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Lee v Anne [2012] FJMC 123; DVRO06.2012 (12 June 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF NAVUA


DVRO 06/2012


BETWEEN:


DANEI LEE
APPLICANT


AND:


SHARON ANNE
RESPONDENT


APPLICANT : Present, appeared in person
RESPONDENT: Present, appeared in person


Trial Details :
Date of Hearing: 06th June 2012
Order : 12th June 2012


ORDER


The Application


  1. The applicant filed a DVRO application on 13th April 2012. In his application he has asked for a non contact order against the respondent under sec 29 of the Domestic Violence Decree of 2009.
  2. After hearing the applicant himself and satisfied about his application, I issued only an interim DVRO order with a standard non molestation condition against the respondent and issued notice for her to appear in the court.
  3. The Respondent appeared in the court on 30th May 2012 and rejected the allegations leveled against her in the application.
  4. Thereafter I directed both parties to call their witnesses and set down this matter for hearing on 06th June 2012.

The Law


  1. The relevant laws governing this application are in Domestic Violence Decree of 2009.
  2. The purpose of enacting this decree was described in the preamble of the decree as follows.

A DECREE TO PROVIDE GREATER PROTECTION FROM DOMESTIC VIOLENCE, TO CLARIFY THE DUTIES OF THE POLICE IN THAT REGARD, TO INTRODUCE DOMESTIC VIOLENCE RESTRAINING ORDERS AND OTHER MEASURES TO PROMOTE THE SAFETY AND WELLBEING OF VICTIMS OF DOMESTIC VIOLENCE AND TO PROMOTE REHABILITATION OF PERPETRATORS OF DOMESTIC VIOLENCE AND FOR RELATED MATTERS


  1. The objects of this decree are set down in the sec 06. They are

(a) to eliminate, reduc prev prevent domestic violence;

(b) to enshe protection, safetyafety and wellbeing of victims of domestic violence;

(c) to implement the Convention on the Elimination of All Fof Discrimination Against Women, the Convention on the RightRights of the Child and related conventions; and

(d)&to provide a legally workable framework for the achievementement of (a), (b) 160;<) above


  • What is a Domesticence 3 hasdown efinition of the domestic vioc violencelence unde under this decree.

    • l>

    3.-(1) "Domestic violence" in relation to any person means violence against that person ('the victim') committed, directed or undertaken by a person ('the perpetrator') with whom the victim is, or has been, in a family or domestic relationship.


    (2) In relation to subsection (1), "violence" means any of the following –


    (a) physicjury or threatening ping physical injury;

    (b) sexual abuse or threatening sexual abuse;

    (c) damaging or threng to damaoe property of a victim;

    (d)) threatenintimidating or harr harassing;

    (e)

    (f) cauthe v apprehension or n or n or fear by -

    (i) following the victim; or

    (ii) loitering outside a workplacether place frequented by the victim, or

    (iii) entering or interfering with a th a home or place occupied by the victim, or

    (iv) interfering with property of the victim, or

    (v) keeping the victim under surveillance;

    (g) causinallowing a child to s to see or hear any of the violence referred to in paragraphs (a) to (f) inclusive;

    (h) causing another n to do anyo any of the acts referred to in paragraphs (a) to (g) inclusive toward victim.


    (3) Subject to subsection (4), causing or allowing a to see or hear violence, ace, as specified in paragraph (g) osection (2), includes putt putting the child, or allowing the child to be put, at real risk of seeing or hearing that violence.

    (4) A person who suffers the violence is not tregarfor the purposes oses of paof paragraph (g) of subse (2onor of subsectisection (3), as having caused or allowed or put the child at real risk of seeing or hearing the violence.

    (5) A single act may amount to violence for the pe of ction (1) in addi addition tion a number of acts that form part of a pattern of behavior may amount to violence even though some or all of those acts, when viewed in isolation, may appear minor or trivial.


    Facts in this case.


    9. The applicant and the respondent are business partners of Batiluva Beach Resort. Both are living in the same resort. The basis of his application is that the respondent is so alcoholic and threatening the directors, staff and the guests within the premises. In his application the applicant says that on 07th April 2012 the respondent threatened him and his staff with an axe.


    The Evidence


    1. The Applicant gave sworn evidence under oath. And called 3 other witnesses .
    2. The Applicant; He said he is afraid of himself and about his staff. The respondent is alcoholic and she yells to the people. The applicant further stated one Easter Sunday she chased him with an axe. He made a complaint about that to the police.
    3. IN his cross examination by the respondent he reaffirmed that she chased him with the axe. His police statement was tendered and marked as exhibit 01.
    4. Mr. Timoci Witness2; He said he was working in the resort. He came with his friends to the restaurant and the respondent chased them with an axe. She locked them in their room and sat outside. The witness informed the incident to the police.
    5. Mr. Solomone Witness3; He said the respondent came to the place where they were to sleep, She had an axe. She was drunk at that time.
    6. In his cross examination the respondent the witness said she was drinking whole day and he made a statement to the police about the incident.
    7. Mr. Atunacika Witness 4: He said he heard the respondent arguing with the applicant.
    8. Thereafter the applicant closed his case and I gave the rights to the respondent
    9. The respondent also gave sworn evidence and called 2 other witnesses on behalf of her.
    10. The respondent: She said she never took an axe against the respondent and on that day the applicant was threatening to kill her. The next day the police came and took statements from other people. But never took any statement from her. Also she never made a complaint about that to the police.
    11. Ms. Seniyani Witness2; She said she is working in the resort as a cook and the applicant always threatened the respondent, the applicant had told her that he would kill the respondent also.
    12. Mr. Suliasa: He said one day he heard the applicant telling Ms. Seniyani (witness 2 ) that he would kill the respondent.
    13. Thereafter the respondent closed her case.
    14. First I will consider whether the applicant can make this application under the Decree. It is important to decide that before deciding about the main application.
    15. The Sec 23(1) of the domestic violence Decree sets down the grounds for making a restraining order.

    23.-(1) A Court may make a domestic violence restraining order for the safety and wellbeing of a person if satisfied that the person is, or has been, in a family or domestic relationship with the respondent, and –


    (a) the respondent has cted, isd, is committing, or is likely to commit domestic violence against that person or against another person relevant to the cation, and


    (b) the making of the ordenecesnecessary for ther the safety and wellbeing of the person or another person relevant to the application, or both.


    1. "25">Therefore when a person makes an application he has to satisfy that he is or has been in a domestic relationship with the respondent.
    2. What is a domestic relationship? It has been interpreted in the decree as

    (a) spouse;/p>

    (b)) other y member;

    >

    (c) person who normally or rrlylarly resides in thsehold or residential facility;

    (d) boyfriend or girld;<<

    (e) person who is whor partly dependent on ongoing paid or unpaid care or a pera person who provides such care;


    27 Even though both partie bus partners they liey live in the same resort. Also the applicant in his evidence stated that that the respondent was his ex girl friend. The respondent did not reject that. Therefore I find that both parties are in domestic relationship with each other and the applicant can apply under this decree.


    28. I have already granted an interim non molestation order to the applicant on 18th April 2012. The respondent appeared after receiving the notice and rejected the allegations. In the hearing both parties gave evidence on oath and called their witnesses to prove their version of the story.


    29 Before analyzing the evidences of both parties I will consider the standard of proof in this case. Sec 46 says that standard of proof under this decree should be on balance of probabilities.


    46.-(1) Subject to subsection (2), every question of fact arising in any proceedings under this Decree must be decided on the balance of probabilities.

    F. The Findings


    30. The Applicant in his evidence said on Easter Sunday he was threatened by the respondent with an axe. He made a complaint to the police about that incident on the next day. In his complaint he stated that the respondent has stolen his mobile and in the night she was walking around his room with an axe.


    31. The other witnesses called by the applicant stated that they were also threatened by the respondent with the axe. The respondent was given the chance to cross examine the applicant and his witnesses and even then they maintained that story.


    32 The respondent rejected that she used an axe and stated that the applicant threatened to kill her. According to her this incident happened on 07/04/12. Her witnesses said the same thing. But she never made any complaint about that to the police. Neither did her witnesses about the incident.


    33 As mentioned in Sec 46 standard of proof for this case should be balance of probabilities.


    34. The applicant evidence was that he was threatened by an axe. His credibility is further confirmed by the promptness of his action and making a complaint to the police on the next day.


    35 His witnesses corroborated his story. The other witnesses called by the applicant stated on that day she was drunk and had an axe with her. They also gave statements to the police about the incident.


    36 The respondent rejected the applicant's evidence, She said she was threatened by the applicant, But she did not make a complaint about that to the police.


    37 Therefore from the evidence the evidences placed before me I find the applicant's version more satisfactory than the respondent's. I have no reason to disbelieve the Plaintiff's evidence. I am satisfied that the applicant has proved its case balance of probabilities.


    38. Now I will turn my attention to the reliefs asked by the applicant in this case.


    39 In his application the applicant asked for a non contact order against the respondent. The non contact order is to be issued under sec 29 of the Decree.


    (1) Where a Court makes, or intends to make, a domestic violence restraining order under this Decree for the safety and wellbeing of a person, the Court may include, either absolutely or on conditions specified by the Court, any of the non-contact conditions specified in subsection (2).


    (2) The non-contact conditions referred to in subsection (1) are that the respondent must not –


    (a) watch, loiter near, or pt oent or hinder access to or from, the protected person's place of residence, business, employment, educational institution, or any other place that the protected person visits often; or


    (b) follow the pred person abou about or stop or accost the protected person in any place; or


    (c) enter or remain on any or building occupied by the protected person; or


    (d) enter any land land or building or remain there when theected person is also on the land or in the building;


    (e) make any oany other contath with the protected persoether by telephone, correspondence, or otherwise), except sept such contact –


    (i) that is permitted in the domesticence restraining order made by the Court; and


    (

    (ii) that is reasonably necessary in an emergency.


    40. Since both parties are business partners I believe granting non contact order is not appropriate in this application. Even though the applicant has proved on balance of probabilities that the respondent has threatened him with an axe, if a non contact order is granted that would affect the respondent with her employment.


    41. Also I have already granted a DVRO order with standard non molestation conditions in favor of the applicant. I believe it should be enough to promote the safety of the applicant in future. Therefore I will make that order permanent


    42. The respondent is explained about the non molestation order and the consequences of breaching that order.


    28 days to appeal.


    12 June 2012


    H. S. P. Somaratne
    Resident Magistrate, Navua

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