Andrew v Tuyan [2021] PGDC 49; DC6007 (27 May 2021)

DC6007

Papua New Guinea

[In the family Protection Jurisdictions of the District Court Held at Waigani]

IPO NO 31 OF 2021

BETWEEN:

ESTHER ANDREW
[Complainant]

AND:

RAYMOND TUYAN
[Defendant]

His worship Paul P. Nii

26^th May 2021

PROCEEDINGS: -Application-Family Protection Act- Section 5, Section 12(4) of the Family Protection Act 2013- Application by the Defendant to dismiss the Interim Protection Order.

EVIDENCE: Notice of Motion pending trial – assessment of evidence not relevant at this stage- NOM-Abuse of process-Dismissed.

PNG Cases cited:

Nil

Overseas cases cited:
Nil

REFERENCE

Legislation
Family Protection Act 2013
District Court Act, Chapter 40

Counsel
Complainant: Esther Andrew Complainant in person

Defendant Represented by office of the Community Development For the Defendant

RULING ON NOTICE OF MOTION

27^th May 2021

INTRODUCTION

NII, P Magistrate. This is my ruling on a Notice of Motion filed by the Defendant asking the court to dismiss the Interim Protection Orders of 20^th May 2021. The Notice of Motion was filed pursuant to Section 22 of the District court Act.

REMEDY

1. On the 20^th May 2021, the court issued an interim .restraining Order against the Defendant from harassment, abusing, intimidation and assaulting the Complainant and her children. This IPO is challenged and hence my ruling.
   

FACTS

2. On 4^th May 2020, the Complainant filed an application for protection Order under the Family Protection Act 2013. The Complainant alleges her husband who is the father of their four children was so violent and harassed the Complainant and her children. On the bases, she asked the court to give her a protection order against her husband. Pending trial, an Interim Protection Order (IPO) was issued against the Defendant on 20^th May 2021.
   
3. However, on 24^th May 2021, Defendant through the Department of Community Development has filed a Notice of Motion supported by the Defendant’s affidavit challenging the IPO orders of 20^th May 2021 that it was improperly issued and was misconceived. The Defendant asked the court to dismiss the IPO.
   
4. On the 26^th May 2021, the Notice of Motion was heard, the application by the Defendant was viciously argued by both parties and this is my ruling.
   

ISSUE

5. Whether the Defendant’s application to dismiss the IPO is properly before the court?
   

THE LAW

The Law on Interim Protection Order

6. Sections 12 of the Family Protection Act deliver the unswerving foundation for court to issue Interim Protection Order. The law is below:
   
   12. Court may make interim protection order.
       

(1) In this division "court" includes the Village Court.

(2) A court may make an interim protection order if the court believes on reasonable grounds that the complainant is in danger of any form of domestic violence.

(3) The court may impose conditions in an interim protection order in the same way that it may impose conditions in a protection order issued under Division 2 of this Part.

(4) A court may make an interim protection order whether or not the defendant or complainant is in court.

(5) In avoidance of doubt, a court may make an interim protection order even though an application was also made under Section 7 for a protection order.

(6) A court may include the name of a family member in an interim protection order made for the benefit of the complainant if the court believes on reasonable grounds that the family member is in danger of any form of domestic violence.

7. Section 5 of the Family Protection Act provides the reliable establishment for court to consider the meaning to Domestic Violence before granting or refusing Interim Protection Orders. The law is beneath:
   

5. Meaning of domestic violence.

(1) A person commits an act of domestic violence if he or she does any of the following acts against a family member:

(a) assaults the family member (whether or not there is evidence of a physical injury); or

(b) psychologically abuses, harasses or intimidates the family member; or

(c) sexually abuses the family member; or

(d) stalks the family member so as to cause him or her apprehension or fear; or

(e) behaves in an indecent or offensive manner to the family member; or

(f) damages or causes damage to the family member's property; or

(g) threatens to do any of the acts in Paragraphs (a), (c) or (f).

(2) Without limiting Paragraph (1) (d), a person may stalk another person by—

(a) following the person; or

(b) watching the person; or

(c) loitering outside the premises where the person lives, works or frequents for the purposes of any social or leisure activity; or

(d) making persistent telephone calls, sending persistent text messages or other forms of communications to the person or to the premises where the person lives or works.

(3) For avoidance of doubt —

(a) a single act may amount to an act of domestic violence; and

(b) a number of acts that form part of a pattern of behaviour may amount to domestic violence even though some or all of those acts when viewed in isolation may appear to be minor or trivial.

DEFENDANT’S ARGUMENT

7. The Defendant Through the office of the Community development argued that the interim protection orders of 20^th May 2021, be set aside for being misconceived, improperly issued and an abuse of process. Defendant further argued that the IPO was not issued according to Law. Defendant says he is the father of his children and should have access to them.
   

COMPLAINANT’S ARGUMENT

8. Complainant appeared in person and argued that IPO issued on the 20^th May 2021 was appropriately issued and is in line with the Family Protection Act 2013. Complainant further informed the court the IPO was to restrain his husband who is the Defendant from intimidation, harassment and violence against her and their children.
   

RULING

9. This is my ruling on the application moved by the Defendant pursuant to Section 22 of the District Court Act that the Interim Protection Orders of 20th of May 2021 be set aside for being misconceived and improperly issued and an abuse of court process and alternatively the interim protection Order No 1 be set aside or varied for being improperly issued. The Application was supported by the Defendant’s Affidavit undated. This was a contested NOM which the Applicant and her daughter who were in court viciously objected. I have read through the Affidavits or statements provided to the court by the parties, the Applicant and the Defendant and observed that the parties’ issues all related to their marriage.
   
10. The first order in the terms of the orders sought in the NOM for the whole IPO granted on the 20^th May 2021, to be set aside is dismissed as such issues would only be decided after trial proper. The Defendant’s application in itself is an abuse of process as it contravened Section 12 of the Family Protection Act 2013.
    
11. Having said that let me look at the second order sought. The second order sought is for the interim Protection Order Clause No 1 to be set as aside or varied for being improperly issued and not according to law. This No 1 reads:
    

”An interim protection Orders (IPO) is granted ex parte for the immediate/protection of the Complainant Esther Andrew, her children, her family members and work mates”

12. Firstly, the order was issued to the Plaintiff/Applicant in the absence of the Defendant. The question is did the Court error in law when issuing the ex parte orders? Now let’s look at the law governing Family under the Family Protection Act 2013. Section 12(4) of the family Protection Act 2013 reads:
    

“The Court may make an interim Protection Order whether or not the Defendant or Complainant is in court”.

13. In this case when the orders were issued on 20^th May 2021, the Defendant was not in court and hence as far as section 12(4) of the Family Protection Act is concern, the IPO was legally issued and well within the confinement of the Law.
    
14. I am satisfied that the Applicant has demonstrated to the court a case of Domestic violence pursuant to Section 5 of the Family Protection Act and the court upon satisfaction of the evidence provided by the Applicant has issued the IPO but that does not mean that the order is permanent, it can be revoked, varied or made permanent after trial when evidence from both sides are assessed.
    
15. The issues raised in order one (1) will be fully determined after trial proper when witness from both sides are called to give evidence. I appreciate the application by the Defendant that he is the father and he can have excess to the children, the issue here is not about excess but protection. Excess is more or less about visiting his children, they are his children, nothing wrong with it. The IPO is not restraining the Defendant’s excess to his children but it is placing a protection for the Applicant and his children from harassment, intimidation, provocation and using of abuse words either physically or emotionally against the Defendant.
    
16. Now, let’s look at the order; does it restrain the Defendant from having excess to his children? No; read the orders very carefully, it does not deal with issues of custody or excess but strictly confined to protection from Defendant’s actions. Protection from harm and restraining excess are two different words with different meanings. Although English is not our language, parties need to get a dictionary and study their difference. The court is not restraining the Defendant’s moments or excess to his children but the Defendant is restrained or barred from harassing the Defendant and her children. Moreover, the court has imposed a temporary 100 meters restraining against the Defendant. This only applies to the Complainant, not the children. I am not here to touch the issue of custody and excess to the children as this could be done by a different court. I am only interested in the protection orders against the Defendant.
    
17. Nevertheless, there is evidence before me that the Defendant’s female child gave evidence against him when the NOM was heard meaning there is more to it than just this application. Parties must understand this, the children appears to be adult where they can come to the court and testify later during trial. I have the Defendant and Complainant’s Affidavits before me and both affidavits demonstrate serious issues of family and marriage which will be determined when a trial proper is heard.
    

CONCLUSSION

18. This appears to be a serious family issue that needs urgent attention from the court which I cannot drag it any longer; therefore, everything will be settled after trial. Given the circumstance, I will set this matter down for trial at the earliest than any longer. I am of the view that I will proceed to hear the substantive matter at the earliest through a proper trial after when all witness are called in to give evidence or whichever way parties decides how trial would be administered. The Defendant’s Notice of Motion will be not be entertained at this stage.

ORDERS

1. Notice of Motion is refused as it is an abuse of process because it raises issues of substantive cause of action which could be settled only after trial when evidence is called in and also raises issues that this court has no jurisdiction to deal with.
   
2. Matter adjourned to 1^st June 2021 at 9.30am for trial. After trial I either will make the IPO permanent, vary or refuse.
   

100. Parties to call in witness for their case.
     

4. IPO of 20^th May 2021, is extended.
   

Complainant in Person For the Complainant
Defendant The office of the Community Development