Gabriel Aubry criminal charges 'highly unlikely'... as Thanksgiving Day brawl with Olivier Martinez is deemed 'mutual combat'

They were both left battered and bruised following a vicious Thanksgiving Day Brawl.

But it is now said to be 'highly unlikely' that Gabriel Aubry will face criminal charges for his brutal fight with Olivier Martinez, the actor fiance of his former partner Halle Berry. 

According to TMZ, law enforcement sources connected to the case claim the brawl will be considered to be 'mutual combat', making it almost certain that criminal charges will not be filed. 

'Mutual combat': Law enforcement sources have claimed it is 'highly unlikely' that Gabriel Aubry (L) will face a criminal prosecution for his violent Thanksgiving Day brawl with Olivier Martinez (R)

The case is due to be sent to the Los Angeles City Attorney's Office on Thursday, but police will not make a recommendation on whether Aubry should be prosecuted.

Meanwhile, Aubry is calling for video surveillance of Halle's driveway to be released, which he hopes could prove that he did not start the altercation.

 

RadarOnline.com quotes him as saying in a sworn statement: 'I told the officers that [Martinez] was the one who attacked me, and repeatedly told them to get the security tapes from Ms. Berry's security cameras before she and Mr. Martinez deleted them. 

'During the time that I resided with Ms. Berry at the Doheny residence, I observed she had at least three cameras in the driveway, and front door areas and two in the front gate area.'

Serious: A straight-faced Halle Berry carries her daughter's pink headphones after dropping her off at school in Beverly Hills on Tuesday

Back to normal: After their disastrous Thanksgiving holiday Halle and Nahla are settling back into their routines

However, the French-Canadian model wasn't so fortunate when it came to his bid to overturn an order banning him from seeing the couple's four-year-old daughter Nahla.

The star appealed to a Los Angeles court on Tuesday to lift an emergency protective order - which banned him from going within 100 yards of Nahla, Halle and Martinez - issued in the wake of his fight with the French actor.

TMZ reported that Aubry, 36, was not granted his request to have the order ended immediately, and instead it will now expire on Thursday. 

Initially the order ran until December 3, but the judge acknowledged a clerical error meant it was only valid for two more days.

 

Should Halle wish to extend the order than she will have to appeal to the court by Thursday.

Frustrated: A recent custody case saw Halle attempt to win the right to move to Paris with her daughter, but her ex argued it would affect his relationship with his daughter

Getting more legal advice: Halle and Olivier were seen arriving at their lawyer's office together in Beverly Hills later on in the day 

The ruling came as Halle was seen looking deep in thought and shielding herself behind her sunglasses as she dropped her daughter off at school.

She was present for the confrontation between her fiancé and former lover, but is believed to have rushed her daughter inside to shield her from witnessing the brutal scenes.

Brutal scenes: Gabriel Aubry shows off his injuries in a photo taken from a restraining order he filed against Martinez

Halle's mother spoke out on Tuesday, saying she hoped 'things calm down'.

Former nurse Judith told CelebBuzz: 'This cannot go on, things have got to calm down.'

She added: 'I hope that things get better, I really hope that they do; they have got to get better.'

But when asked how her daughter was she replied: 'As far as I know Halle and Nahla are fine though.'

The fight followed a bitter custody dispute which saw Halle fail in her attempt to move to Paris with her daughter.

Both men have claimed that they were attacked by the other.

While Aubry was arrested and charged with battery after the confrontation he also came off worse for wear, sporting a shockingly bruised black eye and various injuries.

On Monday, he obtained a restraining order against Martinez, who he says should never have been involved in the handover.

According to a sworn declaration within his restraining order application, the previous night Martinez had threatened him as the three watched Nahla in her school play.

Before the fight: On Wednesday Gabriel Aubry had attended a Thanksgiving party alongside his ex Halle Berry and her fiancé Olivier Martinez

Aubry alleges Martinez whispered in his ear: 'I wish I could beat the s*** out of you right now. 

'You're lucky we're in a school right now. We're going to take Nahla right now and you're not going to follow us.'

Aubry also alleges that when he arrived to drop off Nahla at 10am Martinez told him they needed to talk before following him to the car where he attacked him.

He says that even before the fight things had seemed unusual.

'I remember thinking that is was odd for [Olivier] to be there, as he is generally not present during custody transition,' he said. 

Makign a statement? Olivier Martinez was seen wearing a new hand brace in Los Angeles on Tuseday

He's not home: A police sheriff visited Aubry's apartment block on Tuesday

It has been reported that Aubry now plans to ask the judge to ban Martinez from seeing his daughter.

'Gabe has had enough, he has now twice been accused of criminal behavior resulting in his recent arrest after a fight with Olivier Martinez on Thanksgiving,' a source close to the situation told Radaronline.

'Gabe will ask the judge to prohibit Martinez from having any contact with Nahla. 

Gabe will also ask the judge to re-instate his visitation with Nahla after Halle obtained a protective order after his arrest which doesn't allow him to have any contact with his little girl.'

Strained: Gabriel and Halle appeared tense as they visited their lawyer in the afternoon

In no mood: The couple walked several metres away from one another