Devi v Hoyt [2013] FJMC 77; Domestic Violence 05.2013 (13 February 2013)

IN THE RESIDENT MAGISTRATE'S COURT AT NAVUA

Domestic Violence Case : 05/2013

BETWEEN:

SUNITHA DEVI
APPLICANT

AND:

FRANK HOYT
RESPONDENT

APPLICANT : Present, appeared in person
RESPONDENT : Absent

Date Of Hearing : 08 Feb 2013
Date of Order : 13 Feb 2013

ORDER

[1] The applicant filled this DVRO application on 17/01/2013 under the Domestic Violence Decree of 2009 (hereinafter will be referred as Decree). In her application she asked for the following orders from this Court against the Respondent

1. Non molestation order under section 27 of the Decree
   
2. Urgent monetary relief under section 34 of the Decree
   

100. Occupation order under section 35 and 36 of the Decree.
     

[2] This court being satisfied with the application initially granted an interim non molestation order in favor of the applicant and issued notice to the respondent to appear in the court.

[3] The respondent appeared in this court on 23/01/13 and objected to the allegations leveled against him. He also objected to this application as well as to the interim order.

[4] Therefore with consent of both parties this matter was set down for hearing on 08/02/2013 and both parties where directed to appear on that day with the witnesses and relevant documents.

[5] When this was called on 08/02/2013 for hearing only the applicant was present. The respondent was not present and no valid explanation was given for his absence. Also the applicant informed that she tried to contact him through his mobile but it was not working. Therefore this was taken for hearing without the respondent.

FACTS IN THIS CASE

[6] The basis for this application is that the respondent being the husband of the applicant used to abuse and swore at her. The applicant also stated in her application that the respondent is not treating her properly and she does not even have money to buy foods.

SUMMARY OF EVIDENCE

[7] SUNITA DEVI (applicant) – She gave sworn evidence in this Court. In her evidence she said the respondent is her husband and he is having an affair with another lady. He was calling her and threatening her and asking her leave the house.

The applicant fears that if she does not go out from the house the respondent would do something to her. She also said presently she cannot support herself and asked for monetary relief of $75 per week. The applicant submitted that the respondent was earning $200 weekly from his job. (The applicant tendered the respondent's pay slip as exhibit 1)

The Law

[8] The relevant law provisions for this application are in Domestic Violence Decree of 2009.

[9] Section 03 has defined the Domestic Violence under this Decree as follows,

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) physical injury or threatening physical injury;

(b) sexual abuse or threatening sexual abuse;

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

(d) threatening, intimidating or harassing;

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

(f) causing the victim apprehension or fear by –

(i) following the victim; or

(ii) loitering outside a workplace or other place frequented by the victim, or

(iii) entering or interfering with a home or place occupied by the victim, or

(iv) interfering with property of the victim, or

(v) keeping the victim under surveillance;

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

(h) causing another person to do any of the acts referred to in paragraphs (a) to (g) inclusive towards the victim.

[10] Section 46(1) mentioned that subject to subsection 2 (criminal proceedings with regard to breach of domestic violence restraining orders) every issue must be decided on balance of probabilities.

ANALYSIS OF EVIDENCE

[11] The applicant stated in her application that the respondent is her husband. Therefore this comes under the domestic relationship under this decree.

[12] In her sworn evidence in this Court she said the respondent calls her and threatens her. This court is satisfied with her evidence and decides that the respondent has committed domestic violence under this Decree.

[13] She also stated she fears for her safety because of that. Section 23(1) of the Decree sets down the grounds for making a restraining order under this Decree.

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.

[14] I am satisfied about the both grounds as mentioned in the above sections. The applicant has proved on balance of probabilities that the respondent has committed domestic violence against her. I also note that the respondent was aware about the hearing but did not turn up and no valid explanation was given regarding that.

[15] This Court has already granted an interim non molestation order in favor of the applicant. Therefore for the safety of the applicant I made that order permanent.

[16] Now I will consider the other reliefs asked by the applicant. The applicant also asked for an occupation order and urgent monetary relief in her application.

[17] In her evidence she did not pursue the occupation order. Therefore this Court will not deal with that issue.

[18] The applicant also applied for urgent monetary relief from this Court under section 34 of the Decree. The relevant section is as follows,

34.-(1) Where the Court makes or is intending to make a domestic violence restraining order under this Decree for the safety and wellbeing of a person, the Court may make an order that the respondent pay such urgent monetary relief to, or in respect of, a person protected by the order as the Court deems fair and reasonable.

(2) The following factors must be considered by the Court in determining an application for urgent monetary relief –

(a) the consequences of the domestic violence for the protected person;

(b) whether the protected person was wholly or partly financially reliant on the respondent;

(c) the financial circumstances of the protected person and whether there is a need for urgent monetary relief;

(d) whether the protected person would suffer hardship if an order for urgent monetary relief is not made;

(e) the financial circumstances of the respondent and whether the respondent has an ability to pay urgent monetary relief; and

(f) the desirability of ensuring wherever possible that the primary responsibility to provide urgent monetary relief is borne by the respondent rather than by the Department of Social Welfare.

[19] I have considered the grounds as mentioned in section 34(2) of the Decree. The Court is satisfied that the applicant is dependent on the applicant and from the document provided to this Court as Ex-01 the respondent can pay the monetary relief as asked by the applicant.

[20] Therefore I also order the respondent to pay $75.00 as weekly to the applicant as monetary relief and this will continue for 03 months.

[21] 28 days to appeal

13/02/2013

H. S. P. Somaratne
Resident Magistrate, Navua