Pakure v Dalele [2021] PGDC 82; DC6039 (6 July 2021)

DC6039

Papua New Guinea

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

IPO NO 29 OF 2021

BETWEEN:

RAYMOND PAKURE
[Complainant]

AND:

VANESSA DALELE
[Defendant]

His worship Paul P. Nii

06^th July 2021

PROCEEDINGS: -Application-Family Protection Act- Section 5, Section 12(4) of the Family Protection Act 2013- Application by the Applicant for a Family Protection Order

EVIDENCE: Applicant’s Affidavit – Defendant’s Affidavit – Orders accordingly.

PNG Cases cited:

Andrew v Tuyan [2021] PGDC 49; DC6007 (27 May 2021)
Rawson Construction Ltd v Department of Works [2005] PGSC 39; SC777 (4 March 2005)

Overseas cases cited:
Nil

REFERENCE

Legislation
Family Protection Act 2013
District Court Act, Chapter 40
Constitution

Counsel
Complainant: Raymond Pakure Complainant in person
Defendant Vanessa Dalele Defendant

RULING

06^th July 2021

INTRODUCTION

NII, P Magistrate. This is my ruling on an application for Protection Orders filed by the Applicant on 12^th May 2021. The application is supported by the Applicant’s statement in support dated same.

REMEDY

1. On the 12^th May 2021, the court issued interim restraining Orders against the Defendant from harassment, abusing, intimidation and assaulting the Complainant. This IPO is challenged by the Defendant and henceforth this is my ruling.
   

FACTS

2. Applicant says the Defendant is his former partner for eight (8) years. They have a child from that association and her name is Fiona who is now aged six (6) years.
   
3. Complainant says on 15^th April 2021, the Defendant physically assaulted him with a big rock on his lower side part of his back just above the left buttock. Applicant says this caused severe pain to his lower back area and he had limped every time when he walks around. Applicant says on the same date the Defendant damaged his vehicle a Toyota Harrier by hurling rocks and bricks at the car. Applicant further asserts that Defendant stole his phone and the device is now in her procession and she has threatened to terminate the Applicant from employment with BSP.
   
4. The Plaintiff after fearing for his life from the Defendant’s actions came to the court to apply for a Family Protection Order. Pending the substantive argument, on 12^th May 2021, an ex partie temporary Interim restraining orders were granted to the Applicant. Defendant has filed four Affidavits including herself, Tati Dalele, Olive Karukuri and Olive Amukele.
   

ISSUE

5. Whether the Applicant’s application for a Family Protection Order be granted in the circumstance?
   

THE LAW

The Law on Interim Protection Order

6. Sections 12 of the Family Protection Act 2013, deliver the unswerving foundation for court to issue Interim Protection Order. The law is below:
   
12. 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 2013, provides the reliable establishment for court to consider the meaning of Domestic Violence before granting or refusing Interim Protection Orders and same should be made enduring upon rational believe that such grounds are met. 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.

COMPLAINT’S ARGUMENTS

8. The Applicant’s argument is very much netted in the statement of facts and hence I will not state them again here. However, in summary, the Applicant is applying for the Family Protection Orders against the Defendant from intimidation, harassment and violence against him, his properties and even not to go close to his work place and his new girlfriend. Moreover, Applicant says his daughter was neglected by the Defendant and as a consequence she advanced some skin diseases. Applicant’s new girlfriend Sylvie Mileng has put in a statement in support of the Applicant that the Defendant continues to harass her even after the Applicant had left her.
   

DEFENDANT’S ARGUMENT

9. Defendant’s argument is funded on her Affidavit in support filed in this court which is undated and her Defense dated 16^th June 2021. Defendant stated at paragraph 5 of her Affidavit that she had an argument with the Applicant after she found out that he was having an affair with a female named Sylvie Mileng. Defendant says her frustrations against the Applicant arose when she found out with proven evidence that Applicant was cheating on her. Defendant further admitted at paragraph 7 of her Affidavit that she was stoning the Applicant’s car because of frustrations against the Applicant.
   
10. Defendant is also concerns about the welfare and safety of her female child. Defendant is worried because the Applicant might not pay much attention to her child. Defendant stated at paragraph 21 of her Affidavit that her child was diagnosed with typhoid while she was with her father and his new girlfriend.
    

CONSIDERATION OF EVIDENCE

11. There is evidence that Applicant and Defendant were in a dedicated relationship for some 8 years and a child was born from that union. There is evidence that the Defendant and the Applicant were living happily until there was evidence of infidelity and cheating by the Applicant which was the turning point. The Applicant informed the court that the Defendant was not her partner as they were in a de facto relationship or were in a relationship when they lived together as a couple but were not married. There is evidence that when the Port Moresby Family Court issued orders against the Applicant for adultery, the court actually recognized that there was marriage but the Applicant cheated on the Defendant. Although the basis of the decision is not known, I would conclude that the court considered schedule 2(1) of the Constitution when such orders were used. The law is below:

“SCHEDULE 2.

Sec. 18.

ADOPTION, ETC., OF CERTAIN LAWS.
PART 1.—CUSTOM.

Sch.2.1. Recognition, etc., of custom.

(1) Subject to Subsections (2) and (3), custom is adopted, and shall be applied and enforced, as part of the underlying law.”

12. In some prevailing PNG customs, when a man and women stay together for longer periods and have children, regardless of whether they are married legally by statute /western laws or not they would be considered as partners. This was the purpose why the Adultery orders were issued against the Applicant and his new partner and therefore am satisfied that the Defendant and the Applicant were partners.
    
13. I have evidence that parties child Fiona is now with the Applicant, the Applicant went and got her when IPO orders were issued. The intent of the IPO is not to go after the child but to protect the Applicant from abuse, intimidation, harassment and assault either directly or indirectly by the Defendant until the substantive hearing and subsequent ruling. I have stated obviously in Andrew v Tuyan [2021] PGDC 49; DC6007 (27 May 2021), that the jurisdictions of the Family Protection Court is not to deal with custody of children or to deal with the issues of marriage but it is only confirmed to violence within family.
    
14. I also have evidence that the Applicant and Defendant’s child Fiona was contracted with typhoid when she was taken away by her father after the IPO orders. Children are innocent and they must not be dragged into adult problems or issued affecting their parents. Children must be given the care, love, comfort and protection they deserve. Little Fiona deserves better.
    
15. There is also evidence of damage on the Applicant’s vehicle. However, this is a Family Protection court and has no jurisdiction to enquire with assessment of damages and material processions.
    
16. As to the injuries inflicted on the Applicant, the Defendant admitted same but justified because she was infuriated by the Applicant’s attitude of seeing another woman. Defendant was sending a message to the Applicant by stating that she would not want to see Silvie getting into her car. The Defendant then went onto stating that she would drag Silvie into the police station. The Defendant also wanted the Applicant to relay this message to Silvie. Moreover Defendant written in her message to the Applicant as I quote:
    

“.....BSP mama na papa fucking each other....

....Ngad sam blo upla....

....Tell you bitch to start applying out.....

....I will make sure you both live a miserable life....

...Ill kill your bitch....

....Ba mi panim m na kilim m....

....Tuppa asskan....

....Tell her ba mi come lo office....(end of quote)”

17. When the Defendant sent to the Applicant the above messages, the Applicant responded by saying “and why are you carrying on like we are still together? You and I are no longer, when the fuck are you going to get that?” From this evidence I would satisfy myself that the Defendant and Applicant had a Marriage problem when the Applicant started seeking another woman named Sylvie. All the words that came out of the Defendant were out of her frustrations against the Applicant for seeking Sylvie. To me it is a situation that was caused by the Applicant. I have evidence to satisfy myself that the Applicant is seeking this Order to protect him and his new girlfriend form being attacked by his former girlfriend. Although, the court has no jurisdiction to control someone’s love and feelings towards others, the principal intent of the Family Protection Act 2013, must not be abused. Parties must not run to the Family Protection Court to defend their polygynyous, adultery, unfaithfulness, infidelity or other family correlated issues apart from sincere family protection issues.
    
18. The common law doctrine of equity states who ever seeking equity must come with clean hands. In here, although the Applicant has filed this application against the Defendant for allegation of assault and intimidation, the Applicant appears have caused all this, he is not coming to the court will clean hands.
    

RULING

19. I am satisfied the Applicant and Defendant were partners or in some dominant PNG Customary context they were husband and wife, there is no issue about that. Nevertheless, when the Applicant left the Defendant’s house where they were previously together and moved out by seeing other women, it started everything which is now the subject of this hearing. The Defendant never knew that Complainant was in a relationship until she found out that Sylvia with Defendant and the Applicant were all in a love triangle or in other words the Defendant and Sylvia were in an affair with the Applicant. One wrong cannot justify another wrong as is the attitude in Rawson Construction Ltd v Department of Works [2005] PGSC 39; SC777, when the Defendant says she was provoked into doing this, but this allegation has emanated from a case of adultery and to me it appears that this is an ongoing issue. It is an issue that affects emotions, feelings, Love and desires for one another. Love gamble has serious negative consequences and this is one such case.
    

CONCLUSSION

20. This court has no jurisdictions to deal with issues of custody, maintenance, access, adoption, adultery and other family issues except family Protection and for this reason I will make an order that will in the circumstance of this case will have a bearing in all parties to this proceedings. I will also take into account their child’s rights and protection under the law. The IPO orders issued on 13^th May 2021 is varied and abridged into the following orders:

ORDERS

The Court’s formal orders are:

1. The Defendant and Complainant’s child Fiona must not be subjected to fear, intimidation, force, inducement and harassment from her parents. She must be give the love, care, attention and guidance that she deserves from both parents for her upbringing.
   
2. The Defendant and her agents/servants are prohibited and restrained from committing any form of domestic violence such as physical violence or verbal abuse, threatening words or behavior or in a manner that is likely to cause harm or injuries disturbing the Complainant.
   

100. The Defendant and her agents/associates are prohibited and restrained from harassing, intimidating and swearing with the Complainant by using any means of communication via mobile phone calls, text messages, Facebook, watsapp, twitter, imo, email and any form of electronic device or his agents towards the Complainant/Applicant and his family at any time anywhere.
     

4. The Defendant and her agents/associates are prohibited and restrained from disturbing the Complainant from his place of employment without his consent at any time anywhere and disturbing the Complainant in his daily life/living by keeping and maintaining peace towards him at all time.
   
5. The Defendant and Applicant may communicate and see each other for the interest of order No “a”. The orders enclosed in paragraphs “b-e” do not bar the Defendant and Applicant from meeting to discussing issues regarding adultery proceedings, family responsibilities, other proceedings (either through statute or customary) to determine their affiliation and custody or maintenance proceedings in other appropriate jurisdictions. Orders No “b-e” do not bar communications and meetings between the Defendant and Applicant regarding the comprehensive purpose of Order No “e”.
   
6. In the evident the Defendant and his agents/associates and relatives breaches any terms of these orders, the Defendant and those involved shall be arrested and be brought before this honorable court to be dealt with according to law
   

Complainant in Person For the Complainant
Defendant For the Defendant