SP v SP [2013] FJMC 169; DVRO Case 312.2012 (11 April 2013)

IN THE MAGISTRATES COURT AT NASINU

DVRO Case No. 312/12

S P
[Applicant]

-v-

S P
[Respondent]

The Applicant appeared in person
Ms. Talei Kean for the Respondent as Duty Solicitor of the Legal Aid Commission of Fiji

Ruling on Domestic Violence Interim Orders

1] On 30th July 2012, the applicant filed this application seeking interim orders for non molestation and non contact against the Respondent, his brother under the section 19 of Domestic Violence Decree 2009 (DVD).

2] The application was supported in open court, being satisfied the court issued following interim orders.

1. The Respondent must not harass the applicant mentally or physically, that is standard non molestation order under section 27 of the said DVD.
   
2. The Respondent must stay 100 metres away from the Applicant and her children, under section 29 of the said DVD.
   

100. The Respondent to vacate the house forthwith, under sections 35 and 36 of the said DVD.
     

4. The respondent must not remove, destroy any household items in the property but he can remove his personal belongings, under section 32of the said DVD.
   

3] Interim orders were to be carried out through Nakasi Police Station. The Respondent was duly served and he has been complying the interim orders up to now. He then through Legal Aid Commission filed his response to these interim orders. The Respondent is employed as a taxi driver. He admits that he drinks alcohol but he does not drink excessively and he drinks alcohol when relatives come over to the house and only after they have drank a few bowls of kava. The Respondent said that he actually helps to support the household. He pays for the water bill and assists in buying groceries for his family as well as the household. He said that the Applicant on the other hand is the one that is unemployed and does not do anything to support the family. I have tried to assist the applicant in getting a job at various places like Nivis Motors and Rups Big Bear but this doesn't last long. Whenever the applicant gets employed it only lasts for two weeks and he gets fired. At one instance the employer of Rups Big Bear came to complain about him stealing from the company. Most of his household and personal belongings have already been removed from the house but there are a few items like his beddings which are still at the house. The respondent says that he did not physically or verbally abuse of threaten the Applicant and his mother by swearing at her. His mother and older brother one Soniteshwar Prasad have questioned as to why a DVRO was filed by the Applicant and they both want him to come back home. He said DVRO restricts me from living in his own house with which his father had said to be transferred to me and his two brothers upon his death. The Respondent marked as Exhibit "SPI" is a copy the High Court Probate Order with which states who the property that being Lot 5 with which we all live in should be transferred to. The Respondent said that the applicant has sworn his wife in the itaukei language and used various foul words towards her, namely "Maichod" and "Blackie stink". He said at the moment he is currently living with a cousin namely one Romeo Singh at the squatters in Nakasi. This is a burden to him family and quite unreasonable as he has own home to go and live in but because of the Applicants DVRO against him he is unable to do so. As a result of this DVRO his family has now separated. His wife is staying at her mother's house which is at Lot 2 Nakasi Road with his daughter. He said that According to the High Court Order of 30th March 2007 it clearly states that the property (Lot 5) shall be transferred to all three brothers and not just the Applicant so all brothers should have equal access to the property especially him and this DVRO should not prevent this.

5] The Respondent in his affidavit denies all allegations.

6] He prays that the Court dismiss the Interim Orders to vacate the house and stay away 100 meters from the Applicant and protected persons.

7] The case was heard on 28th February 2012. The Applicant gave evidence on oath. The Applicant said in his evidence when the Respondent gets drunk he starts swearing. He denies that the respondent has supplied few jobs to him. The Applicant said he has breached the interim orders. The Applicant said that their settlement of agreement the Respondent should build his own house, separate electricity and separate water bills and share the town rates. But the Applicant failed to tender this Agreement between them.

8] The Applicant was cross examined at length by the Respondent's counsel. The Applicants in cross examination said the Respondents drinks and creates problem. But the Respondent suggested he did not drink often. But the Applicant denied. The Applicant explained the agreement between them with the trustee. The Respondent tendered Ex-1.

9] The Respondent also gave sworn evidence. He confirmed the affidavit evidence. He said sometimes he drinks grog on weekends. He said he never physically assaulted the applicant or anybody. He said his family has good relationship with his big brother and mother; they missed them, especially little kid.

10] The parties thereafter closed the evidence. It is seen the dispute arose regarding the property. The Applicant demands the Respondent to build house and pay Water, Electricity separately. But in High Court Probate Case No 6 of 2006 the court has already decided "the said lot 5 shall be transferred to his sons. Sanjeshwar Prasad, Sanelwar Prasad (The Applicant) and Soniteshwar Prasad (The Respondent) in equal share as tenants in common." (REX-1).The Applicant said that they have agreed with trustee but no such agreement produced in court. However, parties cannot alter the High Court judgment.

11] The Domestic Violence is a law for protect vulnerable who are in domestic relationship. To get a domestic violence, there should be a violence or imminent violence and domestic relationship. Section 3(1) gives the Definition of Domestic Violence, that is;

"3. (1) "Domestic Violence" in relation to any person means violence against that person ("the victim") committed, directed or undertaken by a person ("The perpetrator") with whom the victim is, or has been, in a family or domestic relationship.

(2) In relation to subsection (1), "violence" means any of the following:

(a) Physically injury or threatening physical injury'

(b) Sexual abuse or threatened sexual abuse;

(c) Damaging or threatening to damage property of a victim;

(d) Threatening or intimidating or harassing;

(e) Persistently behaving in an abusive, cruel, inhumane, degrading, provocative or offensive manner;

(f) Causing the victim apprehension or fear by;

(g) Following the victim; or

(h) Loitering outside a workplace or other place frequented by the victim, or

(i) Entering or interfering with a home or place occupied by the victim, or

(j) Interfering with property of the victim; or

(k) Keeping the victim under surveillance;

(l) Causing or allowing a child to see or hear any of the violence referred to in paragraphs (a) to (f) inclusive;

(m) Causing another person to do any of the acts referred to in paragraphs (a) to (g) inclusive towards the victim."

12] The Decree also gives Grounds for making a domestic violence restraining order in section 23. Those are;

"23. –(1) A Court may make a domestic violence restraining order for the safety and wellbeing of a person if satisfied that the person is, or has been, in a family or domestic relationship with the Respondent, and-

(a) The Respondent has committed, is committing, or is likely to commit domestic violence against that person or against another person relevant to the application, and

(b) The making of the order is necessary for the safety and wellbeing of the person or another person relevant to the application, or both."

13] Unlike Criminal cases, the Standard of Proof is balance of probabilities. Section 46 confirms it. It says;

"46.-(1) Subject to subsection (2), every question of fact arising in any proceedings under this Decree must be decided on the balance of probabilities.

(2) Subsection (1) does not apply to criminal proceedings for the offence under section 77 of breach of a domestic violence restraining order."

14] In Miller v. Minister of Pensions 1947 2 All E.R. 372 Lord Denning said the standard of proof regarding balance of probabilities as;

"That degree is well settled. It must carry a reasonable degree of probability, not so high as is required in a criminal case. If the evidence is such that the tribunal can say: 'we think it more probable than not', the burden is discharged, but if the probabilities are equal it is not."

15] In this case, the High Court order gives right to the Respondent and his family to live within the property. That Right cannot be rescinded by any court. They can have mutual agreement how could property be possessed, but there is no agreement tendered to work out the High Court Probate Order. The Respondent admits he drinks seldom. The Applicant said when he drunk, the Respondent creates problem, sometimes in weekends. This habit makes the problems in the house. To this extent, I am satisfied the safety and well being of the applicant is in peril. I hold the Applicant proved her case in balance of probability to get standard non molestation order. The Respondent has a right to stay in the property. This right cannot be declined by DVRO order. I hold the Respondent and his family is entitled to stay in property. The main object of the Domestic Violence Decree is to stop violence. Peace cannot be preserved by restraining one side. The Applicant and the Respondent are biological brothers and they can sit together and resolve their problem. The cause of the problem is drunkenness of the Respondent. On balance, considering all these factors, I make following Final DVROs.

16] The Orders are;

a) Interim DVR order No 1, standard non molestation order against the Respondent is hereby made permanent.

b) All other interim DVROs are hereby discharged. The Respondent and his family can stay in the property peacefully.

c) Standard non molestation Order is granted against the Applicant to keep the peace and protected persons are the family of the Respondent.

d) The Respondent must not consume alcohol within the premises and stay in the property after consuming alcohol.

e) Breach of Domestic Violence Restraining Order or Interim Order is guilty of a criminal offence and is liable on conviction to a fine of $1,000 and a term of imprisonment of 12 months. (Section 77 of Domestic Violence Decree 2009). There is no statutory right to bail for this offence.

f) No cost in this application.

Orders accordingly,
On this date 11th April 2013 at Nasinu, Fiji Islands

Sumudu Premachandra [Mr.]
Resident Magistrate-Nasinu