Andris Sigismunds Bilkins v James Wingfield Nixon No. SCGRG 92/1645 Judgment No. 3571 Number of Pages 4 Criminal Law and Procedure

[1992] SASC 3571

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA COX J

CWDS
Criminal law and procedure - particular offences offences against the person - common assault - husband and wife had joint custody of two-year-old child - arrangement for husband to have child for long weekend, but wife decided to shorten the access and attempted to remove the child from the husband's house - whether husband lawfully entitled to prevent his wife from removing the child - Magistrate's finding that husband was guilty of assault upheld.
Justices - jurisdiction and procedure generally procedure - Repetitious and barely relevant cross-examination - what the court may do about it.

HRNG ADELAIDE, 3 August 1992 #DATE 27:8:1992
Counsel for appellant:     Mr C J Kourakas
Solicitors for appellant:    Douglas Wardle
Counsel for respondent:     Ms M Guy
Solicitors for respondent: Crown Solicitor

ORDER
Appeal dismissed.

JUDGE1 COX J In November 1990 the appellant was living at Hyde Park and his estranged wife at McLaren Vale. There was one child of the marriage, Aris, born in April 1988. Mrs Bilkins had Aris most of the time but he also stayed with his father on occasions. There was no court order about custody or access; the appellant and his wife simply made arrangements about access among themselves, evidently on an ad hoc basis. One such arrangement related to the weekend of 17 November 1990. That was a Saturday and it was agreed that the appellant would pick up Aris after he finished work that morning. It seems clear that the appellant was to return the child to his mother the following Tuesday morning, November 20. However, Mrs Bilkins was in Adelaide on the Monday and she decided that it would be more convenient - "logical", was the way she put it - for her to take Aris back to McLaren Vale with her that evening. She telephoned the appellant to let him know. He was far from acquiescent. He protested vigorously. Nevertheless Mrs Bilkins turned up at the Hyde Park house in the evening. The appellant let her in. He allowed her to see the child but told her that she was not to take him away. Mrs Bilkins found this quite unacceptable. She picked up the child in her arms and walked towards the front door, making it plain that she was leaving with the child. The appellant remonstrated with her. He arrested her progress. There was some sort of scuffle. The appellant said that he was simply barring her way but Mrs Bilkins described a fairly serious assault. It was made plain to Mrs Bilkins that she would not be allowed to take the child that evening - he would be returned to her the next morning in accordance with the prior arrangement - and after a time she left empty handed. She reported the matter to the police and the appellant found himself facing a charge of common assault (Criminal Law Consolidation Act s.39). He defended the charge but the learned Stipendiary Magistrate found him guilty. It is an indication of where the Magistrate's sympathies lay that he did not record a conviction. He imposed a fine of $300 with costs. The appeal is against the finding of guilt. 2. Most of the relevant facts were not in great dispute, including the transfer arrangement that was originally made and Mrs Bilkins's unilateral decision to change it for reasons that evidently appeared to her to be entirely reasonable but which her husband considered to be high-handed and unfair. Where the witnesses diverged sharply was on the matter of the appellant's behaviour when Mrs Bilkins was in the hallway with Aris on her hip. Her evidence was that the appellant said, "You're not going. There is no way you are going to take him," and thereupon assaulted her. He grabbed her by the wrist and twisted her arm back forcibly and struck her with his open hand across the neck and head. She kept on walking and he grabbed her again. He hit her on the shoulder and slammed her hard against the wall. He said, "If you try that again, I'll break your neck." 3. Mrs Bilkins then gave up. She comforted the child, who by this time was screaming, and then left the house. She described the appellant as extremely angry. The appellant's version was quite different. He said that he grabbed his wife by the wrist and she spun around. She again attempted to leave so he took hold of her wrist again. It was very unlikely that he made contact with her neck - certainly not deliberately - and he did not push her into the wall. He simply wanted to stop her removing the child from the house. He was really just hindering her movement to the door. 4. There was a small amount of relevant evidence from other witnesses but the case largely depended upon the view the learned Magistrate took of Mrs Bilkins and the appellant. So far as the fracas itself was concerned, he found that the appellant behaved substantially as Mrs Bilkins had alleged. The appellant was angry and upset, with much justification indeed, and he lost his temper. He was determined to stop his wife from walking out the door with Aris. There was much more to it than grabbing her on the wrist a couple of times.
    "Rather, I accept her evidence that there was a serious
    altercation. I accept that he grabbed her by the arm and
    slapped her on the left side of the neck. I find it proven
    beyond reasonable doubt that he then twisted her arm and after
    doing that pushed her in the vicinity of the left shoulder
against the wall." Hence the finding of guilt. 5. Mr Kourakas, who appeared for the appellant in this Court, did not challenge the learned Magistrate's finding as to the appellant's physical actions. His case on the appeal was that the appellant was nevertheless doing no more than the law entitled him to do. He was simply enforcing, with all necessary moderation, the custody arrangement that the parties had made two or three days earlier, and he was entitled to keep the child until the Tuesday whether his wife liked it or not. He used no more force than was necessary to achieve that legitimate purpose. 6. I cannot accept that submission. Because there were no court orders dealing with custody and access, the parties were to be taken as having joint custody and guardianship. See s.63F of the Family Law Act. That meant that, when the marriage broke up, they either had to come to some agreement among themselves about the child's living arrangements and access or go to the Family Court for suitable orders. The one thing that they could not do, vis-a-vis one another, was to settle their differences by force. It was wrong of Mrs Bilkins to attempt to take the child on the Monday night when the appellant had made it very plain that he wished to adhere to the original arrangement. So far as I can see, he would have been within his rights had he refused to let her into the house. However, he did let her in and she picked up the child and attempted to leave and, in my opinion, there was nothing that the appellant could lawfully do to stop her. There is no sound analogy between this case and a situation of self-defence, or of preventing forceful interference with the appellant's lawful custody by a stranger, or even of preventing his wife from taking the child out of the jurisdiction or removing him for the evident purpose of causing him harm. I have every sympathy with the appellant, as the learned Magistrate had, but his proper response in the circumstances was to swallow his anger and consult a solicitor. In my opinion, the argument that the appellant was entitled to use force to prevent his wife from taking the child away must be rejected. 7. I might add that, even on the appellant's own case about the legal position, the finding of guilt would be unassailable. He obviously used far more force than was necessary to restrain his wife from leaving the house. 8. For these reasons the appeal must fail. I should say a word about the way the case was conducted before the learned Magistrate. The real issue turned on the nature and degree of force actually used by the appellant, and his state of mind, in the passageway - no more than that. A certain amount of background evidence was appropriate to set the scene and show the general relationship between the parties, and that was amply supplied by the first witness, Mrs Bilkins. It did not take many questions to establish that she was a woman of uncommon determination and single-mindedness, with an inflexible attitude, at least so far as the matters of custody and access were concerned, and a complete inability to see that her husband might reasonably have a different view on those subjects. She was plainly insensitive to his disappointment and resentment over her attempt to change their access arrangement in the course of the week-end simply because it suited her to change it. So much was relevantly brought out by the cross-examiner. It was also proper for defence counsel to put his client's case that Mrs Bilkins's evidence was influenced by a desire to secure a favourable order in the pending custody litigation. However, Mrs Bilkins was also asked a great number of questions about the marriage generally, and about her and her husband's behaviour and attitudes on other occasions, before and after this incident, and so were several of the other witnesses. A lot of the evidence was hearsay, even surmises or expressions of opinion about the character and motives of the appellant or his wife. None of this repetitious detail - I pass over what was plainly inadmissible - could have assisted the learned Magistrate in reaching his decision on what was a quite narrow question. The transcript occupies 178 pages. Two thirds of that, probably a half, would have been ample. I think, with respect, that the learned Magistrate should have intervened and made it plain that the assault proceedings were not to be turned into a dress rehearsal for the custody hearing in the Family Court. It is not enough that the ingenuity of counsel might be able to fashion some relevant though remote connection between a lot of these questions and the assault issue or perceive some tenuous, insubstantial bearing upon a witness's credit. The test in such a situation soon becomes one, not of bare, theoretical relevance, but of probative value - relevance plus weight - and, rather than listen to hours of this quite unhelpful material, from defence and prosecution witnesses alike, the Magistrate would have been entirely justified in putting an end to it, if necessary on his own initiative. In my opinion, he should have done so. 9. The appeal is dismissed.