Rumet v Florian [2022] PGDC 51; DC8054 (28 March 2022)

DC8054

Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS FAMILY PROTECTION COURT

IPO NO 07 OF 2022

BETWEEN:

ANTOINETTE RUMET
[Applicant]

AND:

LUVI FLORIAN
[Defendants]

Waigani: Paul Puri Nii

28th March 2022

PROTECTION COURT PROCEEDINGS: Complaint-Statement-Assault and violence. Sections 5, 6, 7 & 16 of the Family Protection Act-Complainant’s affidavit,

PRACTISE AND PROCEDURE: assessment of Arguments-Fair relief in the Circumstance-Evidence of assault-defendant admits-custody of children-want of jurisdiction-options for Port Moresby family court.

PNG Cases cited:

NIL

Overseas cases cited:

NIL

REFERENCE

Legislation
Family Protection Act
District Court Act 1963, Chapter 40

Counsel
Applicant: Antoinette Rumet For the Applicant
Defendant Luvi Florian For the Defendant

RULING

28^th March 2022

INTRODUCTION

NII, P. Paul Magistrate. Decisions on the application for Protection order under Section 16 of the Family Protection Act after opinions from parties are measured. Applicant argues defendant assaults her while defendant admits he assaults her occasionally and compensates her but took issue on the custody of the parties’ children which I shall deliberate in the ruling.

APPLICATION

1. The application was filed under Section 16 of the Family Protection Act. The essentials of the relief sought are presenting below:
   

“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

(c) 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”.

BRIEF PARTICULARS OF THE APPLICATION

2. The Applicant in Application for Protection Order was in a de de facto relationship (a relationship in which partners live together as couples but are not legally married, ie, in the PNG context it is either by way of custom, church or statute) with the Defendant. Applicant says she was in that relationship for 16 years and has 2 children with the defendant. She says her relationship with the defendant started in 2005 until 19^th May 2021 she decided to stay away from her de fecto partner for the succeeding explanations:
   
   1. On 10^th September 2011, the defendant was having a relationship with her 18 years old niece which she later found out;
      
   2. On 18^th September 2021, Applicant was informed by her small brother that Defendant was drunk and came home with a different woman;
      
   100. On 24^th August 2013 when the Applicant was pregnant with the defendant’s second child, the defendant while being under the influence of liquor chased the applicant with a bush knife;
        
   4. Applicant says between September 2013 - December 2014, defendant would drink and sometimes physically abuse her;
      
   5. On 5^th January 2022, applicant received a phone call from her sons that defendant was not looking after them well;
      
   6. On a Friday of February 2018, defendant came home drunk and demanded the Applicant’s car key but she refused and hence defendant picked up a bush knife and ran towards the applicant but applicant jumped out of the back door and ran for her safety;
      
   7. In November 2012, Applicant came to her knowledge that defendant was having an affair with a Ms Salote Vagi and they had a child in April 2011;
      
   8. In June 2012, Defendant had forcefully entered her rented property at Yumi Yet real estate and removed her belongings;
      
   9. On Saturday 25^th February 2008, the defendant was drunk at their McGregor Police barracks resident and uttering abusive words towards the Applicant and her daughter Lydia Symet;
      
   10. On 16^th May 2006, the defendant physically abused the applicant at Bomana Police college officers mess.
       
   11. Applicant says she had already moved on with her life with a new boyfriend named Felix Tigom, a policeman who was the defendant’s driver.
       
   50. Based on the above forgoing, the Applicant has filed this application for the court to grant a protection order against her and her children.
       

ISSUE

3. The question for my judicial consideration is should the IPO be made permanent for the Applicant against the defendant.
   

THE LAWS APPLICABLE FOR INTERIM PROTECTION ORDER AND PERMANENT ORDERS

“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.”

4. On the 7^th February 2022, the Waigani Committal court sitting as Family court had issued interim protection orders against the defendant. The orders were issued ex partie (after hearing only the applicant’s side of the story). The matter was subsequently adjourned for service and substantive hearing. On 23^rd March 2022, the court heard the substantive hearing and thus made its ruling hereunder.
   

EVIDENCE

5. The Complainant’s evidence is contained in her affidavit in support filed together with the substantive application on the 7^th February 2022 and the Defendant’s evidence is confined in his affidavit in response filed on 7^th March 2022.
   

HEARING

6. Applicant through her affidavit has indicated that she was abused by her defecto partner for some time and now decided that she should stay on her own. She has filed this protection order for her own and her children’s behalf citing reasons that the defendant is an abusive partner who usually threatens, assaults and abuses her on frequent occasions.
   
7. Applicant in her affidavit has stated instances where her children were neglected by the defendant and also she has described the defendant as a person of having many partners. Applicant also says defendant was in a relationship with his niece and moreover a child from another woman.
   
8. Defendant through his Affidavit in response did not object to the abuses and threats as alleged by the Applicant but says after his alleged actions he customarily goes and takes responsibility for his actions by conveying his confessions and reconciling human gestures. Defendant however says he does not trust the Applicant that she would look after their children since the applicant’s new boyfriend; defendant’s former driver has adult children which they may look after.
   

RULING

9. This is an application for Protection order filed by the Applicant and on 7^th February 2022, IPO orders under Section 12 of the Family Protection Act were issued against the defendant and subsequently inter-party hearing was heard on 23^rd March 2022.
   
10. Firstly, I have judiciously assessed the arguments between the parties and dependable to Section 5(1) of the Family Protection Act, there is evidence of assaults of physical injury and psychological abuses, harassment or intimidation occasioned on the Applicant by the defendant. There is evidence of more than one abuse and intimidations as alleged by the Applicant. Therefore, I will make an order preventing the abuse and assault from happening between the parties.
    
11. Secondly, I have also noted that there is evidence of multiple partners by both the defendant and the Applicant. Applicant admitted that she had moved on with Felix Tigom after she left the defendant while Applicant’s affidavit demonstrates the defendant's other girlfriends and their meetings. Therefore, I will also make an order that will prevent all the parties’ new partners from abusing and assaulting each other in any manner or whatever.
    
12. Lastly, the children are with the defendant and the Applicant has asked the court that she wants her children back since the defendant may not look after them properly. For this relief, I will refer parties to the appropriate court to consider this issue as I do not have the jurisdiction.
    

CONCLUSION

13. Protection orders are made accordingly in the circumstances preventing all parties from abusing and assaulting each other. The IPO of 7^th February 2022 is varied into the subsequent orders:
    

ORDERS

14. My Orders:
    
    1. Permanent Protection Order is issued under Section 16 of the Family Protection Act.
       
    2. The Defendant and his agents/servant including his new girl friends are PROHIBITED and RESTRAINED from committing any form of domestic violence such as physical violence or verbal abuse, threatening words or behaviour or in a manner that is likely to cause harm or injuries disturbing the Complainant and her new boy friends at anytime and anywhere.
       
    100. The Defendant and his agents/servant including his new girl friends are PROHIBITED and RESTRAINED from communicating with the Complainant and her family members and her new boyfriends by using any means of communication via mobile phone calls, text messages, Facebook, WhatsApp and email or his agents towards the applicant, her family and her new boyfriend at any time anywhere.
         
    4. The Complainant and her agents/servant including her new boy friends are PROHIBITED and RESTRAINED from committing any form of domestic violence such as physical violence or verbal abuse, threatening words or behaviour or in a manner that is likely to cause harm or injuries disturbing the Defendant and his new girl friends at anytime and anywhere.
       
    5. The Complainant and her agents/servant including her new boy friends are PROHIBITED and RESTRAINED from communicating with the Defendant and his family members and his new girlfriend by using any means of communication via mobile phone calls, text messages, Facebook, watsap and email or her agents towards the defendant, his family and his new girlfriend at any time anywhere.
       
    6. The Defendant and the Complainant and their new partners, agents and families are PROHIBITED and RESTRAINED from disturbing each other’s daily life by up keeping and maintaining peace at all times.
       
    7. All parties including the defendant (his relatives, associates and new girlfriends) and Complainant (her relatives, associates and new boyfriends) are to comply with the preceding orders, however, in the event that one party breaches any terms of these orders, the breaching party shall be brought before the court to be dealt with according to law.
       
    8. I will not make any orders in respect to the children’s custody and possessions as to which party the children should stay with because I neither have the authority nor the jurisdiction to administer such issues. Moreover, I also do not have the authority nor the jurisdiction to make any orders in respect to child maintenance, dissolution of de facto relationships and separations. Thus, such issues are to be addressed by the Port Moresby family court since it has the jurisdiction to deal with it through a new proceeding.
       
    9. Children are innocent and thus they deserve the love and care from both parents. Therefore, the court orders that the parent’s actions in trying to deal with their love square (parties and their new partners) and the allegations of assault must not infringe the rights and welfare of their children. Parents should isolate their children from the scene.
       

Antoinette Rumet Applicant in person
Luvi Florian Defendant in person