L.A v S.L [2016] WSFC 5 (5 October 2016)

IN THE FAMILY COURT OF SAMOA
L.A v S.L & T.S [2016] WSFC 5

Case name:	L.A v S.L & T.S
Citation:	[2016] WSFC 5
Decision date:	05 October 2016 (written reasons)
Parties:	SAMOA VICTIM SUPPORT GROUP on behalf of L.A, of Solosolo and Vaitele-Fou (Applicant) and S.L, of Vaitele-Fou (First Respondent) and T.F of Vaitele-Fou (Second Respondent)
Hearing date(s):	24 June 2016
File number(s):
Jurisdiction:	FAMILY
Place of delivery:	Family Court of Samoa, Mulinuu
Judge(s):	Judge Leiataualesa D M Clarke
On appeal from:
Order:	For the reasons aforementioned the IPO dated 23rd June 2016 against the 2nd Respondent is set aside. Protection Orders on the following terms are made in respect of the 1st Respondent: 1st Respondent is prohibited from committing any further acts of domestic violence against L.A; is to attend parenting counseling within 4 months as directed by the Probation Service; and this matter is to be re-mentioned on the 28th October 2016 to review the 1st Respondent’s compliance with the order to attend parenting counseling. L.A’s custody is to return to the 2nd Respondent. Should custody be at issue, parties may file the appropriate custody applications for determination by the Family Court.
Representation:	Constable F. Tomasi for Applicant Su’a for 1st and 2nd Respondents
Catchwords:	Interim protection order – domestic violence – custody
Words and phrases:
Legislation cited:	Family Safety Act 2013 ss. 2; 5(3)(b); 7; 19;
Cases cited:
Summary of decision:

IN THE FAMILY COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

SAMOA VICTIM SUPPORT GROUP on behalf of L.A of Solosolo and Vaitele-Fou
Applicant

A N D:

S.L of Vaitele Fou
First Respondent

A N D:

T.F of Vaitele-Fou
Second Respondent

Representation:
Constable F. Tomasi for Applicant
Su’a for 1^st and 2^nd Respondents.

Hearing: 24^th June 2016
Oral Decision: 1^st July 2016
Written Reasons: 5^th October 2016

DECISION OF JUDGE CLARKE

The Application:

1. The Family Court issued Ex Parte Interim Protection Orders dated 23^rd June 2016 (“the IPO”) against the 1^st and 2^nd Respondents. By consent of the parties, the matter proceeded to an expedited hearing on the 24^th June 2016. On the 1^st of July 2016, I delivered my oral decision setting aside the IPO against the 2^nd Respondent and making Protection Orders against the 1^st Respondent as follows:
   • (i) 1^st Respondent is prohibited from committing any further acts of domestic violence against the Applicant;
   • (ii) 1^st Respondent is to attend parenting counseling within 4 months as directed by the Probation Service; and
   • (iii) This matter is to be re-mentioned on the 28^th October 2016 to review the 1^st Respondent’s compliance with the order to attend parenting counseling.
2. I ordered that custody of L.A (“L”) return to the 2^nd Respondent as the natural mother. These are the reasons for my decision.

The Law:

3. 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)

4. 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.

5. 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 whether or not the evidence is admissible or not by law.
6. To issue the Protection Orders, I must be satisfied on the balance of probabilities that (a) L.A is in a domestic relationship with the Respondents; and (b) the Respondents have committed or are committing an act of domestic violence against him. There is no question that L.A is in a domestic relationship with the Respondents so the question for the Court to determine is whether the Respondents have committed acts of domestic violence against him.

Background:

7. The Samoa Victim Support Group (SVSG) has brought this application on behalf of L.A, a 12 year old boy. The 1^st Respondent is L.A’s step-father. The 2^nd Respondent is his natural mother. L.A’s natural father E.A resides in Cairns Australia having migrated about 7 years ago.
8. The allegations against the Respondents are that the 1^st Respondent carried out acts of domestic violence against L.A and the 2^nd Respondent does nothing to stop these acts. It is alleged that L.A is fearful of the 1^st Respondent.

The Evidence:

9. L.A gave evidence as did his paternal uncle L.H.A in support of the Protection Orders. Both Respondents also gave evidence to oppose the Protection Orders.
10. The 1^st Respondent is 36 years of age. He met the 2^nd Respondent in 2009 and they started a family together. The 2^nd Respondent is a member of the Police Service. The 2^nd Respondent had two children coming into the marriage with the 1^st Respondent from her prior relationship with E.A. The two children are L.A and his younger sister N.A. The application for Protection Orders relate only to L.A.
11. The evidence by the Respondents is that the “A” family started expressing a wish to see L.A in about 2013. The “A” family live at Solosolo. An arrangement between L.I.A (L.A’s grandfather on his father’s side) and the 2^nd Respondent was reached allowing L.A to stay with the “A” family from time to time. Following L.I.A’s passing however, disagreement arose between the 2^nd Respondent and the “A” family over L.A. When L.A stayed at Solosolo in March this year, he went with his father E.A and uncle L.H.A to Aleisa for his father’s pe’a. At Aleisa, L.A was asked whether he wanted a tattoo. Wanting a tattoo, one was tattooed around his belly button without the knowledge or consent of the Respondents.
12. After getting the tattoo, the Applicant returned home to the Respondents at Vaitele. When the 1^st Respondent found out about the tattoo, he was very upset about what had happened. That night, the 1^st Respondent returned home and found L.A asleep. L.A said he was woken by the 1^st Respondent and questioned about the tattoo and whether he understood its significance. The 1^st Respondent slapped him on the cheek, uttered swear words and then went to throw an onion at him. The 2^nd Respondent however intervened and also calmed the 1^st Respondent down.
13. There was also a second incident where L.A was smacked with a belt by the 1^st Respondent after receiving a poor school report. This was around 2014 and related to his 2^nd quarter report. L.A said he suffered no injuries from these incidences and that the 1^st Respondent looks after him well. He however expressed his wish to stay with the “A” family at Solosolo.
14. In explaining the school report incident, the 1^st Respondent said that was how he was brought up. He smacked L.A because he is strict about school reports and he doesn’t want L.A to “suffer like us.”
15. In his evidence, the 1^st Respondent spoke genuinely of his love and affection for L.A and N.A. He referred to L.A as his ‘pele’. L.A was 5 and N.A 2 years old when the 1^st and 2^nd Respondents began their relationship in 2009. He brought L.A and N.A up as his own children. The 1^st Respondent says that on one of the occasions when L.A was allowed to go to Solosolo, L.A stayed there for 2 weeks. The 1^st Respondent did not agree with allowing him to go and was unhappy with him staying there for so long. The 1^st Respondent noticed that when L.A would return from Solosolo, there were changes in his attitude and a distance in his behavior towards them.

Discussion

16. In March of this year, L.A accompanied E.A and L.H.A to Aleisa where E.A was having his pe’a done. When they were there, 12 year old L.A was asked whether he wanted a tattoo and on saying yes, E.A and L.H.A allowed him to be tattooed around his belly button. This was done without the knowledge or permission of the Respondents. That L.A was tattooed was ill considered, insensitive to the Respondents and should never have happened. It was also the trigger for the events that followed ultimately leading to the application for the Protection Orders before the Court.
17. I accept that when L.A returned home to the Respondents at Vaitele in March after the tattooing, the 1^st Respondent became angry when he found out about the tattoo. He slapped L.A on the mouth and swore. I also accept that the 1^st Respondent smacked L.A with a belt when L.A had a poor school report.
18. There is no evidence that the 2^nd Respondent carried out any acts of domestic violence against L.A. The evidence also showed that when the 1^st Respondent slapped L.A after the tattooing, the 2^nd Respondent intervened, protected L.A and calmed the 1^st Respondent down. The allegation that the 2^nd Respondent did nothing to stop the 1^st Respondent has no basis.
19. Having heard the evidence, particularly from the 1^st Respondent, I am satisfied that the 1^st Respondent has genuine love and affection for L.A and N.A. He has brought up both children as his own from a young age.
20. I also accept that the tattooing of L.A when accompanying E.A and L.H.A without any consultation with the Respondents upset the 1^st Respondent. It would any loving parent. Regrettably for the 1^st Respondent however, the demonstration of his ‘tough love’ both following the tattooing and on receiving L.A’s poor school report constitutes domestic violence under the FSA. Even though that was how he was brought up, times have changed. The 1^st Respondent should never have disciplined L.A in the way that he did. His response was wrong. Responsibility for the tattooing of L.A was also wrongly laid at the feet of L.A. He is 12 years old. That issue should have been raised with E.A and L.H.A, those who apparently permitted the tattooing to take place.
21. Having heard from the Respondents’, I also accept that the 1^st Respondent genuinely regrets his actions. As he said, what he did was wrong and he wished he could turn back time. Based on the evidence I have accepted, the 1^st Respondent is not an ongoing safety risk to L.A and for that reason, the protection orders that I make do not include the removal of L.A from the Respondents or a prohibition of contact between the 1^st Respondent and L.A. It will however provide certain protections for L.A as well as a rehabilitation component to re-train the 1^st Respondent on appropriate parenting skills.
22. On a final note, it is clear that the Respondents and the “A” family have genuine love and affection for L.A. It is why this matter is before the Court. I strongly encourage both the Respondents and the “A” family to reach an agreement that would enable L.A to be a part of both sides of his family. In saying this, the “A” family must also recognize and respect the Respondents who have brought up L.A and not allow any decisions to be made in respect of him that are properly those to be made by the Respondents and in particular, the 2^nd Respondent.

Result:

23. For the reasons aforementioned the IPO dated 23^rd June 2016 against the 2^nd Respondent is set aside. Protection Orders on the following terms are made in respect of the 1^st Respondent:
    • (i) 1st Respondent is prohibited from committing any further acts of domestic violence against L.A;
    • (ii) 1st Respondent is to attend parenting counseling within 4 months as directed by the Probation Service; and
    • (iii) This matter is to be re-mentioned on the 28th October 2016 to review the 1st Respondent’s compliance with the order to attend parenting counseling.
24. As the 2^nd Respondent committed no acts of domestic violence against L.A, his custody is to return to the 2^nd Respondent.
25. Should custody be at issue, parties may file the appropriate custody applications for determination by the Family Court.
    

JUDGE LEIATAUALESA D M CLARKE