Tuisovivi v Raico [2016] FJMC 175; Domestic Violence Case 271.2015 (15 August 2016)

IN THE MAGISTRATES COURT

AT NAUSORI

Domestic Violence Case No. 271/2015

BETWEEN: Rusiate Tuisovivi [Applicant]

AND: Mosese Raico and Mitieli Ravudolo [Respondents]

Appces and Representation

Rusiate Tuisovivi: Ini: In Person - Applicant
Mr Kumar (Legal Aid) for Mosese Raico and Mitieli Ravudolo - Respondents

Judgment

Introduction

The Applicant made an application for a DVRO against the Respondents on the basis that they were his nephews (relationship) and had sworn at him and also said “Luveni ulucou”

The Law

The Domestic Violence Decree is for the protectitection of the vulnerable and those who are in a domestic relationship. To get 0;dome;domestic violence restraiorder, there should ould be a vie or imminent v160;violence&#160 dic&#1la&#1lationship. Section 3(1) provides the Definition of Domestic Violence, that that is;

"3. (1) " Domesiolence;" intion y pery persoperson means violence against that phat person (son ("the victim") committed, directed or undertaken by a person ("erpet") with whom the the victim is, or has been, in a family oily or domestic; relationship..

(2) In relation to subsection (1), “violence" means any of the following:
(a) Physically injury or threatening physical injury;



(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 toain paphs (a) t(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."

The Decree also provides for the grounds for making a domestic violence restraininer in Section 23.n 23. These according to Section 23 are:

"1) A Court may make a domesiolence restraintraining order he the safety and wellbeing of a person if satisfied that the person is, or has been, in aly or domestic relationship with theondenondent, and-
(a) The Respondepondent has committed, is committing, or is likely to commit domestic violence st tnat person or against anst 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."

Section 46 states that “(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 dic violence restrainiraining ord/i>

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The relevant section dealing with variation, suspension and discharge of the DVRO is Section 38 of the Decree. The relevant section providefollop>

“3220;38.-(1) A person who -

(>(a) applied for a domestic violence restraining order;

(b) is protected by a domestic violence restraining order; or

(c) is bound by a domestic violence restraining order,

may, subject to this section, apply to a Court to vary, suspend or discharge the order.

(2) Subject to subsection (6), the Court must, before hearing an application to vary, suspend or discharge a domestic violence restraining order, consider whether each person who in the opinion of the Court has a direct interest in the outcome, has received notice of the application and had adequate opportunity to be heard.

(3) If an application to vary, suspend or discharge a domestic violence restraining order is made by or for a protected person, in considering the application the Court must have regard to -

(a) the wishes of the protected person;

(b) any current contact between the protected person and the person bound by the order;

(c) whether any pressure has been applied, or threat made, to the protected person by the person bound by the order or by someone else; and

(d) the objects and principles of this Decree.

(4) In relation to an application to which subsection (3) applies -

(a) the Court may vary, suspend or discharge an order only if satisfied that the safety of each person protected by the order would not be compromised;

(b) if the Court refuses to vary the order in the way sought or refuses to suspend or discharge the order,

the Court may vary the order in a way that it considers does not compromise the safety of a protected person.

(5) An application to vary, suspend or discharge a domestic violence restraining order may be made by or on behalf of the person bound by the order -

(a) only with the leave of the Court; and

(b) leave may be granted only if the Court is satisfied there has been a substantial change in relevant circumstances since the order was made or last varied.

(6) Where an application is made for leave under subsection (5), the Court may determine the application for leave without notice to the applicant, or to a person protected by the order, if the Court considers that -

(a) the application is or may be an attempt to harass the applicant or a protected person; and

(b) that there will be no prejudice to the applicant or to a protected person if the Court considers the application for leave without prior notice.

(7) For the avoidance of doubt, when a Court is considering an application for leave under subsection (5) and (6) the Court may not vary, suspend or discharge the existing order.

(8) If a Court grants leave to a respondent under subsection (5) to proceed with an application to vary, suspend or discharge a domestic violence restraining order the Court must make directions about -

(a) the date and place of the hearing;

(b) service of a sealed copy of the respondent's application, any supporting material and the order granting leave on the applicant and each person specified by the Court who is protected by the order; and

(c) any other matters that will assist with the determination of the matter.

(9) Where an order is made under this section varying, suspending or discharging a condition of a domestic violence restraining order made under section 33 in relation to a weapon, the Court must direct that the Commissioner of Police immediately be notified of the variation, suspension or discharge of that condition or of those conditions.”

The Evidence

The following persons gave evidence in this matter, Rusiate Tuisovivi, Mosese Raico and Mitieli Ravudolo.

Determination

This Court has considered all the material before it. This includes the evidences given in Court and the affidavits filed. The evidence before the Court is of 3 witnesses. The Applicant and the Respondents are related and fall within the ambit of the Domestic Violence Decree 2009.

The Court has noted all the evidence that was given in Court. From the evidence of the witnesses this Court notes that the words “luveni ulucou” as alleged by the applicant are not threatening or provocations. The Applicant stated in court other persons were present when such behaviour which included swear words were directed at him. He did not get these witnesses to support his allegations against the Respondents. The Respondents denied the allegations. Some minor discrepancies existed between the evidence of the Respondents who are Juveniles but the Court is mindful of their age and the period of time that has elapsed from the date on incidents to the time of hearing.

The Court believes the Respondents version of events for they are consistent with what transpired that day. The Court further notes that the 1^st Respondent was assaulted by the Applicant. This was not denied or refuted by the Applicant. The application for the DVRO against the Respondents by the Applicant is following that assault.

This Court from the evidence before it finds that the Applicant assaulted the 1^st Respondent. The Respondents did not in any manner or form threaten, intimidate, swear at or assault the Applicant. The application by applicant is dismissed.

Having found that the Applicant assaulted the 1^st Respondent this Court will impose a DVRO against the applicant to protect the Respondent. The meaning and effect of the DVRO so imposed is explained to the Applicant in open Court.

Any party not satisfied with this judgment has the right to appeal to the High Court within 28 days.

Chaitanya Lakshman
Resident Magistrate

15^th August 2016