Rooker v Kome [2022] PGDC 86; DC9023 (7 October 2022)

DC 9023

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS FAMILY JURISDICTION]

IPO No. 243 of 2021
BETWEEN

WAYNE ROOKER
Complainant

AND

SHEILA KOME
Defendant

Port Moresby: Mr. Seth Tanei (Magistrate)

2022: 7^th of October
      

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

FAMILY – Complainant seeks Protection Orders –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- Custody – No Jurisdiction - 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
Police v Opa [2021] PGDC 183; DC7073
Police v Wairap [2021] PGDC 171; DC7932

References
NIL

Legislation

Family Protection Act 2013
Lukautim Pikinini Act 2015

Counsel

Zazeng, C., Mr – For the Complainant

Kumura, J., Mr – For the Defendant

RULING

7^th October 2022

S Tanei: This matter was initiated by way of an Information dated and laid on 24^th August 2021.

2. The Complainant moved an ex parte application for Interim Protection Orders and was granted the same on 24^th August 2021.
   
3. The Interim Protection Orders were made in favour of the Complainant and his daughter Shelby Rooker.
   
4. The Complainant seeks to make the Interim Protection Orders Permanent.
   
5. The following is my ruling.
   

FACTS:

6. The Complainant and the Defendant were in a de facto relationship. They have a daughter out of that relationship.
   
7. The Complainant is a New Zealand male citizen while the Defendant is a Papua New Guinean female.
   
8. It is the Complainant’s claim that both him and his daughter were subject to Domestic Violence by the Defendant and as such they seek Permanent Protection Orders against the Defendant.
   

ISSUES:

9. The parties filed a couple of Motions. However, the Court refused to deal with those motions as I was of the view that the outcomes would affect eventual ruling of the Court.
   
10. The issues from the motions as well as those from the evidence and submission draw the following issues;
    
    1. Whether the Interim Protection Orders of 24^th August 2021 should be made permanent?
    2. If so, whether the Interim Protection Orders should extend to the Complainant’s family?
    100. Whether the Defendant should be punished for breaching the Interim Protection Orders of 24^th August 2021?
    4. Whether this Court has the power to deal with matters involving child custody.
       

THE LAW

11. The Law in relation to Family Protection Orders is covered under Sections 7 and 16 of the Family Protection Act 2013.
    
12. 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.

13. 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.

14. Section 5 of the Family Protection Act 2013 defines 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.

15. In the leading cases of Sundie –v- Aturoro [2017] PGDC 1 as well as the case of 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. It also creates the offence of domestic violence and it aims to preserve and promote harmonious family relationships.
    
16. 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

17. The matter went to trial where the parties tendered Affidavits.
    
18. During trial, both parties tendered Affidavits;
    
    1. Complainant’s Affidavits
       
    1. Sworn Statement and Affidavit of Wayne Rooker sworn on 24^th August 2021 and filed on 24^th August 2021 (Exhibit C1).
    2. Affidavit of Wayne Rooker sworn on 24^th November and filed on 25^th November 2021 (Exhibit C2)
    3. Affidavit of Wayne Rooker sworn on 27^th July 2022 and filed on 1^st August 2022 (Exhibit C3)
    4. Affidavit in Support of Cross Motion of Wayne Rooker sworn on 27^th July 2022 and filed on 1^st August 2022 (Exhibit C4)
       
    2. Defendant’s Affidavits
       
       1. Affidavit in Response of Shiela Kome sworn on 19^th October 2021 (Exhibit D1)
       2. Affidavit of Jennie Richard Kome sworn on 19^th October 2021 (Exhibit D2)
       3. Affidavit of Sheila Kome filed on 15^th December 2021 (Exhibit D3)
       4. Affidavit of Sheila Kome filed on 12^th July 2022 (Exhibit D4)
       5. Affidavit of Sheila Kome filed on 8^th August 2022 (Exhibit D5)
       6. Affidavit of John Kumura filed on 8^th August 2022 (Exhibit D6)
          

DISCUSSION ON EVIDENCE

19. The Court noted the following in the Complainant’s evidence.
    
20. The Complainant states that he was subject to violence, abuse and intimidation by the Defendant.
    
21. He also states that the Defendant breached the Interim Protection Orders of 24^th August 2021 by communicating with his mother and his ex-partner.
    
22. On the other hand, the Defendant states in her Affidavits that it is the Complainant who is violent and abusive and not the other way around.
    

FINDING OF FACTS

23. From all the evidence that was presented to the Court, the following facts are undisputed.
    
24. The Complainant is a male New Zealand National while the Defendant is a Papua New Guinean adult female.
    
25. They had a relationship on or around 2020 and the Defendant had a female child by the name of Shelby Rooker on 9^th May 2021.
    
26. The infant child Shelby Rooker is in the custody of the Complainant.
    
27. The parties are no longer in a relationship and have moved on.
    
28. The following facts are disputed;
    
29. Firstly, that the Defendant was violent and abusive towards the Defendant and the child.
    
30. Also, the Defendant breached the terms of the Interim Protection Orders when she communicated with the Complainant’s mother and ex-partner.
    

SUBMISSIONS BY PARTIES

31. Mr. Zazeng of Counsel for the Complainant submitted that the Defendant subjected him to domestic violence in the form of assault and psychological abuse. He submitted that the Defendant has breached the Interim Protection Orders by communicating with the Complainant’s mother and ex-partner.
    
32. He also submitted that the Court does not have the power to deal with custody matters but has the power to preserve the status quo.
    
33. Mr. Kumura of Counsel for the Defendant submitted that both parties are guilty of domestic violence. He submitted that the evidence pointed out that both parties at some point exerted domestic violence on each other.
    
34. He submitted that that the Defendant has not breached the Interim Protection Orders.
    
35. He also submitted that the real issue in this case is the issue of custody of the child Shelby Kome.
    

APPLICATION OF THE LAW TO THE FACTS

1. Whether the Interim Protection orders of 25^th August 2021 should be made Permanent.
   

36. Section 16 of the Family Protection Act 2013 provides that a Family Protection order or a Permanent Protection Order can be made by the Court if the Court is satisfied that the defendant has committed an act of domestic violence and the Defendant is likely to commit an act of domestic violence.
    
37. I find from the evidence that the parties both exerted some form of domestic violence against each other. There was assault, intimidation, threats and violence both physical and verbal exerted by both parties on each other on various occasions.
    
38. It is my view that if the Court does not intervene here, the parties will continue to use violence against each other.
    
39. I am minded to make the Interim Protection Orders Permanent.
    
40. However, there is a twist to this case in that the Interim Protection Orders of 24^th August 2021 names their infant child Shelby Rooker as a person that needed to be protected against the Defendant.
    
41. This leads me to the next issue.
    
    2. Whether the Interim Protection Orders of 24^th August 2021 should extend to the Complainant’s family including the child Shelby Rooker.
       
42. In dealing with this issue the Court must be satisfied that the Complainant’s relatives or family members including the Infant child Shelby Rooker were subjected to Domestic Violence by the Defendant before it makes a Permanent Protection Order.
    
43. In this case, it is my view that the Complainant’s family includes his mother and other extended Family.
    
44. I agree with Mr. Zazeng of Counsel for the Complainant that Interim Protection Orders are given to preserve the status quo.
    
45. In matters involving family members, the status quo is the relationship between the parties. In this case there is no longer any relationship and no longer anything to preserve. The only concern that remains for the parties is their child.
    
46. I also do not find any evidence of domestic violence against the Complainant’s family members by the Defendant. The evidence provided by the Complainant is hearsay and is based on assumptions by the Complainant. There is no direct evidence by those whom the Complainant seeks to extend the Protection Orders to.
    
47. I therefore cannot extend the Protection Orders to the Complainant’s mother and his ex-partner.
    
48. I now move on to deal with domestic violence against the child Shelby Rooker.
    
49. Mr. Zazeng submitted that on various instances the child was subject to domestic violence. However, from my reading of the evidence, there is no evidence of domestic violence on the child.
    
50. There is nothing from the evidence to suggest that the Defendant committed an act of domestic violence against the child Shelby Rooker.
    
51. I believe the Defendants account of the events relating to the allegation that she exerted domestic violence on the child Shelby Rooker. Those are contained in her Affidavit in Reply to the Complainant’s Affidavit filed on 25^th November 2021 (Exhibit D3).
    
52. After a careful consideration of the terms of the Interim Protection Order, I am of the view that although the child Shelby Rooker was named as a person to be protected under the Iterim Protection Order of 24^th August 2021, there is no specific Order against the Defendant concerning the child Shelby Rooker.
    
53. 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 from another family member. It also serves the greater purpose of uniting and keeping the family unit intact.
    
54. However, in this case, parties have moved on and the only thing in common between the parties is the child Shelby Rooker.
    
55. 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.
    
56. While I am only restricted to the provisions of the Family Protection Act 2013 when dealing with this case, I am of the view that the Court’s Orders and views must not breach other legislation.
    
57. This case involves an infant child who is caught in between the actions of her mother and father.
    
58. Section 7 of the Lukautim Pikinini Act 2015 provides that a child has the right to live with his or her parents unless it is in his or her best interests to separate him or her from his or her biological parents.
    
59. Although the terms of the Interim Protection Orders of 24^th August 2021 do not specifically restrain the Defendant from seeing her child or coming close to her, the mere fact that she is named as a person that needed protection from the Defendant prohibits the Defendant from coming close to her.
    
60. I am mindful of the fact that the status quo needs to be preserved.
    
61. However, if the status quo preserves something that is unlawful, I am legally bound to remove or vary it.
    
62. It is my view that the presence of the Interim Protection Order breaches the child’s right to live with or have access to its mother.
    
63. Hence, the infant child Shelby Rooker and the Complainant’s family are not in need of Protection from Domestic Violence from the Complainant.
    
64. I will therefore vary the Interim Protection Orders and issue new Protection Orders accordingly.
    
    100. Whether the Defendant should be punished for breaching the Interim Protection Orders of 24^th August 2021?
         
65. The Complainant filed an Application on 21^st August 2022 asking the Court to find that the Defendant breached Condition 2(b) of the Interim Protection Orders of 24^th August 2021 and fine her K 10, 000 or imprison her pursuant to section 20 (1) of the Family Protection Act 2013.
    
66. Condition 2 (b) of the Interim Protection Orders of 24^th August 2021 prevents the Defendant from communicating with the Complainant or his relatives with an intent to do harm, threaten, intimidate or harass the Complainant.
    
67. It is my view that this application is misconceived.
    
68. This is because of the fact that Section 20 (1) of the Family Protection Act 2013 makes the act of breaching a protection order or an Interim Protection Order an Offence under the law.
    
69. It provides that;
    

20. OFFENCE TO BREACH FAMILY PROTECTION ORDER.

(1) A person who breaches a condition or conditions of a family protection order or an interim protection order is guilty of an offence.

Penalty: A fine not exceeding K 10,000.00 or imprisonment for a term not exceeding three years or both.

70. It is my view that section 20 (1) of the Family Protection Act does not give the Complainant any right to file an application under this section.
    
71. From practice, a legislation that creates an offence that that carries a fine or imprisonment term carries a criminal burden of proof. This means that the evidence must be properly tried and decided beyond reasonable doubt.
    
72. As such, the most appropriate process would be to lay a complaint with the Police and allow the Criminal process to take its course.
    
73. I am therefore of the view that this application is misconceived and the Court sitting as it is does not have the jurisdiction to deal with the Offence of Breaching a Protection Order or Interim Protection Order.
    
    4. Whether this Court has the power to deal with matters involving child custody.
       
74. Both counsels have agreed and made submissions that the Court sitting as it is does not have the power to deal with Child Custody matters.
    
75. I uphold these submissions as this Court is a creature of statute and its jurisdiction is limited to the provisions of the Legislation that the proceeding is brought under.
    
76. I also note that being named as a person needing protection from domestic violence from the Defendant, the infant child Shelby Rooker is being kept away from her biological mother.
    
77. I agree with Mr. Kumura’s submission that the existence of this Interim Protection Order effectively gives custody of the child to the Complainant.
    
78. I note from the evidence that the custody of the child Shelby Rooker is still in contention at the Courts. As such, it would not be legally proper for the Court to make a permanent protection Order under the terms of the Interim Protection Order.
    

CONCLUSION

79. In conclusion, it is my finding that both parties have exerted some form of domestic violence on each other.
    
80. However, the Complainant failed to show that the Defendant committed Domestic Violence on their daughter Shelby Rooker and his mother and ex-partner.
    
81. I will therefore vary the terms of the Interim Protection Orders and issue a new Family Protection Orders.
    

COURT ORDERS

82. The following are the formal orders of the Court;
    
    1. The Interim Protection Orders issued on 24^th August 2021 are varied and a new Family Protection Order is issued in the following terms;
       
       1. Both parties shall bee of good behavior and must maintain peace at all times towards each other.
          
       2. Both parties shall not commit any act of domestic violence including any physical violence or any threat of violence directly or indirectly on each other in NCD or anywhere else in Papua New Guinea.
          
       100. Both parties are restrained and prohibited from harassing, intimidating and or using abusive and offensive words, behaviours and gestures against each other.
            
       4. Both parties are restrained from sending any offensive or insulting messages to each other 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.
          
       5. Both parties are restrained from damaging any property belong each other.
          
       6. In the event any of the parties breaches any of these orders, he or she shall be arrested, charged, brought before a Court of Competent Jurisdiction to be dealt with according to law and the Provisions of the Family Protection Act 2013.
          
       7. This protection Order shall be in force for two (2) years commencing this instant.
          
    2. Parties shall meet their own costs.
       

Lawyer for the Complainants: Lakakit & Associates Lawyers

Lawyer for the Defendant: Kumura Lawyers