Compensation proceedings - advice

This advice provides information regarding the administrative or legal proceedings undertaken on behalf of a child on a family reunification order, care by Secretary order or a long-term care order.

Introduction

Where a child is subject to a family reunification order, care by Secretary order or a long-term care order there may be instances whereby that child is entitled to claim compensation against another person or entity. It may also be the case that the child was entitled to make a claim or a claim had been instigated prior to the child being placed on family reunification order, care by Secretary order or a long-term care order.  In such cases practitioners have a responsibility to act as any good parent would do in considering pursuing a claim for compensation or benefits.

The circumstances in which the Department of Health and Human Services may pursue administrative or legal proceedings on behalf of a child could include:

  • where the child is a victim of a crime (Victims of Crimes Assistance Tribunal)
  • where a child has suffered an injury during the course of employment (Victorian Workcover Authority)
  • where a child has sustained injuries involving a motor vehicle (Transport Accident Commission)
  • common law action to sue for damages.

In considering pursing a claim for compensation or benefits on behalf of a child, any decision made must be consistent with best interests and decision-making principles set out in the CYFA.

State guardianship fund

The state guardianship fund is the account where all money received by the Secretary as guardian of the estate of a child is held (except for compensation awarded though the Victims of Crime Assistance Tribunal (VOCAT), ss. 172 and 177, CYFA. The money is invested on behalf of a child subject to a care by Secretary or long-term care order. Once the child turns 18 years of age or the Secretary ceases to have sole parental responsibility the money deposited, plus interest is given to them. With the approval of the Secretary, applications can be made to withdraw money from the fund in circumstances that can be seen of benefit and service the needs of the child, that is, quality of life cost.

Victims of Crime Assistance Tribunal (VOCAT)

The purpose of VOCAT is to provide compensation and financial assistance to victims of crimes for:

  • expenses or likely expenses incurred as a direct result of the crime
  • significant adverse effects experienced or suffered as a victim of crime
  • recourse to financial assistance where compensation for an injury as a result of a crime cannot be obtained from other sources.

Eligibility relates to an act of violence that occurred in Victoria and has resulted in injury or death to one or more person.

Given the nature of child protection work the most likely instance in which a child may be entitled to claim for damages will relate to physical assault and sexual abuse. It is worth practitioners noting that within the VOCAT categories of eligible victims and awards there is provision for:

  • special financial assistance to primary and secondary victims to cover reasonable counselling expenses incurred or likely to be incurred
  • special financial assistance to primary victims in circumstances of:
    • childhood sexual abuse which occurred on or after 1 July 1997
    • childhood sexual abuse which occurred prior to 1 July 2000 (where no application has been made to the crimes compensation tribunal) provided that:
      1. the alleged offender has been committed or presented for trial after the 1 July 1997 or
      2. where the charge is heard and determined summarily irrespective of the outcome or
      3. the person charged dies without the charge being determined.

In some cases the process to make a claim for damages may be purely administrative as in Workcover or TAC claims. In other instances the commencement of legal proceeding may be required to make a claim against the person or authority responsible for the injury to the child.

There may also be instances where a child has pre-existing injuries and benefits. Upon being placed on a guardianship order, child protection may be required to manage the administration of the claim, compensation paid or benefits. For example:

  • it may be the case that a child's claim has not been finalised upon the making of an order
  • a child may require ongoing medical treatment, specialist care, counselling or support services which may have been provided for by a claim
  • a child may have monies from a claim invested outside of the state guardianship fund that require management.

Knowledge of eligibility

Where child protection has knowledge that a child on a family reunification, care by Secretary or long-term care order may be eligible for an award of damages, compensation or other benefits, the case planner should be consulted and legal advice should be sought. Any decisions made must be consistent with the best interests principles.

Consulting the child

Before commencing any legal action on behalf of a child, the child themselves should be consulted (as appropriate to their age and stage of development) and endorse the decision.

Pursuing legal action

Before considering pursuing legal action on behalf of a client who is subject to a care by Secretary or long-term care order, practitioners must consult with their supervisor. Legal Services or the Child Protection Litigation Office (CPLO) must also be consulted.

Considerations for good practice

Given the types of psychological and emotional trauma experienced by children who have been physically and sexually abused, practitioners need to evaluate the added duress it may cause to the child in considering whether a claim for damages should be pursued. As this type of claim will often involve a statement against a family member or involve a child in a further assessment or hearing, practitioners should in the first instance discuss the matter with their supervisor and the child (as appropriate). Practitioners should also consider, in consultation with their supervisor, the manner in which parents are informed and consulted regarding the decision to pursue a claim for damages. 

It may also be useful to discuss such a course of action with any services or professionals who have been assessing, treating or counselling the child as to their view in pursuing such a claim.

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