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AQ v VN [2013] FJMC 234; DVRO Case 434.2012 (10 June 2013)

IN THE MAGISTRATES COURT AT NASINU


DVRO Case No. 434/2012


A Q.
[Applicant]


v


V N
[Respondent]


Both Parties appeared in person


Ruling on Final Orders


1] The Applicant filed this DVRO application against the respondent. They are married parties. Being satisfied, the court granted following interim orders against the respondent.


  1. The Respondent must not harass the applicant mentally or physically( Standard non molestation order)
  2. The Respondent to stay 100 metres away from the applicant.
  1. The respondent to quit the marital house forthwith
  1. The Respondent must not use any weapon on the applicant.
  2. The Respondent must not remove, sell destroy any household item but he can take his personal belongings.

2] These orders were served and the respondent filed STATEMENT OF DEFENCE (response) against these orders. The Applicant filed reply to that. I am mindful of those facts.


3] The Respondent explained what had happened on 28th October 2012. He admitted that he brought 3 bottles f beer. But he hadn't drunk them on the time . The applicant got angry and shouted annoying and provocative words to him like "Macawa" useless "Tamata Vakasisila" very filthy man go away from my house, you are not paying for this house". This is not your house" these frequently are told to him. He said they normally drink together and to dancing. The respondent said he was unfairly treated in the house of marriage that his wife has to be favored although she was the one who gets angry very easily and over react to things to start all the arguments that ended up on him to be accused of doing violent on her or to abuse her verbally. The respondent says that his wife is a teacher stays away in Natovi and he and his five children, they stay together at home. He cooks for them since his wife does not know how to cook and he looks after their schooling expenses and food and attends to their daily needs. The respondent in his defence said that his little daughter was only 2 months old and his wife left us and stay away and he had to nurse her prepare her food wash her napkins and prepare everything for her to allow to grow healthy up to this stage when she is almost three years old. On that day the respondent says that he did not swear or abuse her. The respondent said that his wife had extra marital affairs with a married man and the affair has caused the separation of the family of the man and 5 children had been orphaned. He further said about his past life as follows;


  1. That this affair started in 2006 and has created a lot of problems. I had no choice but to secure my children with me because she has gone to the other man because I see that my children were abused.
  2. That I came to Fiji for leave my wife says to me that she has left the man when I go back to Iraq they have the affair again.
  3. That I purchased a car and this car was used by my wife in Fiji which seen driven by this man while I'm paying it in Iraq, Sir. This is just one of the many pain full experiences I encounter with this cruel woman.
  4. That she has taken advantage of the law of ownership of property. To give my money to another man and the law to favor her from doing it. This is something very wrong.
  5. That I fee I've been illegally oppressed by the law of the right of woman like it has been used over the limit against me.
  6. That she has frequently crossed the line and gone above my head using the law of violence against women to protect her from having extra marital affair. Sir, I understand all these laws, I'm sorry that I have to be angry in order to release the pain. But that pain is still unbearable.
  7. That there was an incident when I called her at 1 o'clock a Friday night (Fiji Times) the man received the phone I had to turn it off from Iraq. I called again at 2 o'clock and the phone was received and could hear the groaning of my wife having sex with this man in bed. Why do they have to receive the phone while having sex when I asked her in the morning she says that it was devil. I couldn't believe that answer.
  8. That I came to Fiji a few weeks later and went straight to my in laws place the man came at the same time.
  9. That my father in law sent me away with my children and my wife to go with the other man.
  10. That we went away to stay in a rented house.
  11. That I had felt that this must have been the end of the marriage.
  12. That I went back to Iraq after a month leave in Fiji.
  13. That I had no choice but to leave my children back to their mother.
  14. That on the way to the airport at 4.30a in the morning, I received a call. It was my wife's number. The man swear at me "sona levu".
  15. That all was happening to me was very pain full and unbearable that I had to have an alert attach 3 weeks after that.
  16. That I had to return to Fiji because of the Heart Attack to try to recover.
  17. That I went straight to my children at home.
  18. That I found the man in my house with my wife and children.
  19. That I had to go to Valelevu Police Station to report.
  20. That the Police came and saw the man still in my house with my wife and my children.
  21. That I don't know why the Police had to send me away. I believe they have some inside job because the man was connected with the Police quickly.
  22. That my children told me that they don't like the other man but they want to go with me.
  23. That I had to take them and stay in the village.
  24. That this time I was trying to recover from my heart attack and have developed further complications.
  25. That since I had no job and trying to run a losing business from my heart attack, I had no choice but to return to my wife although there is a second man.
  26. That because of my children I had to make the decision to return to my wife although there was another man because I was unemployed.
  27. That heart problem, arguing and trouble family life, and thoughts that there is always a second man in my marriage life, it has made me to newly developed shortness of breath and T.B.
  28. That I have recovered from all these and I am at a stronger position to prove to the Court that I am strong again to be given my children and my wife to go to the other man for good, but to help me financially to support my children.
  29. That my wife comes home on Fridays or Saturdays and goes back on Sundays or Mondays to Natovi.
  30. That every time she comes she has to beat my children up with live electric wire and my chilsren will have to cry with severe pain. Leaving blood marks under their skin.
  31. That she frequently punched my daughter on the head and she usually cried and my wife keep on punching her telling her do this and do that. I saw that it was like slavery to my children.
  32. That I see that my children are being abused by the beating and will follow everything my wife says being frightened of being beaten if they don't follow.
  33. That my children are abused of being deprived of their rights because of the threat they will be beaten. If they say something against their mother and to follow everything their mother say to them.
  34. That we have had arguments concerning the beating of my children and I had to be very very angry many times and it is one of the cause of fighting at home.
  35. That she has been torn up by having 2 men and has made her to be frustrated at home.
  36. That the law was blinded by my wife's accusation against me to see what this cruel woman has been doing.
  37. That after all this happening I have never seen my wife to have any sign or feeling or humbleness to realize the damages that she has caused.
  38. That she has no other way to return to me because she did not know that I would get sick and return home and there is no more money and car for her to boast to the other man.
  39. That it is no other but the gruel attitude, dishonest, unfaithful and obsessive attitude of my wife that has been causing arguments, fighting and disagreement throughout our marriage life.
  40. That I am trusting God that true Justice will rule on my favor because I feel the responsibility I hold in Iraq and how strong I am to keep my children secure during this hard time should be an example to man broken family in Fiji .

Whereas the defendant prays for the following:


  1. For this cruel woman to stay away 100 meters from us and to support me financially to look after my children.
  2. Since we have not been living together for more than three years and I have been looking after my children alone and she comes home only to argue with me and frequently beating my children with live electric wire which leaves blood marks under their skin it is only appropriate for her to stay away from us.
  1. Due to her being having extra marital affairs for many years and the man is just around the neighborhood. I have agreed for her to go to the man but to support us financially by paying maintenance.
  1. I have just found a job and I feel God is helping me and my children an I am hoping there are greater things God is preparing to give us that's why I am writing all this to ask the Court to rule in favor of me.
  2. trust me this is really really a gruel woman and does not have any respect for her husband I am asking the Court to rule in favor of me about this.
  3. Not to be taken away from my children because their help me to recover well from my sickness.
  4. For Court to take particular attention for this case against me because I have history of heart problems. Currently having shortness of breath and T.B.
  5. That I don't know about how she used her money that every time I wanted her to help me financially she always say that she doesn't have any money and I have to cater for everything at home. I am asking the Court to make ruling for my wife to pay maintenance to me.
  1. That I am writing this defence not to punish my wife but to support me secure my children not to be further abused.
  2. That my children are led into a way for them to be deprived the love of their father. My wife is forcing them to another man.
  3. That this will make it difficult for them to freely live a father children relationship. They are abused more when they are treated that way.
  4. That they cannot say anything against their mother because she beats them up.
  5. That they are tight lipped not to tell me any story about their mothers affair frightened of bring beaten, although they are old enough to speak. This is the teaching of a cruel mother.
  6. That they are being treated (beaten) to remain silent.
  7. That they are further abused treated this way.
  8. That she over react and uses wrong approaches when something arises or to deal with an issue she is abrupt and cruel in the way she talk to my children.
  9. That she beats them up almost everyday. My children are already abused and I feel it is very hard for me to bring them back into normal life.
  10. That she doesn't have that wisdom to foresee what would be the need of the children when an issue about our children arises, because she does not want to take the blame that she is the one who is abusing our children.
  11. That if someone is abusive that is a form of cruel act and this abuse has covered a big area of our family life and not been identified.
  12. That the abuses my wife has done to my children to the future wealth of my children and to me as the provider of everything to my children and family is vast that the consequences are difficult to solve.
  13. That on top of that she has also abused the children of the man she was having an affair with making them to run around looking for the love of their parents because they are separated. She was the one who separated them.
  14. That she is the one who starts arguments and quickly run to Police so she defends herself from what kind of person she is (a cruel and an abusive person).
  15. That I must say this that I am very happy that the opportunity for my side of the story to be heard has come and also the abuse of my children to be identified.
  16. That I have seen that it looks like the right of woman being addressed over the limit that has taken this abuse to be unidentified from a very long time.

4] The Applicant in her reply did not refuse extra marital affairs but she said that all incidents have been exaggerated by the respondent. The parties gave evidence on oath on 02/04/2013.


5] The Applicant: A Q: She said she has been tolerating this domestic violence ever since he married her husband. She admitted that she did have an affair, an extra marital affair 2006. But before that her husband has come over with custodies. He's never been supportive. She said "It's not the first conflict". They got married in 1995 and he got a child before marriage and they got 4 kids from this marriage. She said " My son is now studying Electrical Engineering. First year student at USP. Our first child a pair of twins. They both in Form 6. A boy studying at Form 6 in Grammer and the girl is at ATCS. We have another child who is now in Form 4 a son at Assemblies of God and we have a daughter who is turning 3 this June. I have been suffering too much. I was filing for DVRO and he brought up my affair in 2006. Before that Sir he has been having affairs all the time. I did something just to stop this marriage. He embarrasses me in public. He takes me to Court even takes me to Police Station. He physically abuses me, punched. I almost lost my job as a Teacher because he abuses me at home. I just can't see why the Court cannot just dissolve our marriage. He shouts and doesn't want me to be his wife. What word do I value as a woman in my value"


6] In cross examination witness said how would the respondent got STD if he did not have any extra marital affair. She said he is not forgiving because you continue to shout at home.


7] In re examination the applicant said that the respondent has been having extra marital affair evidence is if he loves the family he would be providing with for us.


8] The Respondent, V N, opted to give sworn evidence. In his evidence he said he is Working as a Security Officer for Flour Mills of Fiji. He said "it was of problem at home that has brought the family to this Court which something I don't like. Because I have been thinking about this case for a very long time since it came to Court. And you know because of my children she has done big thing to me when I was in Iraq and it has caused me bad health and lost of finance and the extent I regarded that as it is a curse to my children. When she has divided a family and make the children up in abuse the other man's family. I am a Christian and I believe in Christian values of life about family. And to this stage I do not have anything else to say. To forgive my wife on all what she has done. It was a great loss to us when I was in Iraq. She was abusing, I purchase a car, she was abusing all that. Money all that. I gave her sent almost $600 every fortnight thousands and she has just abusing it drinking and all that. And it has caused me to have an heart attack. I wrote everything in my defence letter. Because to have an heart attack I felt I was irritated by everybody. I felt I was abused. I felt that she was not trustworthy to be given money but because of my children I had to keep on giving money for my children. She was abusing all that and I had a lot of pain from it that she was having an affair while I was giving money, abusing my car, everything that I have provided for the family. This affair has been going on for many years. It started in 2006. And I feel the opportunities not there that's why I stopped and I don't want the Court to I don't want to decide on it. The time I wrote the I want the Court to decide on the time that I wrote my defence letter. But after considering it then my children speaking to me about it and because I love my children. And my children have told me that how much they love their mother. I have to put everything aside and try to live on."


9] In cross examination the applicant he sent only $300 fortnight not $600. He further said "I have nothing else just if I have done something wrong to her I am asking for forgiveness. But to balance everything up I think she has done lot of thing to me than. Because it ended up for me to have an heart attack for hearing things on telephone and the man she was having an affair with, spoke to me and swear to me on the phone. All that and you know to be betrayed. When you love someone to be betrayed that is just something very painful. And it's evidence in me. Many times I saw the man in my house. I went to the Police, explain to the Police and I don't know the Police maybe doing some kind of inside job with her. And the thing I was not advised properly that's why it's so painful to me. When I brought that matter up to the Police. I was given the right advise about her affair she was doing. This is a very painful thing. If you trust someone. I send money, I purchase a car, I gave it to her. I have been paying for that car from Iraq and she disusing that car running around making party going with this man. I am paying for that car. [What is the name of the man]? Apenisa Rawalu"


10] This is dispute between husband and wife. There are 5 children involved and youngest is 3 years old. I now consider law on domestic violence briefly.


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] Parties have filed their response and had given evidence before this court. The applicant was unfaithful to the respondent in 2006, while he was in Iraq and funding the family. This fact did not dispute by the applicant but she said the respondent was in many extra marital affairs. She said the respondent got venereal diseases, but there is no proof for that. However being a school teacher her behaviour in this regard is not commendable. The respondent has not forgiven the incident this is the crux for their dispute. The extra marital affairs are not uncommon in human culture since olden days, but parties have to sacrifice lot to get over it. The respondent's drunkenness aggravated the situation in this case. Therefore there had been verbal and physical abuse by the respondent part. If the respondent does not tolerate the action of the applicant, he should stop the violence and take legal path to end the marriage. But he condoned the applicant for her past actions. Violence is zero tolerance in the modern society. Therefore the respondent cannot make violence in the marital house. The court should look the root causes of violence and make orders to eliminate those.


16] Considering facts before me, I make following final Orders;


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. Parties may live peacefully in the marital house. Parties are advised to go family counseling forthwith.


c) Standard non molestation Order is granted against the Applicant (Counter order) 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. This order will eliminate the root cause of violence.


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 10th June 2013 at Nasinu, Fiji Islands


Sumudu Premachandra [Mr.]
Resident Magistrate-Nasinu

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