RKS v HL [2014] WSDC 6 (30 May 2014)

DISTRICT COURT OF SAMOA
R.K.S v H.L [2014] WSDC 6

Case name:	R.K.S v H.L
Citation:	[2014] WSDC 6
Decision date:	30 May 2014
Parties:	R.K.S v H.L
Hearing date(s):	21 May 2014
File number(s):
Jurisdiction:	Family
Place of delivery:	District Court, Mulinuu
Judge(s):	Judge Tafaoimalo Leilani Tuala-Warren
On appeal from:
Order:	On the whole of the evidence, I am satisfied on a balance of probabilities that H.L has committed acts of domestic violence on R.K.S during their marriage. The Interim Protection Order which I granted on 30 April 2014 will now be made a Protection Order which is final until it is set aside. For R.K.S and H.L the protection order is to provide a safe setting in which the parties can work together as parents of four children. Their relationship will be ongoing as parents, but this Order will help set the boundaries as they try to work through their re-shaped relationship.
Representation:	Mareva Betham-Annandale for the Applicant Semi Leung Wai for the Respondent
Catchwords:	Interim protection order –domestic violence - Deed of Division of Matrimonial Property – interim restraining order – final restraining order
Words and phrases:
Legislation cited:	Family Safety Act 2013/7(2), 7(4), 5(3), 5(3)(c).
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER
of the Family Safety Act 2013

BETWEEN

R.K.S of Lotopa and Vaivase.
Applicant

A N D

H.L of Moataa and Queensland Australia.
Respondent

Counsel:
M Betham-Annandale for the Applicant
S Leung Wai for the Respondent

Hearing Date : 21 May 2014

Decision: 30 May 2014

DECISION OF DCJ TUALA-WARREN

1. On 30 April 2014 I granted an Interim Protection Order on application of R.K.S against H.L. H.L opposes the Order being made a final Order, hence this hearing.

Background

2. H.L and R.K.S were married on 20 June 1992. They were married for 20 years and had four children. The children are L-A (20 years), S (16 years), C (9 years) and H (7 years). There is no evidence of how long H.L and R.K.S were together before they got married. During the marriage, they lived in New Zealand for some years, Australia and finally Samoa since 2007. H.L and R.K.S divorced on 8 April 2013 on the basis of irretrievable differences. The two older children L-A and C now live in Australia and the two younger children live with their father in Australia. H.L and the two children moved to Australia in June 2013 after the divorce was granted in April 2013. R.K.S continued to live in Samoa.
3. H.L and R.K.S signed a Deed of Division of Matrimonial Property dated 27 March 2013. The Court does not have a copy of the Deed. It appears from the evidence that R.K.S runs a family business called Advanced Security and Protection Services Ltd at Fugalei. There does appear to be ongoing issues in relation to the Deed. H.L returned to Samoa sometime in April 2014 to sort out issues pertaining to the Deed.
4. I granted an Interim Protection Order on 30 April 2014. The return date of 20 May 2014 was noted on the Interim Protection Order. The return date calls upon H.L to show cause on the return date as to why a Protection Order should not be issued. H.L appeared on the return date and opposed the issuing of a protection order. I set the matter for hearing on 21 May 2014.

Process

5. Parliament intended for the Respondent to have a minimum of 10 days to consider the application by the Applicant. If on the return date, the Respondent appears and opposes the Order and has filed either a Notice of Defence or a Notice of Intention to Appear and a supporting affidavit, the parties can expect the matter to be heard immediately.
6. However in the event that the Respondent appears on the return date and has not filed a Notice of Defence or a Notice of Intention to Appear or a supporting affidavit, he or she will be given 72 hours to do so and the matter will be heard within 7 days from the return date.
7. I appreciate that this may put added pressure on Counsel. However I believe that we should prioritise these matters. From time to time there will be situations that fall outside these guidelines, but by and large the parties should expect to be afforded priority.

The Law

8. The Court will issue an Interim Protection order if it is satisfied that there is sufficient evidence that:

(a) the respondent is committing or has committed an act of domestic violence; and

(b) the complainant is likely to be either physically or sexually assaulted as a result of such domestic violence if a protection order is not issued immediately.(Section 5(2) FSA)

9. The grounds for making an Order final are if the Court after hearing all the evidence regarding an application under this Act finds on a balance of probabilities that the respondent has committed or is committing an act of domestic violence.(Section 7(2) FSA)
10. Clearly the reference to the respondent ‘has committed an act of domestic violence’ deals with acts of domestic violence in the past. The most logical way then to interpret the term ‘is committing’ an act of domestic violence is that it deals with present and future acts of domestic violence. That inevitably involves an assessment of ongoing risk to the Applicant. In the event that the Court is not satisfied on the balance of probabilities of the risk, it is difficult to see how a final Protection Order can be granted.
11. A protection order when issued remains in force until it is set aside. (Section 7(4) FSA).
12. Under section 2 of FSA, ‘domestic violence’ means:
    1. Physical abuse;

ii Sexual abuse;

iii Emotional, verbal and psychological abuse;

iv Intimidation;

v Harassment;

vi Stalking;

7. Any other controlling or abusive behaviour towards a complainant where such conduct harms, or may cause imminent harm to, the safety, health or wellbeing of the complainant.

Preliminary Matters

13. During the hearing, Counsel for the Respondents raised the following preliminary matters:
    • Defective service as the copy of the Order served on the Respondent was not certified; and
    • The application and affidavit in support were not served on the Respondent.
14. I addressed the matters in the following way;
    • Counsel for the Respondent agreed to proceed on the copy that the Respondent had received. In any event, under section 5(3) of FSA where the Court issues an Interim Protection Order, it has to be served on the Respondent. It does not say that it needs to be a certified copy. However as a procedural matter, the original should have been served on the Respondent to avoid any defects in service. It is a procedural matter which the Court is working towards.
    • The application and affidavit should be served on the Respondent under Section 5(3)(c) FSA. It says that once the Court issues an Interim Protection Order, a copy of the Section 4 Application and the record of any evidence considered by the Judge in issuing an interim order should be attached to the Interim Protection Order and served on the Respondent. I concede on this occasion the Registrar did not serve these documents together with the Interim Protection Order. Counsel for the Respondent was served by Counsel for the Applicant one day before the Return Date. Counsel for the Respondent agreed to proceed with the hearing.

The Submissions

15. Counsel for the Respondent raised a legal issue for which I called for submissions. These submissions were filed on 28 May 2014.
16. The issue in essence is what domestic violence evidence can the Court take into account in determining whether to grant a Protection Order which is final.
17. Counsel for the Respondent submits that the Family Safety Act 2013 is a penal statute and does not have retrospective effect. Therefore evidence of what happened prior to the Act coming into force on 5 April 2013 cannot be considered by the Court in making its determination whether to grant a Protection Order which is final. This is because there are no provisions in the Act which provide that any evidence or acts that constitute domestic violence that occurred prior to the coming into force of the Act on 5 April 2013 can be considered.
18. Counsel submits that if we are to hold that acts committed before 5 April 2013 are offences, then it would infringe Article 10(2) of the Constitution which states that no person shall be held guilty of an offence on account of any act or omission which did not constitute an offence at the time when it was committed.
19. Counsel for the Applicant submits that the Court, despite any other law, can under section 19 FSA receive any evidence which the Court considers necessary for it to make a decision, determination or direction for the granting or refusal of a protection order under the provisions of this Act whether the evidence is admissible or not by law. She further submits that the penal provisions of the FSA are only for the breach of a protection order. In any event, she submits that a fair, large and liberal interpretation is required in relation to the FSA to best ensure the attainment of the object of the Act which in the case of the FSA is to provide for greater protection of families and the handling of domestic violence and related matters.
20. I am swayed by the submissions of Counsel for the Applicant as there is no offence of domestic violence under the FSA. It is the breach of a protection order which attracts criminal penalties. This determination is not in relation to a breach or to the guilt or otherwise of the Respondent for domestic violence. In any event, the Court is given wide powers to consider any and all evidence regarding an application for a protection order.
21. The submissions from Counsel for the Respondent, while legitimate in a criminal hearing, is misconceived on this occasion. It would be unsafe for the Court to proceed on the basis that it considers only evidence since 5 April 2013. This is because the Court would not have the historical evidence in order to fully consider and determine the application. The object of the FSA is to provide for the protection of families, amongst other things, and the Court would not be interpreting the Act according to its true intent, meaning and spirit if it limits itself in the way which is suggested by Counsel for the Respondent.

The Hearing

22. At the hearing the Court heard from both parties. Their evidence in relation to whether domestic violence occurred paints a picture of two different relationships, R.K.S’s evidence is that her marriage to H.L was full of violence (except during her pregnancies with their two younger sons).H.L says that the only violence was as a result of R.K.S’s drinking and was always a two way thing.

R.K.S’s Evidence

23. R.K.S says that she has suffered domestic violence from H.L throughout the 20 years of their marriage, and after their divorce, starting in December 1992 up until 30 April 2014 and occurring in three countries, New Zealand, Australia and Samoa.
24. She notes that the incidences of domestic violence have been;

In New Zealand;

(i) December 1992 – A month before the birth of L-, R.K.S was hit by H.L with an open hand. R.K.S sustained a black eye;
(ii) April 1996 – While H.L and R.K.S were living at a rental place in Avondale, H.L pushed R.K.S around and strangled her. R.K.S sustained scratches and bruises. She applied and was granted a Restraining Order against H.L;
(iii) August 1996 – H.L pulled R.K.S’s hair and threw her against the wall. R.K.S’s hair came off in huge chunks. R.K.S and her children moved to her mother’s family in Mangere;

(iv) December 1996 – H.L pushed R.K.S against the wall;

In Australia;

(i) July 1997 – H.L called R.K.S names and slapped her around;

(ii) 1998-2005 – H.L and R.K.S bought a house in Western Australia. H.L slapped R.K.S, yanked her hair, and tore her clothes off in front of the children who were 6 years and 2 years old at the time;

(iii) Sometime in 2000 – H.L yanked R.K.S’s hair, held her by the neck while slapping her and hit her head with an iron while she was holding their 4 year old son. R.K.S has a scar above left eyebrow, her whole face was swollen, her jaw slightly out of place and she was treated at Rockingham Kwinana Hospital;

(iv) Sometime in 2001 – H.L threatened to kill R.K.S. R.K.S moved to a refuge home for 12 weeks;

(v) Sometime in 2001- After R.K.S returned home, H.L ripped off R.K.S’s clothes and broke her sports trophies. Their son S was just about to turn five years old;

(vi) Sometime in 2006 – H.L grabbed R.K.S’s neck to strangle her but in retaliation she picked up a knife and H.L let her go. The Police were called and both parties were warned;

In Samoa;

1. In 2007, the arguments and beatings continued;
2. In 2011 – H.L slapped R.K.S while holding her by the neck;
3. May 2012 –On the day before R.K.S’s birthday, H.L grabbed R.K.S’s jaw and swung her from side to side, grabbed her neck and slapped her. R.K.S’s jaw was bruised and she had a bloody nose. R.K.S and the children moved out of their home to live at her mother’s place;
4. 24 December 2012 – H.L beat R.K.S and eldest son S intervened and held a knife to H.L to make him stop;
5. 13 January 2013 – H.L strangled and beat R.K.S and S. R.K.S sustained a black eye and internal bruising.
6. 2013-2014 –Sometime in 2013 H.L and their two younger sons C and H moved to Australia. While in Australia, he has harassed R.K.S over the telephone with text messages saying “You think I don’t know where your house is at Vaivase?” and “I’ll see you Monday or at your house tomorrow”. H.L also uses text messages to call the R.K.S names like ‘paumuku’ (or whore), and says she doesn’t care about her two sons.

25. On 16 January 2013, an Interim Restraining Order was granted by the Supreme Court of Samoa against H.L until 23 January 2013.R.K.S said that she withdrew her application for a Final Restraining Order when H.L agreed to a divorce and moved to Australia. H.L consented to the divorce petition and the divorce was granted on 8 April 2013. In June 2013, H.L and the two younger children moved to Australia.
26. H.L returned to Samoa sometime in April 2014.R.K.S says that H.L has visited her place of employment twice since he arrived from Australia. She has not been at the office on both occasions.
27. R.K.S says that she is fearful for her life and her personal safety and wants protection from the H.L in the form of a Protection Order because she says that H.L is unpredictable, one minute he is calm and the next he has snapped.
28. R.K.S does say that the domestic violence stopped on 30 April 2014 when the Interim Protection Order was granted. So the Interim Order has not been breached in any way.

H.L’s Evidence

29. H.L who now resides in Brisbane, Queensland, Australia with the parties’ two younger sons puts their matrimonial problems down to R.K.S’s excessive drinking. He concedes that they have argued over the years and alcohol has always been involved. He says that R.K.S drinks too much and that was the reason for all the fighting. He told the Court that on one occasion, R.K.S started drinking at 2pm in the afternoon and got angry and agitated when he would not buy her more beer.
30. He conceded that during their 20 years of marriage, there have been verbal and physical altercations between the parties. However any violence has taken the form of both parties slapping each other during the course of those altercations. He says that there have been no other occasions of physical or mental abuse during their marriage and after the divorce was granted. He denies that he has been the sole aggressor.
31. H.L says that R.K.S has lied about the domestic violence that she says H.L committed on her. He has never punched R.K.S.
32. He explains that the text messages which he sent R.K. Shave been in relation to the Deed of Division of Matrimonial Property because R.K.S was not sending the weekly payments as agreed to under the Deed. He texted R.K.S to say that he and the children were coming to Samoa and would require funds for living expenses and petrol as agreed to under the Deed. He says he texted that he knows where she lives and can go and uplift the money from her.
33. He said he has never been to look for her current home. He accepts that their marriage is over and says that he has moved on with his life. He says that his focus now is the children.
34. H.L says that he came to Samoa because he was advised by his lawyer to do so in order to sort out the matrimonial property issues. This is because R.K.S has not complied with the terms of the Deed. He says that he knows their family business is doing well.
35. H.L’s concern is that if there is a Protection Order in place, he will be disadvantaged as he will not be able to inspect the business and obtain the necessary financial records. He says that R.K.S has not provided him with the financial information in relation to the business.
36. H.L denies categorically the allegations and says that these allegations have affected his reputation.

Discussion

37. Although R.K.S’s evidence is unchallenged, I must be satisfied as to the veracity of her evidence.
38. Whilst giving evidence the R.K.S was clearly distressed and cried throughout her evidence.
39. I remind myself that I put aside any feelings of sympathy or ill will towards R.K.S and remain balanced in assessing the evidence.
40. The evidence of R.K.S has been categorically denied by the H.L. It is therefore up to me to make findings of fact.
41. There is nothing in the substance of R.K.S’s evidence or the way in which she conveyed her evidence which causes me to doubt the reliability of her evidence. I do not accept that R.K.S has fabricated all the incidences of domestic violence which she now puts before the Court. R.K.S has often referenced the incidences of domestic violence over the years to stages in the children’s lives, the children’s ages or their place of residence. She has also referenced domestic violence incidences to times when she or she and the children have moved to live away from H.L. This reinforces her credibility and the reliability of her evidence.
42. I accept that there were acts of domestic violence during the marriage in the form of physical abuse, emotional abuse and harassment. This started in December 1992, a month before R.K.S gave birth to their first child. The acts of domestic violence were throughout the marriage (except when R.K.S was pregnant with their two younger sons) and continued until H.L was served with the Interim Protection Order. Therefore I do not accept that R.K.S has lied about the acts of domestic violence by H.L on her.
43. Whilst I accept that the reason for the fighting may have been due in part to the R.K.S’s drinking, it does not justify domestic violence by H.L on R.K.S.
44. I accept that R.K.S is fearful of H.L, even though he now resides in Australia. H.L is tall and well built while R.K.S is slight in comparison. H.L has the parties’ two younger sons and as such there will be occasions where the parties will see each other. There will be times when H.L will travel to and from Samoa as it appears that matrimonial property issues are ongoing.
45. I do not accept the evidence of H.L that apart from the occasions where he and R.K.S have exchanged slaps, there have been no other acts of domestic violence by him on R.K.S.
46. I do accept however that there has been no domestic violence since the granting of the Interim Protection Order on 30 April 2014. The delicate peace and space that both parties have had since that date is to be nurtured and encouraged.
47. I do accept that H.L has moved on with his life, albeit sadly and reluctantly as evident by his emotions when he said that he now accepts that their marriage is over.

Result

48. On the whole of the evidence, I am satisfied on a balance of probabilities that H.L has committed acts of domestic violence on R.K.S during their marriage.
49. Accordingly, the Interim Protection Order which I granted on 30 April 2014 will now be made a Protection Order which is final until it is set aside.
50. Parliament has seen fit to provide protection for victims of domestic violence through Protection Orders.
51. However, a Protection order is a shield and not a weapon. For R.K.S and H.L, it is to provide a safe setting in which the parties can work together as parents of four children. Their relationship will be ongoing as parents, but this Order will help set the boundaries as they try to work through their re-shaped relationship.
    

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JUDGE TUALA-WARREN