Stories/ Case Studies

From the Criminal Justice Support Network (CJSN)

Note- The cases studies are based on actual cases; while the families involved have given consent for their stories to be used, some identifying details have been changed.

• Victims’ Compensation
• You’re suing me?
• Communication Breakdown
• Concerns about the effect of Apprehended Violence Orders (AVO) in Group Homes

Victims’ Compensation

Tanya was recently awarded maximum compensation in a Victim’s Compensation Tribunal application. She has intellectual disability and had been sexually assaulted by a family member who was subsequently found guilty on one count of sexual assault. As well as compensation for the matter where there was a conviction, IDRS also successfully argued for compensation for the effect of ongoing sexual assaults over a significant period of time for which there was no conviction.

It can be difficult to achieve a conviction in sexual assault matters where the victim has intellectual disability. It is important to realise that a conviction is not necessary for an application for Victim’s Compensation for the harm suffered by the victim to be successful.

Tanya’s case is also important because the Victim’s Compensation Tribunal accepted evidence of an increase in challenging behaviour as evidence of psychological harm for the purpose of compensation.

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You’re suing me?

A man injured in a motor vehicle accident while crossing the road spent a significant amount of time in hospital and contacted IDRS when he received a letter of demand from an insurer about damage to the vehicle that collided with him. He didn’t really understand the letter but was very worried because he didn’t have the money to pay. After follow up and letters from IDRS on behalf of the client, the insurer eventually discontinued the claim.

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Communication Breakdown

Branco has significant physical and intellectual disabilities. His brother contacted IDRS after receiving notification of a Guardianship Tribunal hearing about an application for the NSW Trustee to be appointed as financial manager for Branco. A service provider had made the application due to concerns that the family were misusing Branco’s pension and savings. Having spoken with the family members and examined the financial records, the IDRS solicitor formed the view that there were clear explanations for the way Branco’s money was being managed and that there was no basis to believe that the arrangements were not in his interest. There was no reason to believe that he would benefit from the appointment of the NSW Trustee.

It is important to note that the IDRS client in this matter was Branco and not his brother or any other family member. The solicitor had to assess the matter and be satisfied that she could be involved in promoting Branco’s best interest as Branco himself was unable to provide instructions. It seemed that there had been a breakdown in communication between the service and the family and a misunderstanding had developed. The family were of a non-English speaking background and were concerned that they would be unable to present their information effectively at the Guardianship Tribunal Hearing.

The IDRS solicitor made submissions to the Guardianship Tribunal and attended the hearing where the concerns were examined with everyone present. Ultimately, an agreement was reached and the service withdrew their application.

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Concerns about the effect of Apprehended Violence Orders (AVO) in Group Homes

Two women with intellectual disability were placed together in a group home some years ago despite known incompatibility. They did not choose to live together. The accommodation provider was aware of the problems at the time but they were accommodated together anyway.Inevitably problems arose and culminated in one person assaulting the other. The police were called but no charges were laid. A staff member then assisted one of the women to take out an interim AVO against the other who was by then in hospital. The AVO prevented her returning to the home.

IDRS assisted the solicitor acting for the woman against whom the AVO was made. Should she just agree to the AVO? A major issue in this matter was the question of whether the client had capacity even to understand and participate in court proceedings. A subsequent report by a treating psychiatrist indicated that she did not. If a final order were made did the client have any capacity to understand and adhere to the conditions of the order? This seemed unlikely.

In the experience of IDRS, AVO’s are regularly sought and made against people with intellectual disability living in group home situations. While safety and protection from harm are of utmost importance for residents, we are concerned at the potential effects of these orders where the defendant lacks capacity. We are also concerned that situations of known incompatibility can result in legal orders against a person with intellectual disability without other avenues being pursued to resolve the problem.

The purpose of an AVO is to deter behaviour that causes fear or harm to another person. The likelihood of compliance with these orders by people who have diminished capacity is poor, due to their disability. The purpose of the order in deterring behaviour is not likely to be achieved. Breaches of the obligations imposed by an AVO result in potential criminal sanctions and may have serious consequences for the person.

In this case, the Local Court decided to make an Apprehended Domestic Violence Order. The people concerned no longer live together. IDRS would like to further explore and test the law on this issue. We would also like to raise discussion with service providers about why so many AVOs are sought in group home situations. The law is a blunt tool to solve such problems. We would like to pursue other solutions.

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