EM v KA [2020] PGDC 22; DC4078 (18 November 2020)

DC 4078

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS FAMILY JURISDICTION]

IPO No 145 of 2020
BETWEEN

EM
Complainant

AND

KA
Defendant

Waigani: S Tanei

2020: 18^th of November
      

CIVIL – Application for Protection Order – Objectives and Underlying Principles of the Family Protection Act of 2013

CIVIL - Complainant in need of protection – Domestic violence committed against the complainant over a long period is sufficient to obtain protection from the Court - Required Standard and Onus of Proof –Balance of probabilities – Pre-requisite for granting of Protection Orders – Act of Domestic Violence – Likelihood of further act of domestic violence – Interim Protection Order made Permanent.

Cases Cited

Sundie v Aturoro [2017] PGDC 1 (12 September 2017)

References

Legislation

Family Protection Act 2013

Counsel

The Complainant in Person

The Defendant in Person

RULING

5^th October 2020

S Tanei: The Complainant through a Complaint dated 8^th September 2020 sought Protection Orders against the Defendant under the Family Protection Act 2013.

2. On 11^th September 2020, the Court granted Interim Protection Orders against the Defendant.
   
3. The matter went to trial.
4. This is my ruling on whether the Interim Protection Orders of 11^th September 2020 should be made permanent.
   

FACTS:

5. The Complainant and the Defendant met in the year 2000 while being students at the University of Technology. They had their first son in 2001 while still being at University.
   
6. They then graduated from University and got married legally in 2006. Out of their marriage they have three (3) children.
   
7. The Complainant alleges that she was and is still the subject of domestic violence, physical, verbal and sexual abuse by the Defendant. She has suffered from violence and assault from the Defendant since 2001.
   
8. The Defendant does not deny assaulting the Complainant but states in detail his reasons for doing so.
   
9. The Court heard the Complainant’s Application for Interim Protection Orders on 11^th September and Granted the Complainant an Interim Protection Order.
   
10. The matter went for trial 4^th November 2020 and this is the Court’s ruling on whether the Interim Protection Orders of 11^th September 2020 should be made permanent.
    

ISSUES:

11. The Court is faced with the following issue;
    
    1. Whether the Interim Protection Order of 11^th September 2020 should be made permanent?

THE LAW

12. The Complainant seeks Family Protection Orders under Sections 7 and 16 of the Family Protection Act 2013.
    
13. Section 7 of the Family Protection Act 2013 provides that;
    

7. APPLICATION FOR A FAMILY PROTECTION ORDER:

(1) An application for a family protection order may be made by:

(a) the complainant; or

(b) any person on behalf of the complainant if the complainant has given his or her written consent for that person to make the application; or

(c) a qualified legal practitioner on behalf of the complainant if the complainant has given his or her written consent for that practitioner to make the application; or

(d) a police officer on behalf of the complainant if the complainant has given his or her written consent for that officer to make the application,

(2) Subject ta Subsection (3), an application far a family protection order must be made in the prescribed form,

(3) A failure to comply with Subsection (2) does not invalidate the application,

(4) An application to a court for a family protection order may be made -

(a) orally; or

(b) in writing.

(5) If the application is made orally, the court must reduce the application into writing as soon as practicable in the prescribed form.

14. Section 16 of the Family Protection Act 2013 provides that;
    

16. COURT MAY MAKE PROTECTION ORDER.

(1) Following an application made under Section 7, a court may make a protection order against a defendant if the court believes on reasonable grounds that -

(a) the defendant has committed an act of domestic violence against the complainant; or

(b) the defendant is likely to commit an act of domestic violence against the complainant.

(2) In deciding whether to make a protection order, the court must take into account the following:

(a) the need to ensure that the complainant is protected from domestic violence; and

(b) the safety and well-being of the complainant; and

(e) the safety and well-being of other family members; and

(d) any other matter the court considers relevant.

(3) The court may include the name of a family member in a protection order made for the benefit of the complainant, if the court believes on reasonable grounds that the defendant has committed, or is likely to commit an act of domestic violence against that family member.

15. In the case of Sundie –v- Aturoro [2017] PNGDC 1, Her Worship Mrs. Tracey Ganaii discussed the principles and the intent behind the Family Protection Act 2013. The intent of the Act is to protect members of a family or people in a family setting from any form of domestic violence.
    
16. In that case, Her Worship Mrs Ganaii also discussed the relevant principles in relation to the handling of evidence. She held that the standard of proof in such cases would be on the balance of probabilities. She granted an Interim Protection Order against the Defendant considering the evidence on the balance of probabilities.
    

EVIDENCE

17. The matter went to trial. The parties relied on Affidavits during trial. The following Affidavits were tendered into evidence;
    
    1. Complainant’s Affidavits
    1. Affidavit in Support of EM filed on 11^th September 2020
    2. Affidavit in Response of EM filed on 14^th October 2020
    3. Further Affidavit in Support of EM filed on 22^nd October 2020
    4. Fufther Affidavit in Support of RA filed on 22^nd October 2020
       
    2. Defendant’s Affidavits
       1. Affidavit in Response filed on 12^th October 2020
       2. Affidavit in Response filed on 29^th October 2020
          

DISCUSSION ON EVIDENCE

18. I have considered the evidence and note in all the Complainant’s Affidavits that she was the subject of domestic violence throughout her married life with the Defendant. The violence and abuse arose out of her past experiences and trust issues by the Defendant. She states that she was subject to physical, sexual and psychological abuse by the Defendant since they met in 2000.
    
19. The parties’ first born son (RA) swore an Affidavit in support of the Complainant’s story. His story confirms that her mother, the Complainant is the subject of domestic violence. He stated that he witnessed the Defendant assaulting the Complainant, the most recent of which was in late 2019.
    
20. The Defendant states that he only slapped the Complainant on those various occasions. He states in his Affidavits that it was the Complainant’s actions that forced him to do what he did. He stated that the Complainant was involved in extra marital affairs with other men, the Complainant did not have any respect for him as her husband and that the Complainant has forced him out of their family home.
    
21. Apart from alleging that the Complainant was adulterous and disrespectful, the Defendant did not deny assaulting the Complainant.
    

FINDING OF FACTS

22. I apply the principles expressed by my Sister Magistrate Her Worship Mrs Ganaii in the case of Sundie –v- Aturoro and will weigh out the evidence on the balance of probabilities.
    
23. I find that the parties are in a family setting and that there is existence of domestic violence against the Complainant by the Defendant. This has happened since 2001.
    
24. I find from the Affidavit material that the Defendant does not deny assaulting the Complainant. However, he gives the various reasons stated above as his excuse for assaulting the Complainant.
    
25. I find from the evidence that the Complainant was and is indeed the subject of domestic violence.
    
26. In her Affidavit filed on 11 September 2020, the Complainant stated that the abuse started in 2001 and is still continuing. In her Affidavit of 14^th October 2020, the Complainant states that the Defendant is insecure and often exerts extreme physical abuse by hitting her head. In her Affidavit of 22^nd October 2020, the Complainant states that the Defendant is jealous and on various occasions the Defendant smashed her mobile because of his insecurity. She states that the violence is more than just slaps.
    
27. The Court notes the Defendant’s allegations of the Complainant’s adulterous actions. However, this Court sits as a forum to adjudicate against domestic violence and nothing else. It is important to note that the reasons given by the Defendant do not give the Defendant any right to exert violence or abuse on the Complainant. The Complainant is an individual and is protected by the law from being physically, sexually or mentally abused.
    
28. The Court understands that it is very frustrating for one partner if it catches another in an adulterous act or if it catches the other partner in an act that my lead to adultery or that the act may make the partner reasonably believe that it amounts to adultery or an adulterous act. Despite our sympathies, there is no law that gives one party the right to exert domestic violence over another.
    
29. The Defendant is at liberty to file Adultery proceedings against the Defendant in the appropriate Court if he has proof of the allegations of adultery against the Complainant.
    

APPLICATION OF THE LAW TO THE FACTS

30. The Proceeding is filed in the correct form under section 7 of the Family Protection Act 2013. The Complainant filed the following;
    1. Complaint
    2. Affidavit in Support
    100. Summons
    4. Application for Interim Protection Orders
       
31. Having found that the Complainant is the subject of domestic violence, I now apply the law.
    
32. From the Evidence before the Court, the Court is satisfied that the Defendant has committed an act of violence against the Complainant and the Defendant is likely to commit an act of violence against the Defendant in the future.
    
33. The Court applies section 16 of the Family Protection Act 2013. Here, the Court is of the view that there is a need to protect the Complainant from Domestic Violence in that the safety and wellbeing of the Complainant and her children is being threatened.
    
34. There is also nothing from the Defendant that would require the Court to set aside or dismiss the Interim Protection Order granted on the 11^th of September 2020.
    

CONCLUSION

35. From the above, the Court is satisfied that the Complainant was the subject of domestic violence by the Defendant and must be protected under the provisions of the Family Protection Act 2013.
    

COURT ORDERS

36. The following are the formal orders of the Court;
    
    1. The Interim Protection Orders of 11^th September 2020 are made permanent.
       

Lawyer for the Complainant: Complainant in Person

Lawyer for the Defendant: Defendant in Person