence and outlook on life.  As the applicant qualified for HELP assistance, she will not be required to repay the amount paid by the Commonwealth Government for the course unless and until she earns a specific wage. But for the reasons stated above, there is insufficient evidence to persuade me that the expense was incurred in order to assist the applicant in her recovery from the act of violence. Accordingly, I affirm the decision of VOCAT.
154.	Prior to the hearing, under cover of a letter dated 30 April 2019, the applicant’s solicitors enclosed evidence of the costs of the airfares incurred by the applicant in attending the hearing. The letter said, ‘Should the applicant be successful we will seek payment for her costs to attend the hearing, as it was not possible to obtain a video link from her location’. As stated above, during the hearing I was told that, whilst it was possible to obtain a video link, the cost to do so was prohibitive. After the hearing, by letter dated 28 May 2019, the applicant’s solicitors set out details of the costs they say their client would have had to incur in order to arrange a video link from the interstate court and compared it to the travel costs incurred by the applicant in attending the hearing in person. I am mindful that the VOCAT has not had an opportunity to comment on the additional information provided post the hearing. Accordingly, in the event the question regarding the costs claimed by the applicant is unable to be resolved by the parties, I have ordered there be liberty to apply to the Tribunal.

A. Eastman
Member