Re An Application Under the Criminal Injuries Compensation Act 1983 and Ptm [1993] ACTSC 86 (23 September 1993)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT
1983 AND PTM
No. CIC56 of 1992
Number of page - 2

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A. HOGAN

HEARING

CANBERRA, 8 July 1993
23:9:1993

Counsel for the Plaintiff: H. Hayunga

Instructing Solicitors: Legal Aid Office

Counsel for Defendant: K. J. Holmes

Instructing Solicitors: Australian Government Solicitor

ORDER

The Court orders that:
Compensation be awarded to the applicant in the sum of $35,700.

DECISION

MASTER A. HOGAN This is an application for compensation under the Criminal Injuries Compensation Act 1983.

2. On 8 December 1993 the applicant's husband pleaded guilty in this Court to five acts of sexual intercourse with and one act of indecency upon the applicant's daughter, his stepdaughter.

3. The stepdaughter made an application for compensation, and in that matter and this I made an order prohibiting publication of such particulars as might lead to the identification of the applicant or the offender.

4. The applicant was born in 1952. Her elder daughter was born in 1978, and the younger in 1983.

5. She met the offender at an Alcoholics Anonymous meeting in 1986. She moved into his house with her daughter in February 1987, and married him on 25 March 1987. They had both stopped drinking, but she kept up her association with AA.

6. About half way through her elder daughter's Year 7 at school she began to notice a change in her behaviour. She attributed it to puberty and peer pressure, but was quite concerned about it.

7. In June 1991 during an overseas trip she noticed that her daughter was very antagonistic towards the stepfather. She objected to being alone with him, and began to urge her mother to leave him. The applicant became so concerned that she consulted a friend, who told her that her daughter's behaviour was typical of a sexually abused child.

8. That evening she asked her daughter whether her husband had been doing anything to her. Her daughter sobbed out the truth and her shame.

9. The applicant was shocked. She confronted her husband by telephone. He admitted the truth of her daughter's allegations. She told him to come to collect his clothes and leave the home. When he came he tried to persuade her not to make him leave, but still admitted the allegations. She insisted that he leave, which he did.

10. For two months the applicant was preoccupied with practical matters resulting from the disclosure and separation. Thereafter she became preoccupied with it. She felt guilty for not having realised that her daughter was being abused. She lost her confidence in study, and in the welfare work that she had been doing for alcoholics.

11. Her husband worked at a detoxification unit at the hospital, and staff there re-acted against her when the news spread. She felt unable to continue her association with the work. Her sense of her own worth diminished. Although the marriage had been at risk because of other aspects of his behaviour she was very hurt by his betrayal and the end of whatever security it had afforded her. She was very distressed by the processes of persuading her daughter to reveal everything to the authorities, and by the subsequent criminal proceedings.

12. Dr Saboisky, consultant psychiatrist, examined her at the request of her solicitors for a medico legal assessment in April 1992. He was convinced that she had developed an adjustment disorder with mixed emotional features. She was not clinically depressed, however, and her great courage showed through in that she had not returned to the use of alcohol. Dr Saboisky thought then that there was a risk that she might do so, and that she should have psychotherapy treatment.

13. She made a very detailed affidavit setting out the aspects in which her life has been affected. It is not necessary to set it all out again. Suffice it to say that there is no reason to doubt in the slightest the truth of what she set out. She did not seek psychotherapy, but neither did she return to the use of alcohol.

14. Dr Saboisky re-examined her on 22 March 1993. He concluded that she was not yet well enough to return to welfare work and that it would take some considerable time before she would be able to do so.

15. There is no evidence that the applicant incurred any expense as a consequence of the injury that she suffered.

16. By s.6(1)(b) she should be compensated for the pecuniary loss suffered by her as a consequence of incapacity for work due to the injury.

17. She was not in employment at the time of the revelations. She had worked previously as a welfare officer, and had her own business, of which there is no detailed evidence.

18. She had intended to return to work in the welfare field after returning from the overseas trip in August 1991. She still feels incapable of doing so. Her inability to complete her post graduate studies at the University tends to bear that out.

19. Her financial position has worsened radically, but a large part of the reason for that is that she and the children no longer have the defendant's income to rely on, which is not compensable under the Act. She receives a Social Security pension.

20. In the circumstances, an award under s.6(1)(b) becomes a matter of discretionary judgment rather than calculation. I would award $20,000 for that pecuniary loss.

21. I would award $15,000 for her pain and suffering.

22. The consultations and reports by Dr Saboisky cost $700.00.

23. I award compensation therefore in the sum of $35,700.