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.”


[2] 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.


[3] 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 upon the applicant”.


[4] The only evidence placed before the court came from the parties themselves. They each filed affidavits and then were cross-examined on those affidavits. There was a limited degree of agreement between them about events leading up to the confrontation, although they each perceived that the other had acted inappropriately and from dark motives.


[5] The parties disagreed as to the events which occurred in the course of the actual confrontation. The respondent said she waved her finger in front of the appellant who was then seated in her car. She said the appellant “lashed out at me, hitting me on the side of the face, at which time I reacted in self-defence by hitting her back with an open hand”. On the other hand the appellant said that the respondent “had her finger in my face” and “I pushed her hand out of my face” and “she came back swinging punches at me but because I had my window half wound up she couldn’t get at me, so she grabbed me by the shirt and dragged me out the window”.


[6] The reasons for decision provided by the learned magistrate were succinct. They were as follows:
“Well, in my view there has been clearly some tension between the parties for some time. And on this particular night that tension has boiled over and has caused both parties to behave in an inappropriate manner. I only have the evidence of Annette Cartwright and Mischa Cartwright, I don’t have any independent evidence to corroborate either party’s evidence. And I find both explanations of what might have happened on that night, and only they know, to be plausible. It may be that perceptions have caused people to think in different ways. It may be that because tempers were flared that both Annette and Mischa’s view of what happened has been coloured.
But it is the court’s – the court has to be satisfied on the balance of probabilities that one or the other is more likely and given what I have before me, I cannot be satisfied that one or the other is more likely and therefore both applications must be dismissed. There will be no order as to costs.”


[7] The complaint of the appellant is that the learned magistrate did not address the issues raised by the parties. The concern is that the appellant cannot know the basis upon which she failed in her application for a restraining order. The evidence before her Honour included a claim by the appellant that the respondent had assaulted her and an admission by the respondent that she had hit the appellant but, as she claimed, in self-defence. The learned magistrate did not address these issues. She did not address the claim that an assault was apparently admitted on the face of the evidence. She did not address the question whether self-defence arose on the basis of the evidence before her and in the circumstances claimed by the respondent and, if it did, whether it was relevant to the provisions of the Domestic Violence Act. The issue was not argued before her and the failure is understandable in the circumstances. However, if it was open on the evidence her Honour should have made it clear that she so found and addressed that issue.


[8] In addition, her Honour did not address whether there was “provocative or offensive” behaviour on the part of the respondent towards the appellant in a domestic relationship. She did not address the issues raised under s 4(1)(c) of the Act. Further, she did not address the issue of whether, unless restrained, the respondent would be “likely again to assault or cause personal injury to the person” as required by s 4(1)(a)(ii) or whether, unless restrained, the respondent would be “likely again to behave in the same or a similar manner” as provided for in s 4(1)(c) of the Act.


[9] As I observed in Powell v Winzar [2002] NTSC 7 at [9]:

“It is essential that a judge or magistrate should give reasons for decision sufficient for the parties to understand the basis of the verdict: Mobasa Pty Ltd v Nikic (1987) 47 NTR 48. A failure to give adequate reasons is an error of law: Papps v Police (2000) 77 SASR 210. The reasons of the judge or magistrate need not be ‘a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process’ but the obligation is at least ‘to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues’: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In Carlson v King (1947) 64 WN (NSW) 65, Jordan CJ said at 66:

‘It has long been established that it is the duty of a court at first instance, from which an appeal lies to a higher court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision.’”


[10] The reasons for decision provided by the learned magistrate made it clear that she was unable to choose between the competing versions of events provided by the parties. However that does not provide a complete answer to the claim of the appellant. In her submission to the learned magistrate the appellant asserted that the matters which were the subject of agreement as between the parties led to a conclusion that an “assault” had occurred for the purposes of s 4(1)(a)(i) of the Domestic Violence Act or, alternatively, that it led to a conclusion that the respondent had behaved in a “provocative or offensive” manner towards the appellant. Each of those assertions should have been addressed. They were not. In the event that an “assault” was found or alternatively “provocative or offensive” behaviour on the part of the respondent was found then the learned magistrate should have moved on to consider whether the requirements of s 4(1)(a)(ii) had been satisfied or, in the alternative, the requirements of s 4(1)(c)(ii) and (iii) had been satisfied. She did not go on to consider those matters. The appellant cannot know why her application was not successful. All she knows is that she was unsuccessful.


[11] In my view there was a failure to give adequate reasons for decision. That conclusion leads to the result that the appeal must be allowed. The matter should be referred back to her Honour for the provision of reasons and I make that direction.