PacLII Home | Databases | WorldLII | Search | Feedback

Papua New Guinea District Court
You are here:  PacLII >> Databases >> Papua New Guinea District Court >> 2022 >> [2022] PGDC 23

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Noi v Wambena [2022] PGDC 23; DC8035 (8 March 2022)

DC8035

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS FAMILY JURISDICTION]

IPO NO 3 OF 2022
BETWEEN

MIRIAM NOI
Complainant


AND

JUNIOR PETER WAMBENA
Defendant


Waigani: O Ore Magistrate


2022: 21 February & 08 March 2022
      


CIVIL – Application for Protection Order – Sections 7 & 16 Family Protection Act 2014


CIVIL – Complainant in need of protection – Domestic Violence committed against Defendant – Likelihood of further act of Domestic Violence on Defendant very high – Protection Orders granted – Interim Protection Orders made permanent.


PNG Cases Cited
Sundie v Aturoro [2017] PGDC 1 (12 September 2017)


Overseas Cases


References


Legislation
District Court Act
Family Protection Act 2013


Counsel
Complainant – In Person
Defendant – In Person

DECISION

08 March 2022


  1. O Ore, Magistrate: On the 10th of January 2022, Interim Protection Orders were made by this Court for the protection of the Complainant.
  2. The Complainant is now asking the Court to make Permanent Protection Orders by making the IPO permanent.
  3. This matter came before me for trial or hearing on 21st February 2022. This is now my decision after hearing parties.

FACTS


  1. The Complainant and the Defendant have been married for over three years. They have no children from their marriage. The characteristic of their marriage is one akin to a defacto relationship/marriage and his recognised by society and their respective families and friends.
  2. Their marriage has been marred with domestic violence occasioned on the Complainant by the Defendant.
  3. Most recently on the 02nd of January 2022, the Defendant accused the Complainant of having an affair with another man and physically assaulted her by grabbing hold of a bicycle wheel metal frame and hit her on her head with it.
  4. The hit caused a deep cut on the left side of the Complainant’s head and she fell down. Whilst she was bleeding and lying on the ground, the Defendant continued to assault her. He held on to her hair and dragged her and at the same time attempting to push his fingers into her mouth and rip off her tongue.
  5. The Defendant also punched her a number of times on her face, jaw and head and then held her by the neck tightly casing her to choke. He then pushed her to the ground and stepped on her neck and pressed down hard with his foot.
  6. The Complainant has had enough of this violent behaviour and fears for her life and has come to Court for protection.

ISSUE


  1. Whether the Interim Protection Orders granted on the 21st February 2022 should be made permanent?

RELEVANT LAW


  1. Sections 7 and 16 of the Family Protection Act 2013 provides the base on which a person may apply for a protection order and the power to the Court to make protections orders. Sections 7 and 16 are in the following words:

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.


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.


  1. Under section 16 (1) (a) (b) of the FPA, the Court may make a protection order against a Defendant if it believes that the Defendant has committed an act of domestic violence against the Complainant or that the Defendant is likely to commit an act of domestic violence against the Complainant in the near future.
  2. As per the case of Sundie v Aturoro [2017] PGDC 1 (12 September 2017), evidence has to be weighed on the balance of probabilities.

EVIDENCE

  1. Miriam during hearing relied on her Affidavit in Support sworn on 07th January 2022.
  2. The Defendant during hearing relied on his Affidavit dated 11th February 2022.

ANALYSIS OF EVIDENCE


  1. Miriam’s Affidavit shows that she has been the subject of Domestic Violence since she got married to the Defendant. His latest abuse almost led to her losing her life.
  2. She says she sought assistance from the Family Sexual Violence Unit because she was seriously assaulted by the Defendant on the 02nd of January 2022 at Tuna Bay. She says that the Defendant assaulted her because he suspected her of having an affair with another man.
  3. He assaulted her by hitting her head with a metal bicycle wheel frame. When she fell down, he continued to assault her by grabbing her hair and dragged her on the ground whilst she was bleeding from the hit. Whilst dragging her on the ground, he tried to push his fingers into her mouth and rip off her tongue and mouth. He then punched her face, jaw and head several times and tightly held her by the neck causing her to choke. He then pushed her to the ground and stepped on her neck and pressed down hard with his foot.
  4. She says this is not the first time he has abused her. Photographs attached to her affidavit show the extent of the injury she sustained. It shows a 1cm deep laceration to her skull. It is supported by a medical report attached as well.
  5. Junior Wambena in his statement says that the incident that led to the IPO was Facebook related. He says that Miriam had uploaded a photo of herself on Facebook and a close neighbour responded saying “you look sharp! Pretty, sweet and nice”.
  6. This led to him becoming curious. When he asked Miriam about her Facebook post, she responded negatively and said he was jealous. This provoked him. She even told their neighbours that he was jealous of herself and her face book friend.
  7. He says that this is an issue which they can solve at their own level, at their home and in bed. He says that the arguments and fighting happen in all younger marriages between 20-40 years. When marriages go beyond this age group, respect and understanding automatically comes and it will result in blessings and true happiness in life.
  8. He asks that the IPO’s be set aside and they sort it out themselves. He also asks the Court to give some conditions so they can learn from their mistake and improve on their marriage life.
  9. In reply, Miriam says that the comments made on her photo which was uploaded on Facebook did not include the word sharp.

DISCUSSION OF LAW AND EVIDENCE


  1. The Defendant in his Affidavit does not deny assaulting the Complainant. He says that he was provoked into assaulting the Complainant. His enquiry into his wife’s (Miriam) activity on Facebook was met with negative response from her. It is understandable that the Defendant felt the way he did when he saw someone commenting about his wife on Facebook. However, there is no law that gives him the right to assault her the way he did.
  2. If he feels aggrieved by this, there are options available to him. He can seek counselling or seek the assistance of the Family and Sexual Violence Unit. Exerting domestic violence on another person is against the law. Such actions must not be condoned.
  3. From the manner in which the Defendant had assaulted the Complainant, I am not satisfied that this is a simple straight forwarded matter that can be settled at home or as put by the Defendant “settled in the bed room”. The Defendant in his statement seems to take this proceeding less seriously. To me it seems he does not understand the serious nature of his actions that have led to this matter being brought before this Court.
  4. Arguments do happen in marriages and relationships. It is a common phenomenon worldwide. However, when domestic violence comes into the picture, the law simply does not allow for it. The law views this act as illegal.
  5. After careful consideration of the evidence by both parties, I am satisfied that domestic violence was committed against the Complainant and also that there is a high possibility of a reoccurrence of domestic violence against the Complainant in the future.
  6. Because of the above, I will make the IPO permanent and make the following Family Protection Orders below.

COURT ORDERS


  1. I therefore make the following orders;
    1. The Interim Protection Orders (IPO) of 10th January 2022 are made permanent and applies for a period of 12 months commencing on the date of service of the order on the Defendant and expiring at the end of that period unless renewed, revoked or varied.
    2. The Permanent Protection Order does not stop the Complainant, Defendant and their respective family members from meeting together for the purpose of mediation or counselling.
    1. Anyone who refuses to comply with or breaches the Orders of this Court shall immediately be arrested and brought before this Court pursuant to Section 20 (1) of the Family Protection Act and if found guilty for contempt of Court, shall either be committed to prison in Bomana for no more than 3 years in hard labour or pay a Court fine of no more than K10,000.00

Lawyer for the Complainant: Complainant in Person
Lawyer for the Defendant: Defendant in Person

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/pg/cases/PGDC/2022/23.html