John v Winke [2022] PGDC 1; DC7098 (17 January 2022)

DC7098

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS FAMILY JURISDICTION]

IPO No 108 of 2021
BETWEEN

EMMAH JOHN
Complainant

AND

ISMAEL WINKE
Defendant

Waigani: O Ore Magistrate

2022: 10 & 17 January
      

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.

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 – In Person
Defendant – In Person

RULING

17^th January 2022

1. O Ore, Magistrate: The Complainant Emmah John filed this proceeding on 15^th November 2021. She sought protection orders against Ismael Winke (Defendant) who is also the father her child. She claims that Ismael has been very abusive and threatening towards herself and her family.
   
2. Initially, the matter came before me on 15^th November 2021 where I heard her application for Interim Protection Orders. The matter was heard ex parte and after having found that there was evidence showing domestic violence against Emma, I granted the IPO.
   
3. I must also point out that during the course of the proceedings, parties were encouraged to talk amongst themselves with the view of peacefully settling the matter. This did not work out and parties returned to Court for hearing.
   
4. Both Emmah and Ismael have filed their Affidavits in support and response and have opted to rely on them. Emmah has also filed a written submission which I took into consideration. This is now my ruling on the submissions made.
   

FACTS

5. Emmah John and Ismael Winke began their relationship in the later part of 2019. Out of this relationship they have a son who was born on 08^th July 2021.
   
6. Shortly after the birth of their son, Ismael started becoming abusive. He began to harass Emmah by sending abusive and verbal threats. He sent swear messages and also used vulgar words in his messages to Emmah. His messages were sent via WhatsApp, text and also email.
   
7. Ismael’s messages were relentless and were pointed out not only to Emmah but also her father and her family. He was like a man on a mission to cause violence against Emmah and her family.
   
8. Emmah simply had enough and been fed up brought this matter to Court where we are here today.
   

ISSUE

9. Whether the Interim Protection Orders granted on the 15^th of November 2021 should be made permanent?
   

RELEVANT LAW

10. An Interim Protection Order (IPO) that has been granted, remains in force for only 30 days unless it is revoked, removed or replaced by a protection order^[1]. In this case, Emma wants the IPO to be made permanent or rather wants it to be replaced by a protection order.
    
11. Sections 7 and 16 of the Family Protection Act 2013 provides this Court the necessary jurisdiction or power to grant protection orders. Sections 7 and 16 are in the following words:
    

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.

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.

12. Under section 16 (1) (a) (b) of the FPA, the Court may make a protection order against a Defendant if it believes:
    
    1. The Defendant has committed an act of domestic violence against the Complainant; or
    2. The Defendant is likely to commit an act of domestic violence against the Complainant.
       
13. I will adopt the view by her Worship Magistrate Tracey Ganaii (as she then was) in the case of Sundie v Aturoro [2017] PGDC 1 (12 September 2017) that the standard of proof required to make a protection order is one on the balance of probabilities. This means that the evidence has to be weighed and considered and found that an act or event was more likely to have occurred then not.
    

EVIDENCE

14. On hearing of submissions, Emmah John relied on her Affidavit in support Filed 10^th of December 2021 and her Sworn Statement of 15^th November 2021. She further produced an Affidavit by Daphne Ian Gabu during hearing which I accepted after no objection from Ismael Winke.
    
15. Ismael on the other hand relied on his Affidavit dated 20^th December 2021.
    

ANALYSIS OF EVIDENCE

16. Evidence by both Emmah and Ismael confirm that they started their relationship sometime in September 2019 and had their first child on the 08^th of July 2021. I find from the evidence that disputes began when Emmah became pregnant. Emmah’s family were of the view that Ismael should have been more supportive during her pregnancy and that he should have sat down with them to talk about his future plans for their daughter.
    
17. Emmah and her family were also not happy with Ismael because of the lack of support he shown during her pregnancy. This all led to Emmah’s father forcing Ismael out of the Labour Ward during Emmah’s labour. Ismael became frustrated because he was the father of the child and to be forced out greatly affected him.
    
18. The reaction by Emmah’s father to force Ismael out of the Labour Ward where his child was born did not go down well with Ismael. Because of this, Ismael became frustrated and angry, went and got himself drunk and started his verbal tirade through text, email and WhatsApp messages. His verbal abuses were constant and continued until Emmah decided to bring the matter to Court.
    
19. However, being frustrated does not give him the right to start abusing people or family members. There were other means available to solve this problem rather than to resort to violence in the first instance. His abusive behaviour towards Emmah and her family caused unnecessary stress and fear for their safety.
    
20. Evidence by Emmah shows that the threats by Ismael were quite serious and the words used his messages were quiet disturbing. He even went to the point of calling the mother of his child a “pamuk kan”, or “kaikai kok blo papa you”. In part of his message, he threatened to bring his family over and start a commotion. He even stated that he was waiting outside with his boys. His tirade of words was relentless and from evidence were sent to Emmah almost every 30 or so seconds apart. The abuse came in on a daily basis.
    
21. Ismael in his affidavit basically admits to getting drunk and being abusive towards Emmah and her family. This was all because her father had removed him from the labour ward. He puts the blame on Emmah’s father as the cause of the problem. His attempts to sit down and talk with Emma’s father were futile and had gone nowhere leaving him frustrated.
    
22. Ismael asks for custody of the child but at this point the Court does not have that jurisdiction. That is something for the Family Court to consider. He calls Emmah his wife which she in her submission refuses because of no formal customary or legal arrangements between respective families.
    
23. All in all, Ismael admits that he did cause domestic violence on Emmah when he psychologically harassed, abused and intimidated her by sending her those profane WhatsApp, text and email messages.
    

DISCUSSION OF LAW AND EVIDENCE

24. After considering the evidence before me, I find that Ismael has committed an act of domestic violence against Emmah. I also further find that the likelihood of him recommitting domestic violence in the future is very high given that parties are very much still in disagreement. I find that if Ismael had involved his family in this matter, it would have blown out of proportion with actual physical violence. Fortunately, Emmah came to Court and the matter was brought under control.
    
25. Because of the above, I will make the IPO permanent and make the following Family Protection Orders below.
    

COURT ORDERS

26. I therefore make the following orders;
    
    1. The Interim Protection Orders (IPO) of 15^th November 2021 are made permanent and applies for a period of 12 months commencing on the date of service of the order on the Defendant and expiring at the end of that period unless renewed, revoked or varied.
       
    2. The Permanent Protection Order does not stop the Complainant, Defendant and their respective family members from;
       
       1. meeting together for purposes of mediation and counselling; and
          
       2. for purposes of the Defendant visiting and seeing his son Ryan.
          

Lawyer for the Complainant: Complainant in Person
Lawyer for the Defendant: Defendant in Person

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^[1] Section 14 (2) (3) Family Protection Act