Wali v Anderson [2022] PGDC 69; DC8072 (5 May 2022)

DC8072

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS FAMILY JURISDICTION]

IPO No. 315 of 2021
BETWEEN

CHILAKA WALI
First Complainant

AND

FREDA TALAO
Second Complainant

AND

PHILLIP ANDERSON
Defendant

Port Moresby: S Tanei
2022: 5^th of May

FAMILY – Application for Protection Order – Objectives and Underlying Principles of the Family Protection Act of 2013.

FAMILY - Complainant in need of protection – One Act of Domestic Violence Constitutes Domestic Violence - Required Standard of Proof –Balance of probabilities – Pre-requisite for granting of Protection Orders – Act of Domestic Violence – Likelihood of further act of domestic violence – Protection of Family Unit – Best Interest of Children- Ex Parte Interim Protection Order set aside – New Protection Orders issued.

Cases Cited

Sundie v Aturoro [2017] PGDC 1 (12 September 2017)
EM v KA [2020] PGDC 22; DC4078
Miriam Noi –v- Junior Peter Wambena [2022] PGDC 23; DC8035

References
NIL

Legislation

Family Protection Act 2013

Counsel
The First Complainant In Person
The Second Complainant – No Appearance
The Defendant in Person

RULING

5^th May 2022

S Tanei: The Complainant filed an Application for Protection Orders in October 2021.

2. The application was heard ex parte on 13^th December 2021 and Interim Protection Orders were granted to the Complainant on 13^th December 2021.
   
3. It is the Complainants intention to make the Interim Protection Orders of 13^th December 2021 Permanent.
4. This is my ruling on whether the Interim Protection Orders of 13^th December 2021 should be made permanent.
   

FACTS:

5. The Complainant and the Defendant are in a de facto relationship from which they have two children.
   
6. The Complainant alleges that she is subject to Domestic Violence by the Defendant.
   
7. The Defendant denies the Complainant’s allegations and says that the Interim Protection Orders should not be made permanent.
   

ISSUES:

8. The Court is faced with the issue of whether it should make the the Interim Protection Order of 13^th December 2021 permanent.
   

THE LAW

9. The Complainant seeks Family Protection Orders under Sections 7 and 16 of the Family Protection Act 2013.
   
10. Section 7 of the Family Protection Act 2013 provides that;
    

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.

11. Section 16 of the Family Protection Act 2013 provides that;
    

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. Section 5 of the Family Protection Act 2013 lists the type of actions that constitute domestic violence. It provides that;
    

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

(e) 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

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

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

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

(a) following the person; or

(b) watching the person; or

(e) 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.

13. In the cases of Sundie –v- Aturoro [2017] PGDC 1, EM v KA [2022] PDGC 22; DC4078 and Noi –v- Wambena [2022] PGDC 23; DC8035, the Courts held that the intent of the Family Protect Act 2013 is to protect members of a family or people in a family setting from any form of domestic violence.
    
14. The Family Protection Act also aims to get family members who were involved in Domestic Violence to learn from their mistakes and become better members of the family and society.
    

EVIDENCE

15. The matter went to trial where the parties tendered Affidavits.
    
16. Only the First Complainant attended at trial and tendered her own Affidavit while the Defendant tendered his Affidavit.
    
    1. Complainant’s Affidavits
    1. Affidavit in Support of Chilaka Wali filed on 13^th December 2022 (Exhibit C1).
       
    2. Defendant’s Affidavits
       1. Affidavit in Response of Eveth Jack filed on 22^nd March 2022 (Exhibit D1)
          

DISCUSSION ON EVIDENCE

17. The Court noted the following in the Complainant’s evidence.
    
18. First, the Complainant and the Defendant are in a de facto relationship and they have two children out of that relationship.
    
19. She stated the Defendant is a drunkard and is unemployed and never spends time to look after their children.
    
20. She also stated that she was assaulted after Independence day and on 6^th December 2021. He also threatened her and used abusive language through his phone.
    
21. On the other hand, The Defendant denies all allegations of violence, threats, abuse and intimidation claimed by the Complainant. However, he says that there were times when he and the Complainant got into arguments.
    
22. He says that the Complainants twisted the facts to suit their own case.
    
23. In his evidence, he states how he spends time to look after his children when the First Complainant is at work.
    
24. He also denied that he drove the second Defendant’s vehicle without permission.

FINDING OF FACTS

25. The evidence in this case will be dealt with on the balance of probabilities.
    
26. I find that the parties are in a family or domestic setting. That is, they are in a de facto relationship since 2012 and they have two young children out of this relationship, one born in 2017 and one born in 2021.
    
27. I find that the Second Complainant is the First Complainant’s mother and the First Complainant and the Defendant and their children live with her.
    
28. In relation to driving without permission and damage to the Second Complainant’s vehicle, I find that the Defendant drove with the Second Defendant’s permission although I do not find any evidence of the measure of damage done to the vehicle.
    
29. From the evidence, I do not find any form of physical assault on the Complainants. If there is any, there is no evidence of such.
    
30. However, it is my finding that the messages sent by the Defendant to the First Complainant’s mobile phone amount to insults and threats. These are actions mentioned in Section 5 of the Family Protection Act 2013.
    
31. I also find that the Defendant was drunk at that time and his behaviour at the Second Defendant’s residence on 6^th December 2021 amount to Domestic Violence against the First Defendant although it doesn’t amount to Domestic Violence against the Second Defendant.
    
32. I further find that there is no act of domestic violence against the Second Defendant.
    

APPLICATION OF THE LAW TO THE FACTS

33. Since I found that the Defendant has committed an act of domestic violence on the First Defendant, I will apply section 16 of the Family Protection Act 2013.
    
34. From the evidence, it is my view that there is a real likelihood that the Defendant and the First Complainant would argue again and that they would use offensive language in their communication and the only means to restrain such an act would be to issue a protection order.
    
35. I now turn to the purpose of the Family Protection Act 2013. As mentioned earlier, the legislative intent of the Family Protection Act is to protect members of a family from abuse, intimidation and violence. It also serves the greater purpose of uniting and keeping the family unit intact.
    
36. The Family Protection Act takes into account all factors that constitute a family. And it is my view that while all members of the family are important, in a case where it involves children, the best interest of the children must be taken into account.
    
37. The children must grow up in an environment where there is the love of a father and a mother and the presence of both. They may grow up with relatives but it is in the presence and love of their biological parents that they will grow up to be better members of the society. After all, children are products of love and not hate.
    
38. A father has a duty to love his children, care for them, provide for them and teach them to be strong and caring while the mother has equally the same duty.
    
39. While the Court has the power to issue restraining orders, it must do so with caution and it must do so with an intent to protect the family unit and keep it from falling apart.
    
40. The terms of the Interim Protection Orders of 13^th December 2021 restrain the Defendant from seeing his children or coming close to them.
    
41. It is my view that restraining the Defendant from seeing his children will only tear apart the family unit and not serve the purpose of the Family Protection Act.
    
42. With that in mind, I will set aside the ex parte Interim Protection Orders of 13^th December 2021 and replace them with new protection orders in terms that will be listed hereunder.
    

CONCLUSION

43. In conclusion, I am satisfied that the First Complainant was subject to Domestic Violence and that there is a real likelihood of being subject to future violence by the Defendant.
44. However, given the facts surrounding this case and the underlying principles of the Family Protection Act 2013, I will set aside the ex parte Interim Protection Orders of 13^th December 2021 and replace them with new Protection Orders which will be listed hereunder.
    

COURT ORDERS

45. The following are the formal orders of the Court;
    
    1. The Defendant is restrained from drinking any form of alcohol or taking any form of illegal drugs unless prescribed by a medical practitioner.
       
    2. The Defendant must be of good behavior and must maintain peace at all times towards the First Complainant, Chilaka Wali, their children and the Second Complainant.
       
    100. The Defendant must not commit any act of domestic violence including any physical violence or any threat of violence directly or indirectly on the First Complainant, Chilaka Wali in NCD or anywhere else in Papua New Guinea.
         
    4. The Defendant is restrained and prohibited from harassing, intimidating and or using abusive and offensive words, behaviours and gestures on the First Complainant, Chilaka Wali and their children.
       
    5. The Defendant is restrained from sending any offensive or insulting messages to the Complainants through the use of the mobile phone or any other social network including but not limited to Facebook, Facebook Messenger, WhatsApp, Twitter, Telegram and so forth.
       
    6. The Defendant is restrained from damaging any property belong to the Complainants.
       
    7. In the event the Defendant breaches any of these orders, he shall be arrested, charged, brought to court and be dealt with according to law and the Provisions of the Family Protection Act 2013.
       
    8. This protection Order shall be in force for two (2) years commencing this instant.

Lawyer for the Complainants: Complainant in Person

Lawyer for the Defendant: Defendant in Person