Cartwright v Cartwright

[2007] NTSC 32

Cartwright v Cartwright [2007] NTSC 32

PARTIES:CARTWRIGHT, Annette

v

CARTWRIGHT, Mischa

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:JA 13 of 2007 (20703699)

DELIVERED:  9 May 2007

HEARING DATE:  9 May 2007

JUDGMENT OF:  RILEY J

REPRESENTATION:

Counsel:

Appellant:K Norrington

Respondent:  A Snell

Solicitors:

Appellant:Northern Territory Legal Aid Commission

Respondent:  Halfpennys

Judgment category classification:    C

Judgment ID Number:  ril0712

Number of pages:  6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Cartwright v Cartwright [2007] NTSC 32
No JA 13 of 2007 (20703699)

IN THE MATTER OF the Justices Act

AND IN THE MATTER OF an appeal against decision handed down in the Local Court at Darwin

BETWEEN:

CARTWRIGHT, Annette

Appellant

AND:

CARTWRIGHT, Mischa

Respondent

CORAM:    RILEY J

EX TEMPORE
REASONS FOR JUDGMENT

(Delivered 9 May 2007)

1. This appeal arises from a decision to dismiss an application by the appellant for a restraining order against the respondent pursuant to the terms of s 4(1) of the Domestic Violence Act. That section provides that the court may make a restraining order in circumstances where the court is satisfied on the balance of probabilities:

“(a)    that the defendant –

(i)has assaulted or caused personal injury to a person in a domestic relationship with the defendant or damaged property in the possession of that person; and

(ii)is, unless restrained, likely again to assault or cause personal injury to the person or damage the person’s property;

(b)…

(c)   that –

(i)the defendant has behaved in a provocative or offensive manner towards a person in a domestic relationship with the defendant;

(ii)the behaviour is such as is likely to lead to a breach of the peace including, but not limited to, behaviour that may cause another person to reasonably fear violence or harassment against himself or herself or another; and the defendant is, unless restrained, likely again to behave in the same or a similar manner;

(iii)the defendant is, unless restrained, likely again to behave in the same or a similar manner.”

1. The respondent is the sister-in-law of the appellant who was formerly in a relationship with the brother of the respondent.  There were children of the relationship and pursuant to orders made by the Family Court the children spent time with their father at the house of the respondent.

2. There was some tension between the appellant and the respondent and on 6 February 2007 there was a confrontation between the two.  Each of the parties then applied to the Local Court for a restraining order against the other.  A contested hearing occurred on 7 March 2007 following which both applications were dismissed with no order for costs.  The appellant appeals against that decision on the primary ground that the learned magistrate fell into error by not giving adequate reasons for decision and on the further ground that it was “not reasonably open to reject the appellant’s evidence in the circumstances where the respondent admitted an assault…