Madaha v Alu [2022] PGDC 24; DC8034 (7 March 2022)

DC8034

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS FAMILY JURISDICTION]

IPO NO 119 OF 2021
BETWEEN

GEITA MADAHA
Complainant

AND

ALEX ALU
Defendant

Waigani: O Ore Magistrate

2022: 21^st February & 07^th March
      

CIVIL – Application for Protection Order – Objectives and Underlying Principles of the Family Protection Act 2013 – Sections 7 & 16 of the Family Protection Act 2013

CIVIL – Hearing Conducted Ex Parte – Failure by Defendant to attend hearing - Complainant in need of protection – Domestic violence committed against the complainant and children 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 – No Appearance

DECISION

07^th March 2022

1. O Ore, Magistrate: The Complainant in this matter, Geita Madaha is asking the Court to make Interim Protection Orders granted on the 06^th of December 2021 made permanent.
   
2. During the course of this proceeding, there was no appearance by the Defendant even though he was served with a copy of the Interim Protection Orders. In his absence, the Court issued directions for both parties to file and serve their Affidavits.
   
3. The Complainant advised the Court that the Defendant had left for Lihir where he worked and she could not serve her Affidavits in Support on him. I granted her leave to have them served by email and file an Affidavit of service. She has done that and the matter came before me for hearing.
   
4. At hearing, the Complainant appeared by herself. The Defendant on the other hand did not appear, nor did he file his Affidavits in response. The Court was not going to waste time if the Defendant showed no interest in the matter. I proceeded with hearing and this is now my decision.
   

FACTS

5. The Complainant (Geita) and the Defendant (Alex) began their relations sometime in 2011. They initially lived with Alex’s parent’s rental home at Gordons 5.
   
6. From their relationship, they have 2 children, both girls. Their first child was born in September 2012 and the second child was born about 2 years later in July 2014.
   
7. The initial stage of their relationship was fine. They were living like any ordinary couple would without any tussles. It was only after their first child was born that Alex’s behaviour started to change. He became more violent and abusive towards Geita.
   
8. From that time onwards, Geita was subjected to physical, verbal and sexual abuse by the Defendant. She was beat up by Alex and even threatened to be killed on many occasions. His threats were issued verbally and also through phone texts.
   
9. Geita in fear of her life filed this proceeding.
   

ISSUE

10. Whether the Interim Protection Orders granted on the 06^th December 2021 should be made permanent?
    

RELEVANT LAW

11. The Complainant is applying to have the Interim Protection Orders made permanent. Her application is based on Section 7 and 16 of the Family Protection Act 2014. 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. After an application is made for family protection orders, there are two requirements that must be met before the Court can make family protection orders. Both requirements are provided for under Section 16 (1) (a) (b) of the FPA.
    
13. Firstly, it must be shown on reasonable grounds that the Defendant has committed an act of domestic violence against the Defendant and secondly, that the Defendant is likely to commit an act of domestic violence against the Complainant in the future. Evidence in this regard has to be weighed on the balance of probabilities (see case of Sundie v Aturoro [2017] PGDC 1 (12 September 2017).
    

EVIDENCE

14. During hearing, Geita relied on her undated sworn statement and her Affidavits in support filed 13^th December 2021 and 01^st of February 2022 respectively. Her undated sworn statement was accepted into evidence after there was no objection from the Defendant who was not present at that time.
    
15. The Defendant did not file any Affidavits or statements in reply even though served with copies of Geita’s Affidavits. He was also not present during the course of the proceeding, especially when the matter came before me for hearing.
    

ANALYSIS OF EVIDENCE

16. The evidence provided by Geita is unopposed. I find from her Affidavits that she has been subjected to domestic violence throughout her marriage life. She states in her Affidavits that the violence started after the birth of their first child in 2012.
    
17. She has experienced beatings, verbal abuse, emotional abuse as well as sexual abuse from the Defendant. Alex even threatened to kill her by telling her that he was not afraid of her family and will kill her like a pig for her family to have pity over. He even threatened to kill her whilst she was sleeping and let her drown in her own blood.
    
18. She states in her Affidavit that his threatening messages to kill her were also sent over the phone through text. She has attached copies of the text message to her Affidavit. In his text messages, he constantly repeats that he will kill her. The threatening text messages to kill her are sent when Geita does not answer her phone or replies quickly to his text messages.
    
19. Geita’s Affidavits also show that the Defendant has been abusive to their two daughters. He hits them for unknown reasons.
    
20. Geita’s Affidavit of 13^th December 2021 shows that the Defendant has no respect for the Court. The Defendant upon receiving the IPO, had it returned to the Complainant and burnt his clothes as well as hers. He then left with his father and later on flew back to his work place at Lihir.
    

DISCUSSION OF LAW AND EVIDENCE

21. The evidence provided Geita is uncontested. It shows what type of person the Defendant is. The Defendant is an impatient and abusive husband to his wife and abusive father to his two children.
    
22. I find the Defendant to be a very abusive person. His constant abuses towards Geita and their children have led them to live a fearful life. No one should live this type of life. Everyone is entitled to live freely without fear.
    
23. The Defendant’s text messages and threats to kill Geita is a serious matter. One can only imagine what might happen if left to continue. He might take matters into his own hands. There are lot of cases in Papua New Guinea where the victim is seriously injured or losses his/her life.
    
24. Having considered all the evidence before me, I find that acts of domestic violence have been committed against Geita and her 2 children. I further find that based on reasonable grounds, there is a high probability that the acts of domestic violence will continue to happen in the future if nothing is done about it.
    
25. I therefore make the IPO permanent and make the following Family Protection Orders below.
    

COURT ORDERS

26. These are my order orders;
    
    1. A Family Protection Order is made and the Interim Protection Orders (IPO) of 06^th December 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. Any party who refuses to comply with or breaches the Orders of this Court shall immediately be arrested and brought before this Court pursuant to Section 20 (1) of the Family Protection Act and if found guilty for contempt of Court, shall either be committed to prison in Bomana for no more than 3 years in hard labour or pay a Court fine of no more than K10,000.00
       

Lawyer for the Complainant: Complainant in Person
Lawyer for the Defendant: No Appearance