L. M. T v A. T [2016] WSFC 4 (19 September 2016)

FAMILY COURT OF SAMOA
L.M.T v A.T [2016] WSFC 4

Case name:	L.M.T v A.T
Citation:	[2016] WSFC 4
Decision date:	19 September 2016
Parties:	L.M.T of Magiagi (Applicant) and A.T of Magiagi, Faleula and Apolima-tai (Respondent)
Hearing date(s):	19 July 2016
File number(s):
Jurisdiction:	Maintenance
Place of delivery:	Family Court of Samoa, Mulinuu
Judge(s):	Judge Leiataualesa D M Clarke
On appeal from:
Order:	The Interim Protection Orders dated 22 March 2016 as amended are made Protection Orders of the Court and shall remain in force until otherwise set aside by the Court. The application for custody of the children of the marriage is adjourned for mention before the Family Court at 10.00am on Thursday 29 September 2016.
Representation:	Constable Falepule Tomasi for Applicant P Fepuleai for Respondent.
Catchwords:	Interim protection order – domestic violence - allegations of infidelity.
Words and phrases:	Motion for discharge of interim protection order filed.
Legislation cited:	Family Safety Act 2013 ss. 2; 7; 19
Cases cited:
Summary of decision:

IN THE FAMILY COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

L.M.T of Magiagi
Applicant

A N D:

A.T of Magiagi, Faleula and Apolima-tai
Respondent

Representation:
Constable Falepule Tomasi for Applicant
Mr Patrick Fepuleai for Respondent.

Hearing: 19^th July 2016
Decision: 19^th September 2016

RESERVED DECISION OF JUDGE CLARKE

The Application:

1. The Family Court issued Ex Parte Interim Protection Orders dated 22 March 2016 (“the IPO”) against the Respondent. In response to the Interim Protection Orders, the Respondent filed a Motion for the Discharge of the IPO and for custody. This determination is restricted to the application by the Respondent to discharge the IPO.
2. The ground stipulated by the Respondent for the discharge of the IPO is that the reasons given by the Applicant in her affidavit in support of the IPO are “totally false and fabricated”.

Background to Applicant and Respondent Relationship:

3. The Applicant is 35 years of age and is the Respondent’s legal wife. They have been married for approximately 10 years. They have three children together, two sons and a daughter. They range from the eldest child being approximately 12 years of age to the youngest being 2 years of age.
4. The Applicant and Respondent have now separated. The two sons live with the Respondent at Faleula and the daughter lives with the Applicant at Magiagi.

The Law:

5. Section 7 of the Family Safety Act 2013 (“FSA”) deals with the making of Protection Orders and provides as follows:

“7. Protection orders where respondent appears on due date – (1) Where the respondent appears on the return date required under section 5(3)(b), in order to oppose the issuing of a protection order, the Court shall:

(a) proceed to hear the matter and consider any evidence previously received in relation to the application made under section 4; and

(b) consider further evidence as it may direct to any party of the proceedings. (2) The Court shall after hearing all the evidence regarding an application under this Act issue a protection order, if it finds, on a balance of probabilities, that the respondent has committed or is committing an act of domestic violence.”(emphasis added)

6. Domestic violence is defined in section 2 of the FSA as follows:

“domestic violence” means,:

(a) physical abuse;

(b) sexual abuse;

(c) emotional, verbal and psychological abuse;

(d) intimidation;

(e) harassment;

(f) stalking;

(g) 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.

7. Section 19 of the FSA permits the Court to receive into evidence any evidence which it consider necessary to make a decision or determination in respect of the granting or refusal of a protection order.
8. To issue the Protection Orders, I must be satisfied on the balance of probabilities that the Respondent has committed or is committing an act of domestic violence against the Applicant.

The Evidence:

9. The Applicant and her older sister V.M gave evidence.
10. The Applicant said that to their families and everyone else, her relationship with her husband seemed to be a warm relationship. However, since their relationship began, there was a long history of both physical and verbal abuse. She said that there were many assaults carried out at their home and that many times, the Respondent would insult her and call her “paumuku”. She said the Respondent threatened to cut off her head with a sapelu.
11. In her evidence, the Applicant referred to specific alleged beatings. She said she was beaten in 2013 at their home. This beating caused her a black eye and she did not go to work for three days. She also recounted being assaulted at the Magiagi hill sometime between 2012 and 2013 before the death of her father (in February 2013). She said that between 2015 and 2016, she was also beaten two to three times by the Respondent. She said that between the end of November and December 2015, the Respondent assaulted her on the road to Tiavi. This was also referred to in her statement marked “E” in Exhibit A1.
12. In cross-examination, an altercation between the Applicant and the Respondent was put to the Applicant. This incident referred to the Applicant having spoken on the phone with a person whilst she was in the bathroom. The Respondent allegedly checked the phone to find out it was the man the Respondent believed she was having an affair. She denied this allegation of an affair. This is the same incident referred to in the evidence of V.M at paragraph 14 below and that of the Respondent at paragraph 19 below.
13. In a January 2016 alleged beating, the Applicant said that they were in the car and as he drove the car, he assaulted her. In her evidence, the Applicant says that the domestic violence would occur and then they would make up. She said she remained in the relationship because of their children.
14. The Applicant’s sister gave evidence. In her evidence, V.M said that there was an occasion whilst her father was alive, sometime before February 2013, that the Applicant came to her and she had a black eye. She asked the Applicant what happened and the Applicant told her “I was almost killed by A.T inside the room...” In her evidence, V.M also said that there was another incident between the Applicant and the Respondent at the end of last year whereby she separated the Applicant and Respondent when there was an altercation between them (vevesi), arising from the phone call in the bathroom. In respect of this incident, she said that “le taimi lava lea na vevesi, na oo ai lima o A.T i lou uso, o au na vaovao.”
15. V.M recounted that on many occasions, the Applicant and Respondents’ children would tell her “ua vevesi foi lou tama ma lou tina, ua fasi e lou tama lou tina.”
16. The Respondent gave evidence and his affidavit dated 4 April 2016 was tendered as exhibit R2. The Respondent strongly disputed any acts of domestic violence. In his evidence, he did not deny that there were disputes between he and the Applicant when they lived at Magiagi. He however said that all the disputes in their marriage were caused by the Applicant (“O fa’afitauli uma lava o le ma ulugalii e mafua mai ona o le itu talosaga”). He went on to say that he didn’t assault the Applicant but that he would become angry and swear at her because she would lie to him (“ou te le fa’aolima, ala na tupu ona o lou talatalanoa atu ae pepelo e alai na ou ita, ou palauvale”).
17. The Respondent said that between 2011 and 2013, the Applicant had a relationship with a man from her work. Between 2014 and 2016, he said that the Applicant had another affair with a different man from a local sporting organization. Asked about whether there was a night that he assaulted the Applicant causing her a black eye, the Respondent said “lau afioga, oute leiloa pe na tupu se mea faapena” (I don’t know if anything like that happened).
18. In response to the allegation that he assaulted the Applicant on the way to Tiavi, the Respondent does not deny that he went to Tiavi with the Applicant and their children. In his account however, this occurred at the end of last year. He said that he found out about the Applicant and the man with whom she was alleged to be having an affair with staying at a hotel together. He was very angry about this and he wanted to talk to her about it so they went for a drive together. She lied to him about what had occurred. He was angry about finding out about the Applicant and the man staying at the hotel together and he said he tried to talk to her to get over his pain.
19. In January 2016, the Respondent said that he found the Applicant in the toilet talking on the cell phone. She was talking to the man from the sporting organization with whom she was alleged to be having an affair. He said that he took the phone from the Applicant in the bathroom, showed the phone to her sister and he had exchanges with the man on the phone. He had a dispute (vesiga) with the Applicant and as a result, he then decided to leave the Applicant. He denied the Applicant’s sister intervening and separating him from the Applicant. He said he spoke properly with the Applicant’s family and explained to them that he was leaving and the next morning, he left with the children.
20. In his evidence, the Respondent accepts that he would swear at the Applicant. He said that he would swear at her because of the pain he felt from what he was seeing her do, also referring to her as “Eve” in his evidence, as a reference to Adam and Eve. He said that he would swear at the Applicant because “uma uma gou talanoa filemu ae leai se mea o suia.” He went on to say in response to his relationship being characterized by disputes and he swearing at the Applicant as follows:

“leai, mai le amataga ou te leiloa e iai ni uiga faapea o L.M.T, ae ina ua ou iloa ma mautinoa ma ou vaai ai, lea na mafua, a ou talanoa atu i le filemu, e tali mai i le pepelo, tali mai i le pepelo, a lea ou te mautinoa ma ou vaai i mea ia e fai, lea na oso le ita, alu loa male palauvale uma foi ma le ita, ao lena mea ole fasi, oi sole.”

Discussion

21. The marital relationship between the Applicant and the Respondent is one that at least in recent years, has been characterized by conflict and dispute. This primarily has arisen from allegations of infidelity. The Respondent suspected the Applicant of having an affair with a work colleague between 2011 to 2013. From 2014 to 2016, he suspected she was having another affair with a man from a local sporting organization. I accept that the Respondent genuinely believed that the Applicant has been unfaithful.
22. When confronted by the Respondent about the alleged infidelities, the Applicant denied the allegations. In the face of her denials, the Respondent believed her a liar which caused him to become angry. In his evidence, the Respondent referred to the Applicant as “Eve”. He accepted that due to his anger at what he perceived to be the Applicant’s continued lies, he would swear at the Applicant but he denied assaulting her.
23. Whether the Applicant was unfaithful in her marriage to the Respondent is irrelevant to the matter that I must determine, namely, whether there were acts of domestic violence committed by the Respondent against the Applicant that support the making of the Protection Orders. The fact that a spouse or partner is unfaithful to the other, whether true or not, is no defence to a Protection Order being made. It also cannot in any circumstances justify a spouse or partner being subject to acts of domestic violence by the other.
24. I found the Respondent’s evidence to be evasive and his denials of having assaulted the Applicant not credible. Having observed the Respondent in the witness box and hearing from him, I prefer the evidence of the Applicant and her sister V.M to that of the Applicant. The Respondent however genuinely believed his wife to be engaged in affairs with other men. This caused him to become angry and to confront the Applicant about those allegations.
25. I do not accept that when angry, the Respondent restricted his anger to words. I prefer the evidence of the Applicant and her sister to that of the Respondent and found their evidence to be more credible and preferable to that of the Respondent.
26. On the evidence, I am therefore satisfied on the balance of probabilities that the Respondent has committed acts of domestic violence against the Applicant, that is:
    1. By assaulting the Applicant sometime around or before February 2013 causing the Applicant to suffer a black eye;
    2. By assaulting the Applicant on their drive to Tiavi between late 2015 and January 2016;
    100. Through emotional abuse of the Applicant in late 2015 or January 2016 when he found the Applicant in the toilet speaking on the telephone, allegedly with the man with whom she was alleged to be having an affair; and
    4. By swearing at the Applicant as accepted by the Respondent constituting emotional and verbal abuse and intimidation of the Applicant over a period of time during their relationship.
27. The evidence has not established on balance of probabilities that the Respondent has committed any acts of domestic violence against the children of the marriage. The Orders made by His Honour Judge Vaai dated 14 April 2016 as to interim custody of the children shall continue until the child custody application is determined.
28. Should the parties seek Interim Protection Orders in respect of the children, appropriate application may be made to the Court.

Result

29. For the reasons aforementioned, the Interim Protection Orders dated 22 March 2016 as amended are made Protection Orders of the Court and shall remain in force until otherwise set aside by the Court.
30. The application for custody of the children of the marriage is adjourned for mention before the Family Court at 10.00am on Thursday 29 September 2016.

JUDGE LEIATAUALESA D M CLARKE