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Augerea v Augerea [2022] PGDC 37; DC8048 (14 April 2022)

DC 8048

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS FAMILY JURISDICTION]

IPO No. 64 of 2021
BETWEEN

MARGARET AUGEREA
Complainant

AND

LEN SPENCER AUGEREA
First Defendant
AND

DAISY PANDAN
Second Defendant

Waigani: S Tanei

2022: 14^th of April
      

CIVIL – Application for Protection Order – Objectives and Underlying Principles of the Family Protection Act of 2013

CIVIL - Complainant in need of protection – Domestic violence committed against the complainant over a long period is sufficient to obtain protection from the Court - Required Standard and Onus of Proof –Balance of probabilities – Pre-requisite for granting of Protection Orders – Act of Domestic Violence – Likelihood of further act of domestic violence – Interim Protection Order made Permanent.

Cases Cited

Sundie v Aturoro [2017] PGDC 1 (12 September 2017)
EM v KA [2020] PGDC 22; DC4078
Miriam Noi –v- Junior Peter Wambena [2022] PGDC 23; DC8035

References
NIL

Legislation

Family Protection Act 2013

Counsel

Kamjua, N. Ms – For the Complainant

Kepo, K. Mr. – For the Defendant

RULING

14^th April 2022

Seth Tanei (Magistrate): An Interim Protection Order was issued by the Court against the Defendant on 31^st March 2021.

2. The Interim Protection Order came from a Complaint filed by the Complainant seeking Protection Orders against the Defendants.
   
3. The Complainant asked the Court to make the Interim Protection Orders of 31^st March 2021 Permanent while the Defendant asked the Court to dismiss the case and discharge the Interim Protection Orders.
4. The matter went for trial on 24^th March and the following is my ruling on whether the Interim Protection Orders should be made permanent.
   

FACTS:

5. The Complainant and the First Defendant are siblings. The Complainant is the First Defendant’s elder sister (adopted) and the Second Defendant is the First Defendant’s wife.
   
6. The Complainant says that she and her mother are subject to domestic violence by the Defendants.
   
7. On 12^th February 2021, the Defendants and the Complainant had an altercation where the Complainant sustained injuries to her body. This arose from an argument about the Defendants’ dogs.
   
8. The Complainant obtained an Interim Protection Order against the Defendants afterwards. She now wants the Court to make the Interim Protection Orders permanent.
   

ISSUES:

9. The Court is faced with the following issue;
   
   1. Whether the Interim Protection Order of 24^th March 2021 should be made permanent?

THE LAW

10. The Complainant seeks Family Protection Orders under Sections 7 and 16 of the Family Protection Act 2013.
    
11. Section 7 of the Family Protection Act 2013 provides that;
    

7. APPLICATION FOR A FAMILY PROTECTION ORDER:

(1) An application for a family protection order may be made by:

(a) the complainant; or

(b) any person on behalf of the complainant if the complainant has given his or her written consent for that person to make the application; or

(c) a qualified legal practitioner on behalf of the complainant if the complainant has given his or her written consent for that practitioner to make the application; or

(d) a police officer on behalf of the complainant if the complainant has given his or her written consent for that officer to make the application,

(2) Subject ta Subsection (3), an application far a family protection order must be made in the prescribed form,

(3) A failure to comply with Subsection (2) does not invalidate the application,

(4) An application to a court for a family protection order may be made -

(a) orally; or

(b) in writing.

(5) If the application is made orally, the court must reduce the application into writing as soon as practicable in the prescribed form.

12. Section 16 of the Family Protection Act 2013 provides that;
    

16. COURT MAY MAKE PROTECTION ORDER.

(1) Following an application made under Section 7, a court may make a protection order against a defendant if the court believes on reasonable grounds that -

(a) the defendant has committed an act of domestic violence against the complainant; or

(b) the defendant is likely to commit an act of domestic violence against the complainant.

(2) In deciding whether to make a protection order, the court must take into account the following:

(a) the need to ensure that the complainant is protected from domestic violence; and

(b) the safety and well-being of the complainant; and

(e) the safety and well-being of other family members; and

(d) any other matter the court considers relevant.

(3) The court may include the name of a family member in a protection order made for the benefit of the complainant, if the court believes on reasonable grounds that the defendant has committed, or is likely to commit an act of domestic violence against that family member.

13. In the cases of Sundie –v- Aturoro [2017] PGDC 1, EM v KA [2022] PDGC 22; DC4078 and Noi –v- Wambena [2022] PGDC 23; DC8035, the Courts held that the intent of the Family Protect Act 2013 is to protect members of a family or people in a family setting from any form of domestic violence by other members of the family.
    

EVIDENCE

14. The matter went to trial. The parties relied on Affidavits during trial. The following Affidavits were tendered into evidence;
    
    1. Complainant’s Affidavits
    1. Affidavit of Margaret Augerea filed on 4^th March 2021 (Exhibit C1)
    2. Affidavit of Theresa Augerea filed on 2^nd June 2021 (Exhibit C2)
    3. Affidavit of James Soho Sali filed on 2^nd June 2021 (Exhibit C3)
    4. Affidavit of Norris Tupagogo filed on 2^nd June 2021 (Exhibit C4)
       
    2. Defendant’s Affidavits
       1. Affidavit of Len Spencer Augerea filed on 10^th June 2021 (Exhibit D1) (withdrawn)
       2. Affidavit of Daisy Pandan filed on 5^th May 2021. (Exhibit D2)
       3. Affidavit of Len Spencer Augerea filed on 19^th April 2021 (Exhibit D3)
       4. Affidavit of Len Spencer Augerea filed on 22^nd March 2022 (Exhibit D4)
          
15. Upon closer examination of the Exhibits before the Court, I realised that Exhibit D1 was not in the Court file so when the matter returned on 11^th April 2022 for ruling I vacated ruling and requested the Defendants’ counsel to provide a copy of the Affidavit on 12^th April 2022.
    
16. On 12^th April 2022, Mr. Kepo of Counsel for the Defendants appeared and advised the Court that that particular Affidavit was wrongly tendered into Court and he wishes to withdraw that Affidavit.
    
17. The Defendant relies only on Exhibits D2, D3 and D4.
    

DISCUSSION ON EVIDENCE

18. From the Complainant’s affidavit, the Court notes the following.
    
19. The parties in this matter are immediate relatives. The Complainant is the First Defendant’s elder sister and the Second Defendant is the First Defendant’s partner. They all live at the same property in Gerehu.
    
20. The Complainant alleges that she and her mother are subjected to domestic violence by the Defendants. That is, they were subject to ridicule and intimidation since 2010.
    
21. The Complainant says that on 12^th February 2021, the Defendants’ dog was let lose by the First Defendant. They fought as a result of this and the Complainant sustained injury on her head.
    
22. On the other hand, the Defendants’ evidence say that they have never subjected the Complainants to any form of domestic violence. It was the Complainant who provoked them to react the way they did.
    
23. The Defendants said that they are subject to ridicule and bad mouthing by the Complainants.
    

FINDING OF FACTS

24. The evidence in this case will be dealt with on the balance of probabilities as any civil case would.
    
25. I find that the parties are family members and that they live on the same property at Gerehu, National Capital District.
    
26. There was an argument between the parties on 12^th March 2021 where the Defendants’ dogs were let lose by the Defendants. This led to an altercation between the Complainant and the Defendants. They also used vulgar language prior to that.
    
27. The Complainant’s witnesses confirmed that there was a fight between the Complainant and the Defendants on that day.
    
28. I also find from the evidence that the parties were and are never at good terms. They have an existing dispute regarding the ownership of the property and are not on talking terms. The Complainant’s mother Theresa Augerea kept a diary of what happens between the First Defendant and their other family members. There is no evidence from the Defendants to dispute the events in the diary
    
29. After weighing out the evidence I am of the view that there is evidence of Domestic Violence by the Defendants, especially the First Defendant.
    

APPLICATION OF THE LAW TO THE FACTS

30. Having found that the Complainant is subject to Domestic Violence by the Defendants, I now apply the law in section 16 of the Family Protection Act 2013.
    
31. Section 16 (1) of the Family Protection Act provides that the Court may grant Protection Orders if it finds that the Defendant has committed an act of Domestic Violence and that the Defendant is likely to Commit an act of Domestic Violence against the Complainant.
    
32. I note that the Defendants raised the Defence of provocation. However, because this matter came before this Court as a Civil matter, the Defence of Provocation does not stand. There is no provision in the Family Protection Act that provides for Provocation as a Defence in matters where Family Protection Orders are sought under the Family Protection Act 2013.
    
33. I also note the Defendants submissions that they have not breached the Interim Protection Order and that there is no need for a Permanent Protection Order. However, the evidence shows that the parties have not been in good terms and they have an existing dispute as to the ownership of the property they are on. Thus, it is my view that that the existing dispute increases the risk of parties entering into another argument in the future.
    
34. The evidence shows that the Defendants have committed an act of Domestic Violence and are likely to commit an act of domestic violence against the Complainant or may commit an act of Domestic Violence against the Complainant and her mother. The safety and well-being of the Complainant and her mother must be protected.
    
35. I will therefore issue a Permanent Protection Order against the Defendants which will last for two (2) years pursuant to section 19 (3) of the Family Protection Act 2013.
    

CONCLUSION

36. From the above, the Court is satisfied that the Complainant and her mother were subject to Domestic Violence and run the risk of being subjected to Domestic Violence in the future.
    
37. While Permanent Protection Orders will be issued against the Defendant, it is also the Complainant’s duty to respect the Defendants. Just as the law does not allow domestic violence, it also does not allow one party from provoking others. Human beings react to statements made against them.
    
38. The parties in this case are educated adults and are expected to know what to say and do at the right time.
    
39. I note in this case that parties are very close family members. With the help of their lawyers, they should find a way to amicably settle the differences they have so that lasting peace can prevail among them. They should consider mediation, counselling or other means to resolve their differences.
    
40. It is entirely up to the parties to resolve their differences and bring their shattered relationship back together. It is thus my suggestion that parties should seriously look at amicable ways to resolve their differences and mend their relationship as a family. Only then will peace truly come to them.
    

COURT ORDERS

41. The following are the formal orders of the Court;
    
    1. The Interim Protection Orders of 31^st March 2021 are made Permanent.
       

Lawyer for the Complainant: Public Solicitor

Lawyer for the Defendant: Axis Pacific Legal