Colquhoun v Children's Court [2013] NSWSC 65

Supreme Court New South Wales

Medium Neutral Citation: Colquhoun v Children's Court [2013] NSWSC 65 Hearing dates: 4 February 2013 Decision date: 08 February 2013 Jurisdiction: Common Law Before: Harrison J Decision: 1. Order that the proceedings in the Children's Court of New South Wales at Illawarra, Port Kembla 6-7/2011 be removed into this Court. 2. Order that Magistrate Blewitt be prohibited from further hearing those proceedings. 3. Remit the matter forthwith to the Children's Court to be heard by an alternative magistrate according to law. 4. I make no order as to the costs of these proceedings. Catchwords: PROCEDURE - courts and judges generally - bias - apprehended bias - application to remove magistrate from hearing proceedings in the Children's Court Cases Cited: Gillett v Robinson [2012] NSWSC 990 Hamod v State of New South Wales and Anor [2011] NSWCA 375 Markisic & Anor v Middletons Lawyers [2007] NSWSC 1147 Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 Category: Principal judgment Parties: Darren Colquhoun (Plaintiff) Children's Court (First Defendant) Director-General, Department of Family and Community Services (Second Defendant) Representation: Counsel: M W Anderson (Second Defendant)

Solicitors: Crown Solicitor (Second Defendant) File Number(s): 2012/192909 Publication restriction: Nil

Judgment 1HIS HONOUR: Mr Colquhoun is a party to proceedings in the Children's Court that are concerned with disputed claims for access to his young son. He is unrepresented in those proceedings and appeared for himself as well in this Court. The mother and the Director-General of the Department of Family and Community Services are also parties to the Children's Court proceedings. Only the Director-General appeared in opposition to Mr Colquhoun's claims before me. 2The boy was in his mother's custody until a date in December 2010 at which time he was taken into care. The Children's Court proceedings were commenced a short time after that in early 2011 and have been heard and effectively case-managed by Magistrate Blewitt at Port Kembla ever since. On 23 November 2012 his Honour confirmed an earlier order that he had made setting the matter down for final hearing before him commencing on 5 February 2013, with an estimate of ten hearing days. Up to and including 23 November 2012, the case had notably come before his Honour on no less than approximately thirty-five occasions for the purpose of dealing with numerous contested claims for interlocutory relief and other orders. 3Mr Colquhoun commenced these proceedings by summons filed on 10 October 2012. He asserts that Magistrate Blewitt has so far conducted the proceedings in a way that gives rise to a reasonable apprehension of bias against him. Mr Colquhoun seeks an order that his Honour be removed from his position as the presiding magistrate at the final hearing in the Children's Court. Although Mr Colquhoun has on one view conducted the proceedings before me upon the basis that his Honour has demonstrated actual bias against him, that claim was ultimately not pursued and was in any event entirely without merit. Mr Colquhoun's summons also sought orders quashing or setting aside all previous interlocutory orders made by his Honour. That claim was expressly and uncontroversially abandoned in this Court. 4Because the matter came before me on the last day before the hearing was due to commence in the Children's Court, I pronounced my orders on that day and indicated that I would furnish my considered reasons for judgment in due course. Mr Colquhoun and the Director-General each expressly endorsed that approach. The orders that I made were relevantly as follows: 1. Order that the proceedings in the Children's Court of New South Wales at Illawarra, Port Kembla 6-7/2011 be removed into this Court. 2. Order that Magistrate Blewitt be prohibited from further hearing those proceedings. 3. Remit the matter forthwith to the Children's Court to be heard by an alternative magistrate according to law. 4. I make no order as to the costs of these proceedings. 5My reasons for making those orders follow. 6Mr Colquhoun swore two affidavits, which were read without objection. The structure of these affidavits consisted of a series of complaints about Magistrate Blewitt made by reference to the transcript of the proceedings before him on many of the occasions I have mentioned. Most of Mr Colquhoun's complaints were trivial and inconsequential and were in many cases the product of Mr Colquhoun's perception that he was treated less favourably and disadvantageously by his Honour because of his status as a self-represented party. 7One example of this was Mr Colquhoun's feeling that his Honour was prepared to take an informal or casual approach to the service of evidence by the lawyers who opposed him, in contrast to the requirement that he formally file documents in the court registry and serve them strictly according to time limits for doing so. Related to this was Mr Colquhoun's complaint that a failure by his opponents to provide him with this type of material in a timely way had resulted in corresponding difficulties for him in meeting his own procedural obligations. 8Another example is to be found in the way Mr Colquhoun's opponents and his Honour referred to sections of the legislation without providing him with a copy of what they were referring to and without either giving him an opportunity to look up the sections or explaining them to him then and there in court. Mr Colquhoun asserted that his Honour's failure to intervene in order to even up the scales in his favour was a demonstration of at least an apprehension of bias against him. 9On another occasion Mr Colquhoun sought an order that the courtroom be cleared of all legal personnel then present who were not connected with his case. He insisted that a closed court meant that only the parties and members of the profession who represented them should be permitted to remain in court when his matter was proceeding. He had many acquaintances in the legal profession and the public dissemination of his private family matters by uninvited strangers to the litigation, even if lawyers with business at court, was a possibility about which he felt too strongly to let pass. His Honour's disinclination to comply with Mr Colquhoun's request marked out his Honour as apparently unfavourably disposed to his cause. 10Mr Colquhoun also complained that his Honour was not prepared to quarantine or censor the provision of material to a court appointed clinician to which he objected as false and misleading and correspondingly inimical to his case. Mr Colquhoun was not readily able to accommodate the proposition that there were likely to be several competing versions of the facts that were relevant in the case and that his Honour would ultimately have to decide which, if any, of these competing versions was correct. An example of Mr Colquhoun's concerns in this context is to be found in what passed between him and his Honour as long ago as 8 March 2011 in these terms: "COLQUHOUN: But my application was your Honour that you would stand aside because I believe that you would be truly bias [sic] if you were to read this, my application with you if you're going to read this false affidavit that has no annexures and obviously is not accurate in itself and it's only there to create a bias against yourself to myself which I think is totally unfair, I would then have to ask you to stand aside due to bias. HIS HONOUR: Well that would be the same position if any Magistrate having to read that material. COLQUHOUN: That's right your Honour. HIS HONOUR: So why am I in any different position? COLQUHOUN: You're in no different position, what I'm pointing out to you is that's put through to create bias on yourself to myself." 11Mr Colquhoun complains that on yet another occasion his Honour heard contested matters that were before him in an order that Mr Colquhoun did not expect and which caused him some inconvenience. However, reference to the relevant transcript shows that his Honour was perfectly reasonable in the way that he treated Mr Colquhoun on the occasion in question: "HIS HONOUR: Well it matters little to me Mr Colquhoun whether we do your application first or the assessment documents second, both matters I hope to resolve today. If you're prepared to meet the contact issue first then I have no objections to dealing with that matter first and the Court will make whatever allowances it can in relation to your status of your files and as far as allowing time for you to prepare yourself within the confines of today's hearing. A day has been set aside to resolve these issues and the Court is quite prepared to give you some latitude but I stress it's important that these matters be resolved today rather than just drag on but as I say, I repeat, I've got no problems with dealing with the contact issues first." 12On another occasion Mr Colquhoun complained that matters were heard in his absence and while he was outside waiting for his case to commence. A review of the transcript reveals that one of Mr Colquhoun's opponents did hand up a document to his Honour when Mr Colquhoun was waiting outside. However, his Honour was patently unprepared to proceed until Mr Colquhoun was present in court, which immediately occurred when he was called in. The procedure on that day was an example of what regularly occurs in courts everywhere on a daily basis. 13Mr Colquhoun referred me to several other incidents that he considered were examples of his Honour's unfair and apparently biased attitude towards him. It is unnecessary to refer to all of these events. It is fair to say that Mr Colquhoun was in many cases ultimately prepared to recognise and in most cases to accept that Magistrate Blewitt was doing no more and no less than his best to accommodate the interests of all parties to what was very emotionally charged litigation without favour to anyone. It is my observation that his Honour managed in difficult circumstances to do just that. Mr Colquhoun was not himself prepared however to concede that his Honour appeared to be unbiased in all of his dealings with him. 14The matters to which Mr Colquhoun directed my attention appeared to me to be inconsequential and I attempted to say so. There were some matters, however, that were potentially worthy of examination. I accordingly indicated to Mr Colquhoun that I was more interested to explore the effect, if any, that his Honour's comments and conclusions on 9 May, 22 June and 23 November 2012 might have had upon an objective and disinterested bystander. There are 63 pages of transcript dealing with the proceedings on the first of those days and far less on the others. It is not possible in these reasons accurately to reproduce the flavour of what occurred in any summary of the proceedings and a complete reproduction of the transcript is not practical or particularly convenient. Doing the best I can, the following matters seem to me to warrant some consideration. 15On 9 May 2012 his Honour considered an application by Mr Colquhoun for an increase in contact with his son pending final resolution of that and related issues. The application had been lodged on 7 March 2012 and Mr Colquhoun sought an increase in contact from weekly to overnight contact fortnightly. Both the child's mother and the Director-General opposed the application. His Honour analysed the evidence and submissions in a careful fashion. It would appear that the evidence included affidavits from three of Mr Colquhoun's children from a previous relationship. His Honour referred to that evidence in the following passage from his judgment: "In relation to Mr Colquhoun's three children, their affidavits have been filed in these proceedings and they are the adult children now.... Mr Colquhoun's asks rhetorically, I think, that when one looks at their current status in life he is proud of their achievements and asks rhetorically whether he's responsible for their achievements in life. Those three, now adults, but children in the affidavits that have been filed in the Family Law Court proceedings show matters that are of grave concern. It is quite clear that Mr Colquhoun is a man who enjoys outdoor activities and is a sportsman and is a high achiever and it is apparent from his affidavits and other material as well as his own children's affidavits that he was expecting them to be high achievers and to undertake accomplishments that would advance them in their lives. While such an attitude to life is to be applauded I think and is a responsible way to bring up children, nevertheless, there is a line to be drawn when such encouragement amounts to abuse. And I think looking at the material provided in the affidavits of [the children] that there were times when the father's encouragement amounted to abuse of those children." [Emphasis added] 16His Honour proceeded to make the observation that it was "of concern that in respect of some of the contact visits" Mr Colquhoun seemed "to be urging achievements that [were] age inappropriate" for his son. His Honour also confessed to being "a little concerned" at video evidence that showed the child using a power drill even though he was only about four and a half years old at the time. His Honour commented that it was "not difficult to see why some may see that as [Mr Colquhoun] having a lack of insight as to potential dangers." His Honour went on to say, however, that the video evidence was "not going to determine this matter." 17His Honour then proceeded to deal with what he referred to as "the incident" that occurred the previous month. It was Easter Sunday. His Honour's reasons included the following passages referable to that incident: "In this regard... the CareSouth worker filed a report as to that contact visit and it raises some serious concerns. There is a dispute between [the carer] and Mr Colquhoun as to what actually happened... What is important in my view is that when [the child] returned to the carer after that particular visit he informed the carer that something had happened and that his father was doing silly things and that he did not want to attend contact any more. I think that is a serious matter. In Mr Colquhoun's affidavit he seems to be suggesting that the foster carer was making up this reported conversation with [the child] although in my view there is nothing to suggest that that is what happened. I accept that there was something that caused [the child] distress and that he did not want to see his father any more." 18His Honour observed that the child had never been in Mr Colquhoun's care, which I take to be a reference to full-time care. His Honour thereafter ordered on an interim basis that Mr Colquhoun should have supervised contact once a fortnight for a period of two hours, to be reviewed following receipt of the Children's Court clinic report. 19His Honour then proceeded to deal with an issue of identifying the material that was to be sent to the Children's Court clinic for the purposes of making an independent assessment. Mr Colquhoun was present in court for argument on this issue but had left the court to attend a medical appointment by the time his Honour came to deliver his decision. Although his Honour went into some detail in doing so, it is important to record most of what he said in this regard. It was as follows: "HIS HONOUR...I think in light of Mr Colquhoun's indication that he is understandably dissatisfied with my position in relation to the assessment application that this may appear in another Court. I just wish to place on the record that I refer to my judgment that there were comments made in this Court which have been transcribed... The application for the assessment was lodged on 13 April last year and through no fault of Mr Colquhoun's in the main the position with the mother in identifying material to be sent to the clinic has delayed this application from being determined. I should add that in these proceedings from the outset that the Court has made allowances for the father being unrepresented. Further the Court has made allowances when it became apparent that Mr Colquhoun had some personality issues. Throughout the proceedings Mr Colquhoun has acted contemptuously and at times insulting, accusing the Court since the very first appearance of this matter and thereafter of being biased against him and accusing the Court of being [a] puppet of the Department of Community Services. Again being aware of the father's personality issues the Court has made allowances for the father's behaviour. Throughout the proceedings the father has also attempted to influence the Court by threatening to take these matters on appeal...[and] take the matter to a higher Court for 'a proper hearing'. In his oral submissions today Mr Colquhoun repeated that. Mr Colquhoun has often complained about the delay in these proceedings yet takes little or no responsibility for any of these delays. It is apparent that the father has no qualms about using his position as an unrepresented litigant as an excuse to claim he has not received copies of relevant filings in these proceedings. Despite assurances from the department that such filings have been posted to the father. The department recently resorted to sending mail by registered post but the father claims that because he resides in a rural area he will never receive anything sent to him by registered post. The father objects to material being served on him at the conclusion of contact visits when such contacts were occurring. The father has agreed previously that he received copies of filings by email but he claims he can only read them on his mobile phone. The Court has regularly agreed to adjourn proceedings to provide Mr Colquhoun with an opportunity to receive and read and respond to material filed in these proceedings. This has contributed on many occasions to the delay in these proceedings. I repeat that the Court has been considering the current application for an assessment to be undertaken by the Children's Court Clinic since 13 October this year. This is the department's application. The process has been delayed due to disputes occurring over the material to be forwarded to the clinic. The father has not contributed to this delay in any significant way nevertheless, the father has been stating for months of his intention to obtain legal representation to oppose certain material being forwarded to the clinic. On the last occasion this matter was before the Court the father had not engaged a lawyer, although he had applied for Legal Aid. The Court has previously stated that the main purpose of providing material to the Children's Court Clinic is to provide a background and a context for an assessment to be undertaken by an independent Children's Court clinician. I am not prepared to delay further these proceedings for several more weeks to enable such an exercise to occur. I am satisfied that there is nothing the court can say or do which will dispel the father's apparent paranoia over the department's attempts to unfairly prejudice the clinician's assessment against the father. The Court has confidence in the Children's Court Clinic and the ability of professional clinicians to provide a through and independent assessment and to provide professional opinions and recommendations to assist the Court. It is the Court which has the ultimate responsibility to make the determinations as to the evidence, the weight of the evidence and the weight to be given to anything that is based on hearsay evidence. The Court does not accept Mr Colquhoun's repeated claims that attempts are being made to prejudice the clinician in the clinicians assessment of the father. I fear that to adjourn yet again the proceedings on this application which has now been on foot for almost seven months will add further delay in these proceedings which are already exceeding the Court's time limits. These care proceedings were commenced on 31 December 2010 and here we are today on 9 May 2012, an assessment has not yet taken place and care plans have not even been prepared. This matter is likely to go to a hearing which is obviously going to be contested and these proceedings will not be finalised for many more months and I think it is unacceptable taking into account the welfare of the children to delay these proceedings for final orders being made. Notwithstanding Mr Colquhoun's objections and his wish to obtain legal representation to argue what will go to the clinic in my view such an exercise is futile and is going to take up more valuable time. So accordingly I'm making the orders today. Unfortunately Mr Colquhoun had to leave to attend a medical appointment. I had indicated earlier today when today's proceedings commenced that this was one matter that had to be resolved today." 20I note that the matter came back before his Honour on 15 June 2012. It is unnecessary to refer to what happened on that day, save to observe that Mr Colquhoun accused his Honour of conducting "a kangaroo court". He threatened to take proceedings in the Supreme Court and sought a stay of the Children's Court proceedings while that was done. His Honour was unimpressed with Mr Colquhoun's application, as the following short extract of the transcript reveals: "To stay the proceedings pending the determination of Supreme Court actions that has [sic] not even been filed at this stage is certainly an abuse of process in my view. The Supreme Court has the power to order stays in other courts, including this court, and if it is the case that the Supreme Court order such a stay then obviously this court must abide by such orders. In my view there is no justification at all to grant a stay of these proceedings. Whilst the father is taking action in relation to what he believes is bias of this Court which he accuses of being a kangaroo court, it is not appropriate in my view having regard to the wellbeing of the children to delay these proceedings any further." 21It would also appear that Mr Colquhoun made an application for unsupervised access that came before his Honour on 22 June 2012. His Honour refused the application and said this in the course of expressing his reasons for doing so: "The Court is not certain or clear as to what happened at that Easter [Sunday] contact but the Court did find on 19 May that something happened that caused [the child] to react in the way he has and that that contact was as a consequence of the father's behaviour. What happened is unclear and probably will never be established. But I accept the material...which sets out the reasons that the department has decided not to allow contact outside the office and that the contact should not take place outside the office, I accept that position of the department." 22When the matter returned to his Honour's court on 23 November 2012, Mr Colquhoun commenced by complaining that he did not think he was getting a fair hearing. He raised again some of the matters to which I have earlier referred. He asked his Honour to recuse himself. He is recorded as having said the following things to Magistrate Blewitt on that day: "...I don't feel that I was treated fairly. If it was to continue and if you were to continue obviously you are aware we have an appeal in the Supreme Court. It's set down for hearing the day before we start Court in February. It wouldn't be fair if that hearing was to go through and the Supreme Court dismissed you as a Magistrate from the proceedings... That would then also become some sort of problem and of course I feel that I'm really, really not getting dealt fairly here and I think the views and the opinions are way outweighed on what evidence is put in and that sends alarm bells with me ringing. I've had enough Court experience to know when I'm not getting a fair go and when I'm not and...I don't feel I'm getting a fair go here...". 23In dealing with Mr Colquhoun's submissions on that day his Honour responded in part as follows: "[My] rulings have been made objectively and without bias in respect of any of the parties despite the fact that Mr Colquhoun believes otherwise there is no legitimate basis for me to disqualify myself from hearing this matter and in my opinion I do not believe that any responsible, independent observer would come to the conclusion that I am biased in relation to Mr Colquhoun. So once again Mr Colquhoun's application for me to disqualify myself is refused." 24In due course on that day his Honour made orders that require no particular comment. He confirmed the hearing date. He proceeded to make the following comments with what I consider to be a remarkable and enviable degree of prescience having regard to events that have since occurred: "It appears to this Court that Mr Colquhoun is not interested in having these proceedings finalised at any time in the foreseeable future and is seeking to delay the process. The Court has been patient with Mr Colquhoun and has adjourned the proceedings on many occasions to either meet his convenience or to provide him with an opportunity to respond to filings of other parties or to present his evidence or arguments. The proceedings are approaching the stage where they have been on foot for almost two years. Having regard to the interests of the children in this case Mr Colquhoun's application to vacate the hearing date is refused. I confirm that the hearing is [to] commence at this Court on Tuesday 5 February 2013 and will continue until Friday 15 February unless the hearing is completed at an earlier date. Mr Colquhoun has this morning raised the likelihood of a problem arising if the Supreme Court grants his application. I can indicate in that regard that if that is the outcome in the Supreme Court then a contingency plan is in place for another Magistrate to hear the matter." 25Neither party referred me to any other factual material. Both Mr Colquhoun and the Director-General confirmed that they were both prepared to proceed with the matter in the Children's Court on what was the following day and to continue with the hearing to its conclusion within the time allotted.