Stephenson (a pseudonym) v Hudson (a pseudonym)
[2020] VCC 198
•27 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-19-2214
| CAMERON STEPHENSON (A PSEUDONYM) | Appellant |
| V | |
| ELLE HUDSON (A PSEUDONYM) | Respondent |
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JUDGE: | Judge Pillay | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 February 2020 | |
DATE OF JUDGMENT: | 27 February 2020 | |
CASE MAY BE CITED AS: | Stephenson (a pseudonym) v Hudson (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 198 | |
REASONS FOR JUDGMENT
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Subject: Intervention Order Appeal
Catchwords: Appeal - Family Violence Intervention Order – whether family violence committed – whether family violence likely to continue
Legislation Cited: Family Violence Protection Act 2008
Judgment: Appeal dismissed.
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APPEARANCES: | Counsel |
| For the Appellant | Mr G Thexton |
| For the Respondent | Mr N Hanos |
HIS HONOUR:
1 This is an appeal from orders made in the Magistrates Court imposing a final Family Violence Intervention Order. That order was made in favour of Ms Elle Hudson[1] against Mr Cameron Stephenson[2] and is to last 2 years.
[1]A pseudonym
[2]A pseudonym
2 Mr Stephenson has appealed from the making of that order pursuant to s 116 of the Family Violence Protection Act 2008 (Vic) (“the Act”).
3 The appeal in this Court is by way of hearing de novo.
4 At the outset of the appeal, Counsel for the parties agreed that the transcript of the hearing below – that is the evidence of their respective clients - be tendered as evidence in this hearing. This obviated the need for the parties to give evidence again. It was a sensible and pragmatic approach.
5 I have read the transcript of the evidence and considered the exhibits which were tendered in this proceeding. In considering this matter primary regard must be had to s 74 of the Act. That states:
The court may make a final order if the court is satisfied, on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to continue to do so or do so again.
6 It can be seen that the section imposes a two-stage test. First the establishment of family violence committed against the affected family member and secondly that the family violence is likely to continue.
7 There was not much debate as to the first limb. This was because Ms Hudson gave evidence that she had been subject to “verbal abuse”, controlling behaviour as to who she could see and being belittled.[3] She said this occurred throughout the course of their relationship which spanned 8-9 months from late 2017 until mid-2018.
[3]Transcript of the Magistrate’s Court (“T”) 5.
8 She then gave evidence that such behaviour escalated in the course of an overseas trip Ms Hudson and Mr Stephenson took in July 2018. She gave evidence that Mr Stephenson’s behaviour escalated into “daily verbal abuse and controlling behaviour and to the point that I was concerned for my safety.”[4]
[4]T 6
9 She gave evidence she was so concerned she called her mother as to what to do and was told that she should wait to return home to Australia before terminating the relationship.[5]
[5]T 6
10 None of this evidence was challenged. Counsel to Mr Stephenson conceded “I mean to her credit she’s been quite honest and forthcoming and she hasn’t given a skewed view of the events.”[6] He adopted the same view in this court.
[6]T 18
11 I adopt the same position as to the evidence of Ms Hudson. I consider her evidence credible and truthful and I accept it. In these circumstances I do not form a view as to whether the test of family violence is on a subjective or objective basis of the history. Importantly to this point her evidence squarely satisfies s 7 of the Act which qualifies it as emotional and psychological abuse suffered by Ms Hudson at the hands of Mr Stephenson.
12 The main focus of the appeal and the point made strongly by Mr Thexton was that Ms Hudson could not satisfy the second limb of s 74 – i.e. that the family violence was likely to continue to do so or do so again.
13 Mr Thexton made this argument on a number of bases. For the reasons which follow I would not accede to these arguments.
14 First, it was argued that the contact between the parties from the return to Australia on 2 August 2018 to 4 November 2018 was to do with couples counselling or in an attempt to communicate that Mr Stephenson had contracted an STD.
15 The first of those reasons does not match the evidence I have accepted from Ms Hudson or the contemporaneous emails.[7] Ms Hudson gave evidence she terminated the relationship on or about 2 August 2018.[8] She then said Mr Stephenson had sought psychological counselling for his own psychological issues. As part of this he asked if she would assist him by coming as a friend to some sessions. She did.[9] This is amply borne out by the emails.[10] This was quite clearly not couples counselling. When I have regard to the tone, timing and context of those emails at Exhibit R3 they support Ms Hudson’s evidence and give credence to her allegation that Mr Stephenson was utilising his therapy to manipulate her.
[7]Exhibit R2
[8]T 6
[9]T 6
[10]Exhibit R2
16 This can be seen starkly in the way he emails her requesting a night time meeting to discuss a personal matter which his psychiatrist insisted be discussed one on one.[11] Ms Hudson pointed out she viewed such a meeting to be a manipulation of her. I agree.
[11]Exhibit R3, Email dated 29 October 2018 at 1:24pm
17 In evidence for the first time while being cross-examined Mr Stephenson volunteered he was trying to tell Ms Hudson she may be infected with an STD.[12] The timing of when this allegation arose, the fact that no contemporaneous email mentioned it and the fact that even on a 3 hour telephone call on 3 November 2018 it was not discussed lead one to doubt seriously that this was the reason for the contact between 3 August 2018 and 4 November 2018. I do not then accept Mr Stephenson’s argument as to the reasons for contact after early August 2018.
[12]T 24
18 Secondly, Mr Thexton put that in the period 4 November 2018 until 20 February 2019 there was virtually no contact and this was good evidence that there would be no basis to find that family violence was likely to continue. There are several reasons for not accepting this argument. First, the behaviour from August to November was manipulative, as I have found and more importantly not respectful of the boundary that Ms Hudson had sought to impose by terminating the relationship.
19 Secondly, she definitively stated again in the 3 hour call on 4 November 2018 that she wanted no further contact with Mr Stephenson yet he wrote to her on 6 November 2018, 13 November 2018 and 18 November 2018 in direct violation of her wishes. It might be though incongruous that Ms Hudson entertained the phone call on 4 November 2018 given her email at 2:30pm that day.[13] However this simply reinforces my view that Mr Stephenson had little respect for her boundaries.
[13]Exhibit R2
20 I do not need to decide if any letters were hand delivered given my finding that the sending of these letters was in breach of clearly expressed wishes of Ms Hudson, a point she had been making since early August 2018. The tone of the letters might on one view be thought to be innocent but in context were in my opinion pointedly manipulative with scenes of their past romantic life and Mr Stephenson’s dog. No doubt an attempt to convince Ms Hudson to engage in contact with him. Thirdly, Mr Stephenson attended at Ms Hudson’s work with flowers after 4 November 2018 despite her clearly stated desire to not have any further contact with Mr Stephenson.
21 Further, despite no response to these messages, two voicemail messages were left on Ms Hudson’s answering service in February 2019.
22 A week later she took out an application for the Intervention Order. It might be said that after the Intervention Order application there was no contact. I think this simply reflects that Mr Stephenson began to take matters more seriously. It is not comprehensive evidence that such abusive behaviour is not likely to continue.
23 When set out in this way I find the behaviour of Mr Stephenson after 4 November 2018 to be indicative of someone unwilling to accept the boundaries and expressed wishes of the affected family member. I am fortified in this view by the assertion of Mr Stephenson in cross-examination in the Magistrates Court that the contact in October to November 2018 was in part to discuss a potential STD. As I have set out above I consider this unlikely. It once again suggests a willingness to manipulate Ms Hudson that is ongoing.
24 Though it was pressed that the inability of Ms Hudson to obtain an interim Intervention Order should be held against her, as I am hearing this matter de novo I do not find much weight to this point.
25 In the circumstances I will dismiss the appeal.
26 I therefore confirm the orders below of 7 October 2019. I impose a Family Violence Intervention Order of 2 years from 7 October 2019 to 7 October 2021 on the previous terms.
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