Nelson v Counsel [2005] PGDC 20; DC141 (23 September 2005)

DC141

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

CASE NO 2577 OF 2005

BETWEEN

BESSIE NELSON
Complainant

AND

BADEN COUNSEL

Defendant

Port Moresby: M Gauli

2005: 12th, 23rd September

District Court - Information - Seeking restraining orders for being abusive, threatening - harassment and using obscene language - No substantive cause of action

Counsel
Complainant, In Person
Defendant, In Person

DECISION OF THE COURT

23 September 2005

GAULI, M: In this cause of action the Informant seeks for restraining orders against the Defendant for being abusive, threatening, harassment and using abusive language toward the Informant since 1999 during their marriage.

The laws applicable in an action for restraining order are Sections 22 and 209 of the District Courts Act. The section 22 of the Act gives the District Court Jurisdiction to grant such relief, redness on remedies or the combination of them whether absolute or conditional as ought to be granted by the National Court in as full and ample manner.

And the Section 209 of the Act provides that where a person has threatened to do so the complainant a bodily harm, to cause injury to his house or to commit a breach of the peace or used language indicating to commit any such breach of peace and that the Complainant is in fear of the Defendant then the Defendant may be required to find sufficient sureties to keep the peace toward the Complainant.

The Brief Facts

The undisputed facts are these. The parties are married as a defector wife and husband since 1995. They have an eight-year-old daughter Zaidy Counsel who is attending Grade two class in Port Moresby Grammar School. The Complainant is from Hula village, Rigo in the Central Province. The Defendant is of a mixed parentage, the father an Australian and the mother from Daru.

The Evidence

The evidence for the Complainant is that since they moved from Tabubil to Port Moresby in 1999 the Defendant has been a habitual drinker with alcohol. When he is under the influence of alcohol he would do all sort things to her using daily swearing words and accusing her of giving her body to other men. In about May or June 2005 while the Complainant was being dropped off early one morning from her village, she saw the Defendant driving out from their residence with two unknown female. When the Defendant was being questioned about these two female, who have spent the night with the Defendant they both had a fight. Next day the Defendant returned to the house to apologize but the Complainant told him to leave and they had another fight. The Complainant then stoned the car.

On the 12th August 2005 when the Complainant went out with her aunty and her girlfriend, the Defendant entered their flat and cut up all the Complainant's trousers and shoes. On Saturday 14th August 2005 the Defendant returned to the flat drunk, on the early hours in the morning and destroyed everything that were outside the house. He was swearing and screaming at her saying that he was going to murder her. The Defendant got an iron rod and was hitting the iron bar door, knocked the lock out opened the door and began bashing up the Complainant. Her neighbour called the police and took him away.

The Defendants evidence is as follows. At the moment he lives in a flat on his own while the Complainant lives in other flat, which he pays the rent. The Complainant seems to portray a picture that he is an irresponsible husband. In fact he says he is a hard working person as a result he has been elevated to a position of the Operations Manager for the Shipping Company. He says that there are always ups and downs in any family and one just don't run away from problems but take responsible to solve them. The true facts of their arguments are not what the Complainant has stated. He says about three months ago when the Complainant returned from the village she heard from gossips that he was unfaithful to her. Since then she threw him out of their flat and she had been bitter towards him. Every time he tries to explain and talk things over, she screams at him and beats him with anything she picks up. She even stoned the company car. He says he loves his wife and their daughter and he beg this court to have sympathy and not to destroy the family.

From hearing and reading the affidavits evidence of both parties I find that the evidence of the Complainant is weightier that that of the Defendant's evidence. I find on the balance of probabilities that the Defendant has assaulted, threatened to murder her; abused her by telling her that she gives her body to other men when there is no evidence of that claim. I do find that the Complainant does live in fear of the Defendant. Recently on the 03rd September 2005 the Defendant had gone to the complainant's place of work while under the influence of alcohol and confronted her and swore at her in the presence of her workmates, so she had to leave work that day. Although the Defendant says he loves his wife his actions and or behaviour are quite opposite to what he says of course it is not the intentions of the court to destroy this family but rather that the family be put together to live a peaceful and harmonious life.

And this court orders that:

1. The Defendant to be placed on Two (2) years good behaviour bond with a sureties of K200.00 to keep the peace towards the Complainant.
   
2. The Defendant be restrained from consuming alcohol during the period of this bonds.
   
3. That the Defendant be restrained from assaulting, insulting, abusing, intimidating or harassing the Complainant (wife) at any place, anywhere and anytime.
   
4. That the Defendant returned to live together with the Complainant (the wife).
   
5. The Interim Restraining Orders date 25th July 2005, in particular paragraph be stayed.
   

For Complainant: In Person
For Defendant: In Person