A.G.H.F v P.T.A [2020] WSFC 1 (19 June 2020)

IN THE FAMILY COURT OF SAMOA
A.G.H.F v P.T.A& Others [2020] WSFC (19 June 2020)

Case name:	A.G.H.F v P.T.A & Others
Citation:	[2020] WSFC 1
Decision date:	19 June 2020
Parties:	A.G.H.F (Informant) v P.T.A (Respondent) & V.L; N.H; V.S; N.T; F.T; L.T.T; T.T; E.L; E.L; M.L; S.L; M.H; N.L; G.T & I.U.J.H (Associate Respondents)
Hearing date(s):	17 June 2020
File number(s):
Jurisdiction:	Family Court
Place of delivery:	Family Court of Samoa, Mulinuu
Judge(s):	Judge Atoa-Saaga
On appeal from:
Order:	The Interim Protection Order remains for the protection of the Applicant and the Beneficiaries and that the Respondent and all the Associate Respondents are not to commit any act of violence against the Applicant. Any act of violence includes both physical acts and the utterance of any insulting or threatening words that will cause emotional distress to the Applicant and beneficiaries including their 86 years old mother The Applicant and Beneficiaries are also prohibited from committing any act of domestic violence including the utterance of any insulting or threatening words to maintain the peace and harmony in the spirit of reconciliation reached at the end of the hearing
Representation:	Applicant, Respondent and Associate Respondents were unrepresented
Catchwords:	Interim protection order-act of domestic violence- beneficiaries- applicant- insulting words- threatening words- reconciliation- permanent protection order
Words and phrases:
Legislation cited:	Family Safety Act 2013.
Cases cited:
Summary of decision:

IN THE FAMILY COURT OF SAMOA
HELD AT MULINU’U

BETWEEN:

A.G.H.F

Applicant

A N D:

P.T.A

Respondent

V.L; N.H; V.S; N.T; F.T; L.T.T; T.T; E.L; E.L; M.L; S.L; M.H; N.L; G.T & I.U.J.H

Associate Respondents

Representation: The Applicant, Respondent and Associate Respondents were unrepresented

Hearing: 17^th June 2020

Decision: 19^th June 2020

DECISION OF JUDGE SAAGA

BRIEFING

1. The hearing proceeded on the 17^th June. The main issue was whether to grant a permanent protection order for the benefit of the Applicant and beneficiaries of the Protection Order.
2. At the end of the hearing I delivered my conclusions that the Interim Protection Order remains for the protection of the Applicant and the Beneficiaries and that the Respondent and all the Associate Respondents were not to commit any act of violence against the Applicant. Any act of violence includes both physical acts and the utterance of any insulting or threatening words that will cause emotional distress to the Applicant and beneficiaries including their 86 years old mother.
3. Conversely, the same conditions were imposed on the Applicant and Beneficiaries not to utter any insulting or threatening words nor commit any act of domestic violence against the Respondent and Associate Respondents and to maintain the peace and harmony in the spirit of reconciliation reached at the end of the hearing.
4. The Associate Respondent I.H was also prohibited from the consumption of alcohol to lessen the exacerbation of violence.
5. All the other conditions were set aside including the condition that the Associate Respondents were prohibited from visiting the house in which the Applicant was residing. The Applicant currently resides at the house where the parties’ elderly mother lives. She is 86 years of age and is bedridden.
6. The setting aside of this condition was with the consent and request of the Applicant as she expressed her wish for the Associate Respondents to visit their elderly mother.
7. A permanent protection order was not granted as the Applicant resides in (xy-country) a permanently and is to leave when the border restrictions are lifted.
8. When the Applicant leaves, there will be no need for the Interim Protection order to remain.
9. These are my reasons for the conclusion I reached.

APPLICATION

10. The Application was filed on the 28^th May 2020 and was not signed by the Applicant. The Application however included a sworn and signed Affidavit dated 21^st April 2020. The Court Registry accepted the application on 28^th May 2020.
11. The Application also included beneficiaries of the protection order. The beneficiaries are V.T, T.F, A.F, P.F, L.F, T.F, S.F, E.I, F.U.H, S.H, I.H, K.H, S.H, R.H, P.P, S.L.F and L.F.
12. Defect in form is not a valid ground for refusal of the Application.

INTERIM PROTECTION ORDER

13. The Court must consider as soon as possible an application for an interim protection order. The Court before the granting of a protection order must be satisfied there is a domestic relationship between the Applicant and the Respondent and Associated Respondents and that there has been a commission of an act of domestic violence.
14. The Court was satisfied that there was a domestic relationship between the parties.
15. The Respondent is the Applicant’s uncle and the Associated Respondents N.H; N.T; N.L, and G.T are siblings. Both N.L and G.T live overseas. F.T is a brother in law of the Applicant and his children are Associate Respondents T.T and L.T.T. V.L is a cousin of the Applicant and other Associate Respondents are all nieces and nephews.
16. The Beneficiaries of the interim protection order are the Applicant’s mother, siblings, nephews and nieces.
17. Domestic Violence includes physical, sexual, emotional, verbal and psychological abuse. Emotional, verbal and psychological abuse means a pattern of degrading or humiliating conduct towards a complainant included repeated insults, ridicule or name calling; repeated threats to cause emotional pain.
18. Interim Protection order was issued on 29^th May 2020 as the Court was satisfied that there were insulting and threatening words uttered and that the words caused emotional and psychological abuse to the Applicant. The conditions imposed by the Court were
    • (a) The prohibition of the commission of any domestic violence acts or the appointment of any person from the commission of any domestic violence acts on the Applicant.
    • (b) The prohibition of the Respondent and any Associated Respondents from entering the residence of the Applicant.
    • (c) The prohibition of the Respondent and any Associated Respondents from entering the Applicant’s place of work;
    • (d) The prohibition of any acts that the Court considers inappropriate under these circumstances.

COURT PROCEEDINGS

19. Only the Applicant and her sister were present at the beginning of the hearing with some of the beneficiaries arriving at the end of the Respondent and Associated Respondents evidence.
20. The Respondent and the Associated Respondents were all present except for the Associated Respondents L.T.T; T.T; N.L and G.T.
21. The Interim Protection Orders issued against Associate Respondents N.L and G.T who are currently in (xy-country) were set aside prior to the hearing.

SUMMARY OF THE EVIDENCE

Applicant’s evidence

22. The Applicant is the eldest of the siblings. She resides overseas and was in Samoa to visit her father who subsequently passed away. At the time of the hearing, she has been involved in a dispute with her younger siblings in Samoa and overseas and their children for a period of five months. The dispute arose from when their father passed away.
23. On the 18^th April 2020, the Respondent and the Applicant had a verbal argument in which she accused the Respondent of prohibiting the burial of her father on the land. The Respondent who is the uncle or the father’s brother supports the Associate Respondents.
24. The dispute has since escalated into violent confrontations and altercations between the Applicant, some of the beneficiaries and Associate Respondents necessitating the intervention of the police and the paramount chiefs of (x-village), U and K. Charges have been laid against the Applicant.
25. The Applicant has sought the assistance of the Chief (Sa’o) of their family. There have been three failed attempts at reconciliation. In a recent meeting of the Village Council, the Applicant was heavily reprimanded by the Village Council and the Applicant blames the Respondent and Associate Respondents for the public humiliation she suffered.
26. Allegations of mismanagement of funds by N.H including funeral contributions and insurance, threats by I.H to cause injury to the Applicant and injurious postings and personal attacks on the internet and accusations levelled against her by the Associate Respondents have caused the Applicant emotional and psychological stress.
27. Past unresolved issues and disputes over the use of the land and the construction of shops by the siblings including a shop financed by the Applicant and managed by N.H have all resurfaced and added fuel to the ensuing fight.
28. The Applicant recounted all her financial and in-kind assistance to all her siblings and family in the past years and her struggle to provide for her family in Samoa financially at the demise of her children and handicapped daughter. The Applicant’s children have been immensely affected by false rumours of her imprisonment and personal attacks on her character on social media including claims that she had misused funds. All these attacks are alleged to have been instigated by Associate Respondent N.H and has influenced her other siblings living overseas who have joined forces with the Associate Respondents against the Applicant and her children.
29. None of the Respondent and Associate Respondents attended her father’s funeral and have since ceased to visit their mother. Their absence at the father’s funeral and lack of interest in their mother’s welfare has become an additional burden on the Applicant notwithstanding that their absence has brought security and peace of mind to both the Applicant and her mother.
30. The emotional and psychological abuse on the Applicant has caused her to lose weight and sleep. She is heavily reliant on medications for her health and sanity.
31. The Applicant was distraught, highly strung and emotionally when giving evidence. At times, she was hysterical with outbursts of tears. She was incoherent and incomprehensible at times with speech full of rancour and malevolence against the Respondent and Associated Respondents.

Respondent and Associate Respondent Evidence

32. The Respondent P.T.A and Associate Respondents F.T; N.T and N.H all gave evidence. They denied any responsibilities for the emotional and psychological stress suffered by the Applicant attributing her emotional distress to self-induced stress. References were made to previous disagreements between the Applicant and her father including a lawsuit brought by the Applicant against her father and N.H for misusing of funds sent by the Applicant for the operation of the store that she had assisted in financing.
33. P.T.A denied having prohibited the burial of the Applicant’s father on the land and referred to the incident of the 18^th April 2020 as stemming from a meeting he had called to sort out the issues in relation to the prohibition of his brother’s burial on the land. A was disrespectful towards him and he reprimanded her and as a result he was chased off the land by the Applicant. N.H and her husband were also chased off the land. The Applicant not only screamed at them to leave the property but N.H was physically pushed by the Applicant out of the house. Since then, they have not returned to visit because of the fallout and the prohibition.
34. F.T and his wife N.T did not understand the reason why they were named in the Protection order when they do not live at (x-village) nor were they involved in the dispute. They recounted all the assistance they had rendered to the Applicant including accommodating her when she was unable to stay at (x-village) and initiating the reconciliation between the Applicant and her father after she was ostracised by her family after filing a lawsuit against her father and sister N.H for failure to account for funds she had invested.
35. N.H vehemently denied any wrongdoing including the misappropriation of funds and insurance.
36. The Respondents and Associate Respondents were composed when giving evidence. There were moments when they gave in to tears but they were composed on the stand and forthcoming with their testimonies.

DISCUSSIONS

37. Protection orders were designed as a shield and not a weapon. Protection orders were never meant to be used as a weapon to wield power, influence and control over people and properties. Protection orders do not apply to the protection of properties and land. Protection orders only protect people.
38. The jurisdiction of the Family Violence Court does not extend to administration of both customary and freehold land. Protection orders will provide protection for the applicant wherever she resides in Samoa. The only reason why the Court will consider the land in its determination of whether to grant a protection order is to identify where the Applicant resides and to ensure that Applicant is safe from any acts of violence in her place of residence.
39. The Applicant has sought the assistance of the Court in granting a protection order to protect her from the commission of acts of domestic violence. The Court has already granted an interim protection order and the purpose of the hearing is to determine whether the Court should grant a permanent protection order for the protection of the Applicant.
40. The Applicant lives with her mother but she lives permanently in (xy-country). She is only here temporarily but will be leaving Samoa when border restrictions are lifted. She has depleted her funds and has nowhere else to live. Since the issuance of the Interim protection orders all her siblings named as Associate Respondents have severed ties with the Applicant, her mother and siblings named as beneficiaries under the Protection Order. This had caused distress to the Applicant and her elderly mother notwithstanding the peace and security that they have experienced since the granting of the protection order in their favour.
41. The Applicant has cited emotional and psychological abuse as a ground for the granting of a protection order. In order for the Court to be satisfied on the balance of probabilities that there has been emotional and psychological abuse, there must be a pattern of degrading or humiliating conduct towards a complainant including repeated insults, ridicule or name calling and repeated threats to cause emotional pain.
42. After hearing the evidence, I am satisfied on the balance of probabilities that there has been since the 18^th of April 2020 repeated insults, ridicule and name calling and threats towards the Applicant by N.H and I.H The Respondents and other Associate Respondents have also uttered insulting words against the Applicant and other beneficiaries even though there has not been a pattern of degrading and humiliating conduct towards the complainant.
43. Nevertheless, after hearing the evidence, I have also found on the balance of probabilities that the Applicant and some of the beneficiaries have also uttered insulting and threatening words towards the Respondent and Associated Respondents including an admission to slapping younger members of their family as a form of discipline. Whilst reasonable force is permitted under the law, it is still an act of violence under the Family Safety Act. Whilst the Applicant has sought to excuse her behaviour on the basis of her love for her family and her right to discipline the younger generation, an act of violence can never be overlooked by the Court in its consideration.
44. Both parties are responsible for their actions and words.

CONCLUSION

45. The Interim Protection Order remains for the protection of the Applicant and the Beneficiaries and that the Respondent and all the Associate Respondents are not to commit any act of violence against the Applicant. Any act of violence includes both physical acts and the utterance of any insulting or threatening words that will cause emotional distress to the Applicant and beneficiaries including their 86 years old mother.
46. The Applicant and Beneficiaries are also prohibited from committing any act of domestic violence including the utterance of any insulting or threatening words to maintain the peace and harmony in the spirit of reconciliation reached at the end of the hearing.
    

JUDGE ATOA-SAAGA