Sheridan (a pseudonym) v Thompson (a pseudonym)

[2022] VCC 261

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

APPEALS AND POST SENTENCE APPLICATIONS LIST

BOB SHERIDAN (A PSEUDONYM)	Appellant
v
STEPHANIE THOMPSON (A PSEUDONYM)	Respondent

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2022
DATE OF JUDGMENT:	15 March 2022
CASE MAY BE CITED AS:	Sheridan (a pseudonym) v Thompson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 261

REASONS FOR JUDGMENT
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Subject:Appeal against extension of Family Violence Invention Order

Catchwords:              History of family violence – Since at least 2019 all communication between parties is via the MyMob application – Alleged threatening and harassing conduct – Insufficient evidence to establish constant harassing messages – Insufficient evidence to find behaviour likely to be committed – Family law orders in place

Legislation Cited:      Family Violence Protection Act 2008 (Vic); Sentencing Act 1991 (Vic)

Judgment:                  Appeal granted

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms B Franjic	Gallant Law
For the Respondent	Mr J Karitzis	Coulter Legal

HIS HONOUR:

1This is an appeal by Mr Sheridan[1] against orders made in the Magistrates’ Court granting an extension of a Family Violence Intervention Order (“FVIO”). The order was made on 23 August 2021 in favour of Ms Thompson[2] against Mr Sheridan and is for a period of 3 years.

[1]        A pseudonym

[2]        A pseudonym

2Mr Sheridan has appealed from the making of that order pursuant to s 116 of the Family Violence Protection Act 2008 (Vic) (“the Act”).

3The appeal in this Court is by way of a hearing de novo. To extend a final FVIO, I must be satisfied that Mr Sheridan is likely to commit family violence against Ms Thompson.

4Mr Sheridan submits that even if the Court finds that there has been family violence, the Court cannot be satisfied that he is likely to commit family violence against Ms Thompson or their two children. For the reasons that follow, I do not find that Mr Sheridan is likely to commit family violence, as such I will set aside the orders made on 23 August 2021.

Relevant background

5Mr Sheridan and Ms Thompson met in approximately 2010. Their first daughter Chloe[3] was born in January 2013. Rachel,[4] their second daughter was born in August 2014. Chloe and Rachel are listed as affected family members on the FVIO. Mr Sheridan and Ms Thompson married in 2016 for two years before separating on 18 February 2018.

[3]        A pseudonym

[4]        A pseudonym

6Ms Thompson first sought a FVIO in 2018. The FVIO was sought on the basis of verbal abuse, threats and Mr Sheridan’s anger issues. The FVIO was granted.

7It is not clear from the materials before the Court exactly when the original FVIO was granted or its duration. Before the expiry of the original FVIO Ms Thompson sought an extension of 12 months.

8On 24 September 2019, family law orders were made in the Federal Circuit Court which ordered, inter alia, equal shared parental responsibility and a shared custody arrangement. Under this arrangement the children spend 9 days with Ms Thompson and 5 days with Mr Sheridan over a fortnightly period. Importantly, the orders restricted communication between the parties to the MyMob application. Since at least 24 September 2019 Mr Sheridan and Ms Thompson have been exclusively communicating via the MyMob application. There has not been any face-to-face contact between Mr Sheridan and Ms Thompson with the exception of handovers since this time.

9On 11 December 2019, Mr Sheridan committed a breach of the FVIO when he attended Chloe’s school for an art exhibition. Mr Sheridan was charged and the charge was unconditionally dismissed with no recording of a conviction.[5]

[5]        Sentencing Act 1991 (Vic), s 76

10On 23 August 2021, Ms Thompson was granted a 3 year FVIO extension. That extension is the subject of this appeal.

Legal principles

11Section 106 of the Act[6] gives the Court the power to extend a final FVIO if the Court is satisfied on the balance of probabilities “that if the order is not extended the [Appellant] is likely to commit family violence against the protected person”.[7]

[6]        Family Violence Protection Act 2008 (Vic), s 106

[7] Ibid

12Family violence is defined in section 5 of the Act.[8] Ms Thompson submits that Mr Sheridan’s conduct amounts to family violence as his conduct is threatening or coercive. In this way she argues, sections 5(1)(a)(iv)[9] and (v)[10] of the definition are met.

[8] Ibid, s 5

[9] Ibid, s 5(1)(a)(iv)

[10] Ibid, s 5(1)(a)(v)

Incidents of family violence relied on by Ms Thompson

13Ms Thompson alleges that Mr Sheridan’s conduct is harassing, threatening or coercive. Ms Thompson supports her argument of harassing behaviour on 3 bases. The first is in relation to threatening or coercive MyMob messages. Next is the breach of the FVIO on 11 December 2019 and finally objections made by Mr Sheridan to the Child Support Agency.

14Ms Thompson relied on a summary of recent family violence incidents and a summary of historical family violence incidents.[11] In cross examination Ms Thompson conceded that the summaries do not contain every incident of family violence but believes it contains the most important ones. A similar document was prepared for the Magistrates’ Court proceeding where the most important instances were included.

[11]        The summaries were tendered as Exhibit R1

15Turning first to the historical family violence incidents. Ms Thompson relied upon 19 incidents of historical family violence from 12 April 2017 to 31 July 2018. The incidents allegedly demonstrate a history and pattern of Mr Sheridan being controlling and abusive towards Ms Thompson both verbally and via text messages. Next she alleges a series of events said to demonstrate such behaviour. First on 3 March 2018, Ms Thompson alleges that Mr Sheridan committed family violence when he closed their joint credit card. Second on 16 March 2018, Mr Sheridan withdrew approximately $5,000 from their joint savings account before closing the account. Third on 18 May 2018, Mr Sheridan disconnected the utilities at the home where Ms Thompson was living with their two daughters.

16Then as to the recent family violence incidents, Ms Thompson relied upon 23 recent examples of family violence from 17 July 2019 to October 2021. In order these were first on 21 September 2019, Mr Sheridan made a Facebook post on his own page about child abuse that did not name Ms Thompson. It only came to Ms Thompson’s attention after a friend of hers brought it to her attention.

17Second on 19 November 2019, Mr Sheridan made an objection to the Child Support Agency alleging that Ms Thompson had not accurately disclosed her income. The objection was upheld and the objection was decided in Mr Sheridan’s favour. A further objection was made on 8 February 2022 and upheld. Third on 11 December 2019, Mr Sheridan breached the FVIO when he attended Chloe’s school for an art exhibition. Other incidents involved Mr Sheridan taking their daughters to New South Wales without providing Ms Thompson prior written notice as required by the family law orders, Mr Sheridan not agreeing to swap custody days to allow the children to go to a wedding unless Ms Thompson agreed to 50/50 custody and Mr Sheridan removing Ms Thompson’s new partner from the children’s emergency contact details at school.

18Ms Thompson alleges that these incidents demonstrate a history and pattern of controlling behaviour sufficient to satisfy the definition of family violence.

Allegation of financial/economic abuse

19In this appeal, Ms Thompson relied on historical allegations of financial/economic abuse. There is insufficient evidence before the Court to support this submission.

20Dealing with each allegation in turn. First Ms Thompson alleges that Mr Sheridan committed family violence when he closed their joint credit card and secondly, when he withdrew approximately $5,000 from their joint savings account before closing the account. Mr Sheridan was the primary account holder of both. Ms Thompson did not contribute financially to either. Mr Sheridan gave evidence that as he was the only one contributing to the credit card he was not able to afford it as well as paying both shares of the mortgage. It is important to note these events took place approximately one month after Mr Sheridan and Ms Thompson separated.

21I find that Mr Sheridan’s conduct does not amount to being economically abusive. This is so given Mr Sheridan was the primary holder for both accounts and was the only one contributing to each account. He gave evidence that he closed both accounts to protect himself against financial ruin.

22Ms Thompson thirdly relies on the incident when Mr Sheridan disconnected the utilities at the home where she was living with their two daughters. Ms Thompson gave evidence that there was only one message between herself and Mr Sheridan before the utilities were disconnected. In comparison, Mr Sheridan gave evidence that he had sent messages over a six month period asking Ms Thompson to make arrangements to change the account into her name as he was no longer living at that address. When Ms Thompson told Mr Sheridan that she would be transferring the account, Mr Sheridan said that it was not possible to transfer the account into her name and that he needed to cancel the account first.

23I find Mr Sheridan’s account is more probable than Ms Thompson’s especially when regard is had to the other allegations of economic/financial abuse outlined above. Mr Sheridan cancelled their joint credit card and closed their joint savings account to protect his financial status. Therefore, I find there was unlikely to have been intention to commit family violence when the utilities were cancelled but rather to protect his own financial status and that Ms Thompson was given time to make arrangements to transfer the account to her name.

Historical text messages prior to MyMob application being used

24Prior to family law orders being made Mr Sheridan and Ms Thompson used text messages to communicate. Text messages sent by Mr Sheridan were extracted in Ms Thompson’s summary of historical family violence incidents.[12] The tone of the messages are aggressive and often contain swearing. Mr Sheridan refers to Ms Thompson as a “bitch” in several text messages.[13]

[12]        Exhibit R1, pages 5-11

[13]        Exhibit R1, page 6

25Mr Sheridan did not tender any text messages as he is not able to access them from his old phone. Mr Sheridan’s counsel in cross examination put to Ms Thompson that a full appreciation of the text messages cannot be had as the text messages tendered by Ms Thompson do not include her messages or responses. And that Ms Thompson’s messages were not included as they reflected poorly on her. Mr Thompson said she did not think that was the case.

26Mr Sheridan gave evidence the messages have been taken out of context. He described the messages as being a “verbal slinging match” and that Ms Thompson has called him a “cunt”, a “fucking arsehole” and a “fucking fat cunt”. In cross examination Ms Thompson conceded that she had called Mr Sheridan names during the course of their relationship including a “bad parent”, a “terrible person”, “arsehole” and “fat”. It is undoubted and I find that Mr Sheridan’s behaviour constituted family violence via text message.

Recent threatening/harassing messages allegedly sent by Mr Sheridan

27Ms Sheridan and Ms Thompson since 24 September 2019 have exclusively used the MyMob application to communicate. The MyMob application allows users to message each other and a record of the messages is kept on the application. Messages between the parties were tendered as evidence, however the majority of the messages tendered were sent by Mr Sheridan.[14] The MyMob application restricts the type of language that can be used on the application. The application prevents users from sending messages that include swearing and other inappropriate language.

[14]        Exhibits R1 and A1

28Ms Thompson alleges that Mr Sheridan has been using the MyMob application to constantly send her threatening and harassing messages in recent years. Ms Thompson reported this behaviour to the police who did not investigate the matter further. Ms Thompson gave evidence that the police were not able to take her complaint further as the messages included references to their children and the family law orders. As per the family law orders, Mr Sheridan is allowed to contact Ms Thompson about their children.

29Ms Thompson further alleges Mr Sheridan consistently asks her to change the family law orders in the MyMob application. Ms Thompson gave evidence that the “surrounding flavour” of the messages has changed as a result of the FVIO and that things would be “a lot worse” for her and the children without the FVIO.

30Ms Thompson exhibited five screenshots of messages from Mr Sheridan sent from the MyMob application from 8 May 2021 to October 2021. There is no evidence before the Court as to the total number of messages sent by Mr Sheridan in that period of time or the total number of messages that are alleged amount to family violence. It is therefore difficult for the Court to find that the messages are constant or harassing by reason of their volume or timing. The evidence before the Court is five messages alleged to be family violence that were sent over a six month period. No further evidence was adduced to quantify the total amount of messages other than to say is that the messages are “constant”.

31Four of the five screenshots that Ms Thompson tendered are messages from Mr Sheridan to Ms Thompson about his phone number being provided to Ms Thompson’s partner without his consent and wanting video calls with their daughters. Mr Sheridan in one message says he “will be seeking further litigation”[15] and twice about raising the issue of phone calls and video calls with the Courts.[16] I do not find this amounts to threatening behaviour when regard is had to the full message. Mr Sheridan is evidently unhappy with his phone number being provided without his consent. The family law orders permit telephone, Skype or equivalent calls with their children. Consequently, Mr Sheridan is completely within his rights to request video calls and is entitled to raise this in Court if he believes Ms Thompson is not complying with the family law orders or facilitating the calls in a suitable manner.

[15]        Exhibit R1, page 13

[16]        Exhibit R1, page 14 and 15

32Given the lack of evidence before the Court I am not satisfied that Mr Sheridan’s conduct in this respect amounts to constant harassing or threatening behaviour.

33A finding of family violence also includes a subjective analysis that the conduct “causes that family member to feel fear for the safety or wellbeing of that family member or another person”.[17] Ms Thompson submits that Mr Sheridan’s behaviour amounts to family violence because his messages are harassing, aggressive and threatening. Ms Thompson described Mr Sheridan as “terrifying” before the FVIO and “terrifying” now. This is because he allegedly commits family violence in a “smarter way” by “toe[ing] the line” through sending messages that include references to the children which is permitted by the family law orders. Ms Thompson gave evidence that these messages are still aggressive and of a threatening nature and that she has concerns even now with an order in place as she does not know what Mr Sheridan is capable of. Ms Thompson described Mr Sheridan as being “relentless” in perpetrating family violence.[18] An analysis of the recent family violence incidents relied upon by Ms Thompson demonstrates this is not the case.

[17]        Family Violence Protection Act 2008 (Vic), s 5(1)(vi)

[18]        Exhibit R1, page 1 at paragraph [4]

34I accept that Ms Thompson feels threatened and harassed by Mr Sheridan’s messages. However, I do not find Mr Sheridan is likely to commit family violence by sending threatening or harassing messages. Mr Sheridan’s recent conduct does not amount to threatening or harassing conduct as discussed above. The use of the MyMob application is an important factor given it restricts the type of language that the parties can send to each other.

Breach of the FVIO on 11 December 2019

35Turning now to the second basis on which Ms Thompson relies. On 11 December 2019, Mr Sheridan committed a breach of the FVIO when he attended Chloe’s school for an art exhibition. Ms Thompson was also present at the exhibition. It is accepted there was no malice from Mr Sheridan in this breach. He did not approach, talk to or harass Ms Thompson. He did not know he was breaching the FVIO as the order allows him to do anything permitted by the family law orders and attending the school was permitted.

36Mr Sheridan was charged with breaching the FVIO and the charge was unconditionally dismissed with no recording of a conviction pursuant to section 76.[19]

[19]        Sentencing Act 1991 (Vic), s 76

37I therefore give little weight to this breach when assessing Mr Sheridan’s likelihood of committing family violence. The breach was a technical breach. It occurred two years ago and it was not a wilful breach.

Objections to the child support agency

38The final ground that Ms Thompson relies on are the objections made by Mr Sheridan to the child support agency. Mr Sheridan has made approximately four objections. In particular, Ms Thompson relied on objections made in 19 November 2019 and 8 February 2021. The objections were made because Mr Sheridan had concerns about the income Ms Thompson was declaring to the child support agency. Both objections were upheld by the child support agency which resulted in Mr Sheridan’s child support obligations reducing. Ms Thompson gave evidence that she considered the objections harassment.

39I do not find that Mr Sheridan’s conduct amounts to family violence. The child support agency is an independent organisation and investigated his objections. They would not have upheld both of his objections if there was not a sufficient basis. I therefore also reject this ground.

Conclusion

40In summary, I find that after Mr Sheridan and Ms Thompson separated both parties engaged in inappropriate language which stopped once the parties communicated exclusively via the MyMob application. I find that Mr Sheridan did not commit financial/economic abuse or engage in threatening, coercive or abusive conduct. I find that there have not been any recent incidents of family violence amounting to threats or harassment when regard is had to all the surrounding circumstances. I find there is no pattern of behaviour to demonstrate that the historical family violence behaviour is likely to continue.

41Therefore, in all the circumstances I will allow Mr Sheridan’s appeal.

42I therefore will set aside the orders made in the Magistrates’ Court on 23 August 2021.