Aro v Kaipas [2021] PGDC 172; DC7033 (7 December 2021)

DC7033

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS FAMILY JURISDICTION]

IPO No 120 of 2021
BETWEEN

HELEN ARO Applying on and on behalf of WA
Complainant

AND

BEVERLYN KAIPAS
Defendant

Waigani: O Ore Magistrate

2021: 7^th of December
      

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

CIVIL – Minor in need of protection – Domestic violence committed against the minor 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.

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

Overseas Cases

References

Legislation
District Court Act
Family Protection Act 2013

Counsel
Complainant – Tarp Grace (LTI Trainee)
Defendant – No appearance

DECISION ON EXPARTE APPLICATION FOR INTERIM PROTECTION ORDERS

07^th December 2021

1. O Ore, Magistrate: This is an urgent application by the Complainant who applies for and on behalf of her son a minor of 14 years old. For purposes of protecting the identity of the minor, he shall be addressed as WA.
   
2. The Complainant is represented by Miss Tarp, a Trainee Lawyer at the Legal Training Institute. I am satisfied that she is duly authorised by the Legal Training Institute per section 59(1)(b) of the District Court Act to appear before this Court. Thus I granted her leave to appear.
   
3. Miss Tarp proceeded to make submissions on the Complainant’s application which I heard, considered and had it adjourned to 07^th December 2021 for my decision.
   
4. This is now my ruling on the application.
   

FACTS

5. The Complainant brings this proceeding on behalf of her son WA. The Defendant is the current wife of WA’s father.
   
6. The Complainant was married to WA’s father (whose name is not provided) and together they had WA on 09^th June 2007. Thereafter in 2018, the Complainant’s husband left them and married the Defendant.
   
7. WA was forced to return to the Village in Rigo Central province and live with his grandparents. His stay at Rigo was untenable as his grandfather complained about food. This resulted in him being brought back to the Port Moresby by his mother (Complainant). The Complainant who lived at 8 mile decided to send him to stay with his father who rented a place a Gerehu.
   
8. It is at Gerehu that WA was subjected to physical assault, threats and intimidation. At one instance, WA was physically assaulted by the Defendant when she took a bottle of ice blocked water and threw it at his head causing him to bleed. This lead to his father taking him back to 8 mile where his mother lived. Before leaving he told them that the Defendant does not want them to come back to Gerehu as it would only incite further family problem.
   

ISSUE

9. The issue before this Court is whether there are any acts of domestic violence committed on WA requiring an urgent ex-parte IPO.
   

RELEVANT LAW

10. The District Court draws its power under the Family Protection Act 2013(FPA) to grant IPO’s. Section 12 (4) of the FPA provides that an application for an IPO can be made ex-parte in the absence of both parties.
    
11. The application of the FPA applies in so far as the family unit is concerned. Its application is only limited to cases where an act of domestic violence is committed by a person on another person who is a family member. A family member under Section 2 of the FPA means:
    
    1. The Spouse of the person;
    2. A child of the person or a child of the persons spouse (applicable to WA in this instance);
    100. A parent of the person or a parent of the person’s spouse;
    4. A grandparent;
    5. A brother or sister of the person or a brother or sister of the persons spouse;
    6. Any other person who is treated by the spouse as a family member.
       
12. Unlike Criminal proceedings, the standard of proof required to grant an IPO is based on the balance of probabilities. This means that the Court has to be satisfied that an event occurred and its occurrence was more likely to happen based on the evidence before it (see case of Sundie v Aturoro [2017] PGDC 1 (12 September 2017). The Court therefore has to consider the evidence before it and consider if an act of Domestic Violence has occurred and whether there is a likelihood of it reoccurring. Only after the Court is satisfied with the above can it then go on to grant an IPO.
    
13. The purpose of the IPO in my respectful view is to keep the peace within the family unit until the matter can be amicably settled.
    
14. In light of the above, IPO’s can only be granted if there is evidence showing on the balance of probabilities that the Complainant is the victim of Domestic violence done on him/her and that there is a likelihood that the violence may continue if the IPO is not granted.
    

EVIDENCE

Helen Aro

15. The Complainant who is applying for and on behalf of WA gave evidence through an undated Affidavit. The Affidavit was sworn by her and commissioned by a Commissioner for Oaths. I will accept this affidavit.
    
16. After hearing from Miss Tarp and also after going through the Complainant’s affidavit, I am satisfied that actual domestic violence in the form of physical assault was occasioned on WA causing him injury to the head. As to whether there is likelihood of further Domestic Violence arising in the near future, I find that there is evidence before the Court confirming this. This is seen in paragraph 9 of the Complainant’s affidavit. It shows that WA may be further harassed or abused if he visits his father’s house in the future.
    

WA

17. WA also gave his evidence through an undated affidavit. The affidavit was sworn by him and commissioned by a Commissioner of Oath. I have accepted this affidavit. This affidavit shows that WA was physically and verbally abused on many occasions by the Defendant. Being a minor, these abuses have taken a mental toll on WA causing him to leave school.
    
18. He was abused on several occasions even to the point where he was hit on the head with an ice blocked water bottle causing him to fall to the ground. He was further verbally abused by being sworn upon in the presence of his father and called names like “sanguma pikini” or drug body.
    
19. He says that on 28^th May 2020, the Defendant threatened to kill him and his mother when he went over to his father’s house to get his school uniform. The Defendant was stopped by his father’s brother (his uncle). The Defendant told him that his uncle would take his body to the village.
    

ANALYSIS OF EVIDENCE

20. The evidence by the Complainant and WA in my view shows that WA and his siblings have been subject to both physical and verbal harassments and also threats to be killed. There is enough evidence to show that Domestic Violence has been occasioned on WA on multiple occasions. Furthermore, I find also that the likelihood of the Defendant harassing WA and the Complainant is very high and therefore warrants for orders for their immediate protection to maintain peace.
    

DISCUSSION OF LAW AND EVIDENCE

21. In light of the above, I find that WA and his siblings have been subject to Domestic Violence by the Defendant and that the likelihood of the Defendant committing further acts of violence towards WA and his siblings is very high. I therefore find that WA and his siblings are in urgent need of an Interim Protection Order.
    

COURT ORDERS

22. I therefore make the following orders;
    
    1. An Interim Protection Order (IPO) is granted for the immediate and urgent protection of the WA and his siblings.
       
    2. The IPO applies for 30 days commencing on the date of service of the orders on the Defendant. The IPO expires 30 days after date of service of the IPO on the Defendant unless revoked, varied, extended or is replaced by a Permanent Protection Order.
       
    100. The matter is adjourned to 13^th December 2021 for review.
         

Lawyer for the Complainant: Tarp G (LTI Trainee)
Lawyer for the Defendant: No Appearnce