MM v PP [2014] WSFC 1 (15 August 2014)

IN THE FAMILY COURT OF SAMOA
MM v PP [2014] WSFC 1

Case name:	MM v PP,VP and JC
Citation:	[2014] WSFC 1
Decision date:	15 August 2014
Parties:	MM v PP and VP and JC
Hearing date(s):	15 July 2014
File number(s):	APO 171/14
Jurisdiction:
Place of delivery:	Family Court of Samoa, Mulinuu
Judge(s):	Honourable Judge Tafaoimalo L Tuala-Warren
On appeal from:
Order:	- Accordingly I will not grant a Protection Order, interim or otherwise.
Representation:	Unasa Leilani Va’a-Tamati for Applicant Patrick Fepuleai for Respondents
Catchwords:	Fearing for personal safety, act of domestic violence
Words and phrases:
Legislation cited:	Family Safety Act 2013 s5(4) (2),
Cases cited:
Summary of decision:

IN THE FAMILY COURT OF SAMOA
HELD AT MULINUU

BETWEEN

MM of Levili, Business Proprietor

Applicant

AND
PP and VP of Levili, Business Proprietors

First Respondents

AND
JC of Saleimoa, Business Proprietor

Counsel: Unasa Leilani Va’a-Tamati for Applicant

Patrick Fepuleai for Respondents

Decision: 15 August 2014

D E C I S I O N

Introduction

1. On 9 June 2014 the Applicant MM filed an ex parte motion for a Protection order against the First Respondents, P and VP and the Second Respondent, JC.
2. The Court was not satisfied that the threshold had been reached for proceeding without notice. Accordingly, pursuant to section 5 (4) of the Family Safety Act 2013, the Application was placed on notice with a return date of 9 July 2014.
3. All of the Respondents opposed the making of a protection order, hence the necessity for this hearing on 15 July 2014.

Background

4. MM is married to R M, the brother of JC. VP is J’s daughter while PP is V’s husband.
5. M, R, V and P all live in the M compound at Levili. J lives at Saleimoa.
6. V and P own and operate a gift shop and restaurant, trading as Pacific Jewel, on land owned by J.
7. There are proceedings pending by R against all of Respondents for encroachment of easements at Levili which will be heard in September 2014.
8. The easements appear to run between J and R’s land. A part of it is used for car parking for the Pacific Jewel business. It appears that it is this use which has caused much of the friction leading to this application.

The Law

9. Under section 5(4) of the Family Safety Act 2013 (“the Act”), where the Court does not issue an interim protection order under section 5, the Court shall direct the Registrar or complainant’s legal counsel, to serve certified copies of the application concerned and any supporting affidavits on the respondent with a notice calling on the respondent to show cause on the return date specified in the notice as to why a protection order should not be issued.
10. 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)

11. The Court must be satisfied that there is sufficient evidence of both limbs under Section 5(2).
12. 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, future acts and continuous acts of domestic violence. That inevitably involves an assessment of ongoing risk to the Applicant. The likelihood of further assaults as a result of domestic violence is a necessary part of that assessment. In the event that the Court is not satisfied that there is sufficient evidence of the risk, it is difficult to see how a Protection Order can be granted.
13. Under section 2 of the Act, ‘domestic violence’ means:

1. Physical abuse;
2. Sexual abuse;
3. Emotional, verbal and psychological abuse;
4. Intimidation;
5. Harassment;
6. 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.

14. ‘Emotional, verbal and psychological abuse’ means a pattern of degrading or humiliating conduct towards a complainant, including;

• Repeated insults, ridicule or name calling;
• Repeated threats to cause emotional pain; or
• The repeated exhibition of obsessive possessiveness or jealousy, which is such as to constitute a serious invasion of the complainant’s privacy, liberty, integrity or security.

15. ‘Intimidation’ means uttering or conveying a threat, or causing a complainant to receive a threat, which induces fear.

The Evidence

16. The Court heard evidence from M, R, P and J. Only V did not give evidence. Those that did however, painted a picture of ongoing volatility which has caused enormous distress to them all. That much they are agreed on.
17. Although all of the witnesses were visibly upset whilst giving evidence, I remind myself that I put aside any feelings of sympathy or ill will towards any of them and assess the evidence impartially on the balance of probabilities.
18. Given that M alleges a number of incidents of domestic violence, I propose to deal with the specific allegations first, followed by the more general allegations.

The car parking issue

19. Both M and R gave evidence about the car parking issue as follows;

1. The Respondents and their friends and family continually park in their son I’s car park which is under a sheltered car port on the Applicant’s part of the land.
2. The First Respondents have parked in a previous tenant’s car park when the previous tenant had not paid their rent.

100. P continues to mark the car parking spaces on easements. The easements are on their land. This is an issue which is to be determined in the upcoming hearing in the Supreme Court.

20. Both see the car parking issue as a form of intimidation of M by the Respondents.
21. P disputes that it is a form of intimidation and instead says that marking of the car parks are for the orderly parking of his clients so they do not block the driveway to the Respondents’ home. J says that as landlord, she gave permission to P to mark the car parks as long as they were on her land.
22. In relation to the issue with I’s car park, he says that it is the extended family which park there as he has a parking attendant to direct their customers’ cars.
23. In relation to the previous tenant, he says that the previous tenant approached him to park in their car park if they need it.
24. I find that there are ongoing issues with the car parks because of the easements issue. The use of easements and the rights attached to those is the main issue in relation to the car parks. I accept that it is frustrating to all parties. However, I do not accept that the disagreement over car parks is a form of intimidation of M, rather it is a disagreement as to property rights which is now before the Supreme Court.
25. I therefore do not accept that any the car parking issues as specified by M and R constitutes acts of domestic violence.

Cyclone Evan in 2012

26. This incident is not one of domestic violence against M, but against I. I have allowed this evidence because in her application for a protection order, M has stated that she fears for the safety of herself and her only son. Sometime during Cyclone Evan in December 2012, M’s evidence was J yelled out in public condemning statements while I and his friends were moving equipment from one building to another, saying amongst other things I was “good for nothing” and “hopeless”. M was not present but was told by I.
27. None of the Respondents have a problem with I. Indeed he sometimes comes and eats in P and V ’s restaurant and they talk and greet him all the time. They do not involve I in this disagreement with his parents. J even prepared a baby gift for I’s baby a few months ago.
28. I did not give evidence. This application is solely in M’s name even though the motion says that M fears for her safety and that of her only son. I is 22 years old and has a family.
29. I find that there is no evidence to suggest that a protection Order is warranted for I.

The car keys incident

30. Sometime in 2013, M’s evidence is that J while arguing with R, shouted abuse at her while she was upstairs. She gave insults back in return, and J threw keys at her which missed. J then moved towards her with intent to physically assault her but PP held her in a lock and pushed her away.
31. R confirmed what M said but said further that J looked for stones to throw at M but could not find any.
32. In relation to the incident between J and M, P says that it was a heated argument between siblings (J and R) and M came downstairs making gestures with her middle finger and swearing at J. P says that he held his arms up to stop both women from each other and told R to take M home.
33. J’s evidence is that she and R were having a disagreement when M appeared from her home upstairs and started swearing at her and pointing obscene gestures using her middle fingers to her and her children. J admits that she threw the keys at M after M called her a whore for having been married twice. P did step in, held her back with his palm and told R to control his wife. She says that P did not hold her in a locked position as M claims. As M walked away, M pulled down her pants and flashed her rear bottom to J and her children all while still yelling insults. J says that she did not look for a stone as the area where the disagreement occurred is completely covered in concrete.
34. Even though J lives at Saleimoa, M says that J has the capability of lashing out and if J was not restrained by P she would have attacked her.
35. J says that she has not come into town from Saleimoa to do anything to M since that incident and all of this year. J says that M as innocent party and the victim could not be further from the truth.
36. There are several versions of what happened. This was a heated argument between in-laws which is unfortunately not an unusual occurrence. I accept that J threw M with car keys while they were both shouting abuse at each other.
37. As to whether the throwing of car keys constitutes domestic violence as defined under the Act, I find that it does. Even though the car keys did not hit M, It is abusive behaviour towards M which may cause imminent harm to her safety, health or wellbeing.

The clothesline incident

38. M says that P and V erected a clothesline obstructing the entrance to I’s house. P was hostile to her when she asked him to remove the clothesline and he said “shut up” to her.
39. R was overseas when this happened but expressed concern that his wife was alone to confront the situation.
40. P says that he erected a clothesline having obtained permission from their landlord J. It was erected diagonally on their own land and did not obstruct any entrance or stairs. M came to his office and aggressively said to remove the clothes line. He did remove the clothesline subsequent to that but M tried to physically remove it, and at all times she was the aggressor.

41. I accept that there was an incident caused by the erecting of a clothes line by P which caused an argument between M and P. It was done with the permission of P and V ’s landlord. However erecting a clothes line and arguing over its location is not an act of domestic violence.

The camera incident

42. The most recent incident involved the marking of car parking spaces, again on Saturday 12 July 2014. M’s evidence is that as she was taking photos from a distance of the signs which P had put on the car parks, V pushed her camera with two hands into her face. During the same incident, her husband R picked up a sign and threw it onto J’s land.
43. P says in relation to this incident that R came speeding in his car and pointed to P’s forehead demanding that he remove his car park signs. R grabbed the signs and threw it towards V . R also pushed him with his shoulder. P did not retaliate but got his sign and put it back where it was. R swore at V and threatened P saying “you watch what I will do to you” while pointing his finger like a gun.
44. P says that V pushed M’s camera out of her face with one hand as M had her camera in her face. This happened when the Police were present.
45. There are also two different versions of what happened. I accept that M was taking photos with a camera. I accept that her camera was in V ’s face and V pushed the camera away from her face. It did not hit M in the face. I find that V ’s action is nothing more than frustration at having a camera in one’s face. Pushing the camera away from her face was a defensive action by V . It does not constitute domestic violence.

Domestic violence

46. Apart from the specific incidences of alleged domestic violence, M also alleges ongoing acts of domestic violence by the Respondents. I will address those now.

Mocking and Ridiculing

47. M claims that the Respondents and other relatives mock and ridicule her in public all the time by calling out her name and when she does not answer, they laugh.
48. J denies mocking and ridiculing M in public.
49. The ongoing acts of domestic violence alleged by M such as the mocking and ridicule by the Respondents that M says is commonplace is hard to believe. She could not point to any specific example of this happening, except some boys who are related to them all laughing when she says ‘hi’ and an incident during the cyclone with a Lester who is V ’s brother. I have not considered any of the incidences where M has pinpointed people other than the Respondents.
50. I do not accept that there was any mocking or ridiculing of M in public by any of the Respondents.

Disrupting worship on Saturdays

51. M says that V ’s brother R Best would bring his kids who are noisy and disrupt the neighbours dogs who would then bark and disrupt their worship on a Saturday.
52. I accept that R Best’s children and the neighbours’ dogs may be noisy and this most likely disrupts worship on a Saturday. However, these disruptions are by the dogs and noisy children, not by the Respondents. It is a far stretch to say that the Respondents are responsible for this disruption when the children and the dogs do not belong to any of the Respondents. Disrupting worship on a Saturday is not domestic violence. These are matters which should be negotiated amongst family.

Fearing for her personal safety

53 M says that the Respondents have a large family and she is on her own and fearful of the Respondents. R says that as he travels often and leaves M alone at home, he is fearful that there is no one to protect her in Samoa.
54. J says that M has never joined in any family events since R married her and acknowledges that that is their decision.
55. I accept that M only has her son and husband as she does not engage with R’s family. I accept that M has chosen to keep away from R’s family and would as a result feel alone. This is her choice and she is entitled to make that choice. However it is difficult to accept that this feeling of being alone can then be a basis for a protection order.
56. I accept that M feels alone but I do not find that there is any evidence to support her fear of the Respondents.

The Lawsuit

57. R says that a protection order to protect his wife is justified because there is a law suit which he has filed against the Respondents and as a result, tensions are high and his wife M is the subject of ridicule by the Respondents and other family members. M gave similar evidence.
58. I accept that tensions are high because of the law suit. Tensions and frustrations have been expressed by all parties. However, I find it difficult in this case to find any domestic violence by the Respondents stemming from the filing of the law suit by R. It has led to heated arguments, which are expressions of how tense the situation is.

Firearms

59. R’s evidence is that P and J have firearms in their possession which makes him uncomfortable because P discharged a firearm in their compound. He admits that P has never threatened him or M with a firearm.
60. P said that he has discharged a firearm twice on his property for reasons which he explained and he no longer has a firearm in his possession. I accept his evidence about this.
61. I do not accept that there is any danger posed to M of domestic violence as the result of possessing firearms as P does not have a firearm.

Submissions
Applicant

62. The Applicant submits that where domestic violence occurs, the Family Safety Act extends the definition beyond the physical to include emotional, verbal and psychological abuse.
63. It is submitted that the Applicant has been constantly intimidated by the Respondents and their family members, and cites the specific examples of the car keys being thrown at her, the erecting of the clothes line and Second Named First Respondent’s action in the presence of the police.
64. The Applicant’s responses in kind to the Respondent’s intimidation and mockery of her is explained as a human response.
65. It is submitted that the Applicant is desperate for peace of mind, and needs to know that she will not be personally attacked whether physically or otherwise as a result of growing tensions within her husband’s family.
66. It is submitted that the Applicant has proven to the required standard of proof that she does need a protection order.

Respondents

67. The Respondents submit that this is not the type of case that was intended to be covered under this Act. A protection order in this case goes against the purpose of the Act and is completely outside of what the legislation intended to cover.
68. They submit that in none of the incidences did any of the Respondents enter into the land of the Applicant and her husband and carry out any acts of domestic violence. In all incidences involving confrontation, these were instigated by the Applicant and/or her husband and always occurred on the Respondents’ land. The Applicant has been the aggressor towards the First Respondents.
69. They submit that the Applicant has not been able to prove a pattern of degrading or humiliating conduct towards her by any of the Respondents.
70. Ultimately they submit that the Applicant has failed to prove on a balance of probabilities that there are continuing acts of domestic violence against her.

Findings

[1] I must be satisfied that there is sufficient evidence of two things under section 5

1. That the Respondents have committed or are committing an act of domestic violence; and
2. The complainant is likely to be either physically assaulted as a result of such domestic violence if a protection order is not issued.

[2] I accept that all incidences as pointed out by M had occurred, but whether they constitute domestic violence is another matter.
[3] The closest incident to an act of domestic violence is J throwing her keys at M. They missed but it does constitute abusive behaviour. It therefore satisfies the first limb of the test under Section 5(2) of the Act, in that the Second Respondent has committed an act of domestic violence.

[4] Where all parties are engaged in name calling, rude gestures, and strong words, who then is the victim? Where there is a sole aggressor or aggressors then there will be a victim. This is because there is a power imbalance which is evident.
[5] Apart from the throwing of the car keys, I can find no other evidence of the Respondents committing any acts of domestic violence on M.
[6] However in assessing the risk of future domestic violence, I am not satisfied that there is likely to be physical assaults as a result of domestic violence committed by any of the Respondents on M as required under section 5(2)(b). This is an assessment of future risk.
[7] P has made it evidently clear that they mind their own business. I do not accept that there is any ongoing risk to M from P and V or that they pose a threat to M. They say that they do not want anything to do with M and that she is an insignificant person whom no one bothers. Not liking an in law is not domestic violence.
[8] I do not accept that J who lives in Saleimoa is a threat to M. She has not bothered M since the car keys incident which I understand happened sometime in early 2013.
[9] It is difficult to grant a protection order where there is no ongoing risk or threat to an Applicant.
[10] I remind myself that protection orders should not be used to prevent familial disagreements which are normal in any family setting. This is not the intended purpose of protection orders. Protection orders are to prevent further domestic violence and domestic violence is given its wide definition. In this regard I agree with the submissions of the Respondent that this is not the type of case that was intended under the Family Safety Act 2013. There must be a pattern of degrading or humiliating conduct towards a complainant.

[11] The evidence points to a few incidences which are few and far apart. Apart from the throwing of the car keys, which I find is an act of domestic violence, I cannot find a pattern of degrading or humiliating conduct towards M. I do see a family torn by conflict and expressing it in an unhelpful way.
[12] No doubt the pending law suit has created tension, ill will and anger which has strained even further an already pressured relationship.

Result

[13] On the whole of the evidence, I am satisfied that there is sufficient evidence that;

100. The Second Respondent has committed an act of domestic violence on M by throwing her car keys at M;

4. However I am not satisfied that there is sufficient evidence to show that there is ongoing risk of any domestic violence to M from any of the Respondents.

[14] Accordingly, I will not grant a Protection order, interim or otherwise.
[15] Parliament has seen fit to provide protection for victims of domestic violence through Protection Orders. It cannot and should not be used to regulate familial relationships, of which an inevitable part is arguments and tension.
[16] A Protection order is a shield and not a weapon. Protection orders are to protect those who cannot protect themselves and are victims in the true sense of the word.
[17] In saying that, I hope that M is able to find some peace living in a country which is not her own. Her son I who does not get involved in the arguments is to be commended.

Honorable Judge Tuala-Warren