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Evidence for and against - Is Mushin J GUILTY or not .. that is the question

Is 'No Justice' going to far with his accusations against the judiciary?

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Posted small portions of the evidence of extracts from Transcripts on 14/11/07.

I posted small portions of the evidence of extracts from Transcripts on 14/11/07 in reply to Conan I have in support of what I have said. I have also stated repeatedly I do not say something I cannot prove nor have good reason, on evidence, to believe.

Regarding the cause of undue duress to cause the removal of applications returnable of the Judicial Commonwealth of the Power of Contempt, there was police evidence in support of those applications and the Orders were Consent Orders acted in Contempt of.

The words of the Counsel for the Child Rep (CfCR) to the Court on page 4 of the transcript - December 2002;

CfCR: ? But unfortunately it seems that THE FATHER view is that he wishes to prosecute the 49, which would then prevent those orders by agreement coming into operation.

The CfCR was talking about child contact orders to modify existing Consent Child Contact Orders.

CfCR: It seems to be the wish of THE FATHER. He wishes to proceed with the 49.

THE FATHER: No, I had indicated just here in this room that I will concede the two 49s.


CfCR: The position, your Honour, as I indicated to you earlier, where there were 49 and 47 applications by [THE FATHER] in relation to the proceedings.

HIS HONOUR: A 47?

CfCR: The contempt.

HIS HONOUR: The AP contempt - the ultimate.

CfCR: Yes, that's so.

THE FATHER: Against both the mother and the solicitor for the mother.

CfCR: Your Honour, these orders deal with that by disposing of those proceedings.


The words of the CfCR to the Court on page 14 of the transcript _March 2003;

CfCR: Your Honour, when those orders are handed to you, you'll see that paragraph 7 dealt with the, shall we say, contravention and contempt applications where it says, "All extant form 47 and 49 applications be withdrawn."

The evidence for the other than lawful making of a s.118 Order is

CfCR: Your Honour, as I perceive it, there are two remaining matters before the court. The first is the contravention proceedings.

HIS HONOUR: Yes.

CfCR: The second is the cross-application in relation to an application by the mother that the husband seek leave of the court prior to making any further applications.

HIS HONOUR: When was the application in respect of leave of the court and further applications?

MS………: It was filed on ? February 2003, your Honour.

HIS HONOUR: Thank you.

Irrelevant conversation at this time ? page 16 continues

MR father: ? My contact with my children has proven to be rather traumatic for the three of us, and the only person that appears to have any pleasure out of disturbing this contact is the mother, with her aggression. My son on the previous contact even took the time - he had found a book at school. He wanted to do his reading to me, and therefore his mother interfered with his contact by not even letting him finish that book.

Without going into too much ado, my previous applications being the two form 49s and the form 47 against the mother, the purpose for the form 47 is I do understand that a third form 49 would lead cause to regime 3 of the parenting order and therefore I did feel a form 47 was more appropriate in that instance. Two of the form 47s have been directly against Ms Mc… for her direction to police.

HIS HONOUR: They haven't been really, have they? I mean, they're applications which involve Ms Mc.. , if you like, but the person who is going to be punished if anybody was to be punished would have been of course Ms mother.

MR father: That is why I lodged a form 47 against Ms Mc.. . When a solicitor directs and argues with police as to what child contact is allowed and argues that the contact is contrary to orders of the court, then I believe that is aiding and abetting and therefore pertinent to contempt of court. I cannot recall the exact section of the Family Law Act.

HIS HONOUR: Anyway, we're not dealing with that now. I'd like you to tell me why it is that you think that I shouldn't make an application pursuant to section 118 restraining you from making further applications to the court without first seeking the leave of the court. I think it's apparent that you've made a lot of applications to the court, some of which really have no basis (enforcement of consented child contact orders where contact pursuant to the orders was physically sought now withdrawn) at all, and as CfCR has explained to the court - although I understand what he's saying, but you've heard it - apart from anything else, of occupying a great deal of unnecessary court time.

My answer did not include reference to the Law of s.118 Law of requirement of a determination of the applications, not the making of applications. There was no So the Judge made the Order.

JUDGMENT DELIVERED 3.26 pm

To cause the matter to become uncontested that Judge admitted at page 399 of the transcript _ January 2004

HIS HONOUR: I mean, I've called you a liar and a cheat and arrogant and pompous and aggressive and violent, all those sorts of things, I've called you all that??Yes.

And you've taken it and you just keep on coming back for more. I mean, I think if I had have been sitting where you have been and been spoken to like I've been speaking to you, I would have been crawling under a log? Is that an instruction to withdraw or what.

?Your Honour, when a person is continually in - if I can say for various reasons people become numb -

That's you, is it??That is the way I've been feeling over the last few days, yes, your Honour.


This is while I was under cross examination and to me amounts to attempting to prevent a witness from presenting evidence the Judge, admitted, knows from affidavits is going to be present in a way the Court is informed of the evidence but not obliged to prosecute the mother because it is not first hand evidence but professional hearsay.

Relevant Parts of pages 275 to 277 of the Transcript January 2004;

Relevant Parts Page 275

NEW CfCR: The NAME OF Trust - and it has to do, sir, with the child representative's position that at the completion of this matter, the child rep will be seeking an order for costs - that up till this stage, as I understand, a previous order for costs has been made. An order was made on interim proceedings for the payment of $__ costs and, at this stage, a part-payment has been made and I'm must endeavouring to locate the details of that part-payment. A part-payment was made on 22 December of this year of $1/3rd - two payments of that amount.

In this matter, sir, given that the child rep is a taxpayer-funded body - that in the circumstances, sir, given that it has been disclosed - a fund - that what's sought is - the effective order is for that fund to be frozen - that would mean that THE FATHER would need to be ordered to provide details of all bank accounts operating.

HIS HONOUR: How can I do that? He's neither a controlling or a majority shareholder in that. He's only one of five.

NEW CfCR: But he says in his evidence that he's got the power to make the payments and he has been making payments clearly by and with the authority of the trust.

Relevant Parts Page 276 from line 1 to 39 inclusive;

HIS HONOUR: Wouldn't I have to give notice to all trustees before I made this order?

NEW CfCR: To freeze the funds?

HIS HONOUR: Yes.

NEW CfCR: Perhaps so, sir. So in the alternative, the order would be for THE FATHER to provide all details of bank accounts operated by the NAME OF Trust.

HIS HONOUR: Provide the?

NEW CfCR: Business activity statement - all receipts and accounts and tax assessments over the last three years.

HIS HONOUR: Isn't that the same? Don't you need third-party discovery from them and don't you need to make an application under what is presently order 20 rule 8, served on the trust? You see he's only one of five.

NEW CfCR: That's only for him to produce the documents at this point. I hear what your Honour says and I understand that that's the state of the law.

(acknowledgement of attempting an unlawful act in Contempt of an Oath or Undertaking to the Bar)

HIS HONOUR: The other thing is that you've got a potentially difficult situation, in that that can adversely affect the beneficiaries who are your clients.

NEW CfCR: Well, it may adversely affect them, sir, but in the circumstances, given that, as I understand it, sir, they've received nothing by way of a distribution from the trust and THE FATHER is not able to foresee any further distribution, then in real terms, sir, any benefit may be seen as illusory, in my submission.
(NEW CfCR has not yet cross examined the witness so no evidence given or sought or relevant, there was no Assessment Application before the Court only the NEW CfCR jumping the gun for cost orders to cause duress to a witness in the middle of giving evidence)

HIS HONOUR: Well, that might be so. I'm always concerned with a child representative makes an order for costs or something akin to that, that there can be conflict of interest involved.

NEW CfCR: Yes, sir. I understand that to.
(admission of other an lawful (do right by) behaviour of NEW CfCR)

Relevant Parts Page 277 from line 35 to 43;

HIS HONOUR: Well, I would like you to attempt to persuade your fellow trustees forthwith.

THE FATHER: Yes, your Honour.

HIS HONOUR: I'm not going to make an order at this stage, because I'm not at all convinced about the jurisdiction to do so in the circumstances. But you can tell me first thing in the morning what the attitude of the trustees is. All right?
- (does this support 3rd Party Notice was required?)

Page 404 of the Transcript January 2004;

HIS HONOUR: Back in the witness box, thank you.

NEW CfCR: Just prior to this cross-examination resuming, sir.

HIS HONOUR: Yes, have a seat, THE FATHER. Yes?

NEW CfCR: Yesterday I asked for certain business documents. They've not been made available and I would ask for them to be produced. (refer to page 275 to 277 of the Transcript)

HIS HONOUR: Did you produce those documents?

THE FATHER: No, your Honour. I sought instruction from the trustees in COUNTRY. Their instructions were that it is a private family trust and they believe that those documents should not be made available to THE MOTHER.

HIS HONOUR: Do you have any of those documents in your personal possession?

THE FATHER: I have the documents relating to Australian enterprise, your Honour.

HIS HONOUR: Well, I could require him to give you those, can't I?

NEW CfCR: Yes.
(Evidence required for a breach of s.42 of the Crimes Act of an agreement, is it not?)

HIS HONOUR: All of the documents - what are they that you have?

? not relevant here.

Page 405 of the Transcript January 2004;

THE FATHER: Your Honour, my TRUSTEE instructed me, on behalf of the trustees in COUNTRY - (does this support 3rd Party Notice required?)

HIS HONOUR: THE FATHER, if you have those pieces of paper in your possession you will provide them to NEW CfCR by 9.30 on Tuesday morning - full stop. (is this an unwarranted and unlawful instruction due to no 3rd Party Notice given?)

THE FATHER: Yes, sir.

HIS HONOUR: You understand?

THE FATHER: Yes, sir.

HIS HONOUR: If you don't I will deal with you.
(is this a menace or is this a menace?)

This is a clear breach of 139.2 of the Code, a Law of the Commonwealth created to prosecute Judges for this very behaviour while at the bench is it not?

Is this enough evidence of what I have said or do you need more. The CJ's need to grant Judicial Immunity to prevent the Constitutional requirement of Proved Misconduct for the termination of a Judges Tenure should have been enough in my book.

Proof of the CJ granting Immunity is at this link... Read and weep in disbelief...
http://www.austlii.edu.au/au/other/HCATrans/2007/340.html

High Court of Australia Transcripts

Mackintosh, In the matter of [2007] HCATrans 340 (1 August 2007)


Last Updated: 20 August 2007

[2007] HCATrans 340

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M92 of 2006

In the matter of IAN MACKINTOSH

Application for leave to appeal

Publication of reasons and pronouncement of orders

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 1 AUGUST 2007 AT 8.39 AM

Copyright in the High Court of Australia

KIRBY J: The applicant here sought to invoke the jurisdiction of the Family Court by handing up to a judge of it (Mushin J) in open court on 24 August 2005, an unsealed, unissued Form 2 application, signed by him.

The applicant sought a number of orders, including the joinder of the Attorney-General and the provision of legal aid to him, but principally, leave to file an application for contempt against Mushin J. Leave to file such an application was required because the applicant had been the subject of an order made pursuant to s 118(1)© of the Family Law Act 1975 (Cth) ("the Act") restraining him from issuing any application in the proceedings without the leave of the Court. The application was referred to Bryant CJ for hearing and determination.

The applicant and his supporting affidavit referred to a trial conducted by Mushin J with respect to the applicant's rights of contact with his two children.

In order to get leave, pursuant to rule 11.05 of the Family Law Rules 2004, the applicant was required to show that his application had a reasonable prospect of success.

In her rejection of the application, Bryant CJ observed that the actions of any judge of a superior court were immune from suit by reason of the doctrine of judicial immunity. The applicant had contended that such immunity should only be available during "the tenure of good behaviour". Her Honour took this as intending to mean that the Judge must be acting in good faith during the relevant proceedings. Her Honour noted that it is now settled that there are no relevant exceptions to the doctrine. Consequently, her Honour held the proposed application had no reasonable prospect of success. She accordingly refused leave. Her Honour also refused to grant any of the other orders sought by the applicant.

No constitutional issue arose which would warrant the joinder of the Attorney-General. In her Honour's opinion it was inappropriate to make an order as to the provision of legal assistance.

The applicant raised some 30 purported grounds of appeal in the Full Court of the Family Court (Faulks DCJ, Kay and Coleman JJ). The Court observed that many of them were not in fact grounds of appeal. The applicant's extensive references to the Statute of Westminster Adoption Act 1942 (Cth) and s 72(ii) of the Constitution were misconceived and added nothing to his case. The Full Court concluded that, in view of this Court's decision in Fingleton v The Queen (2005) 79 ALJR 1250 and other authorities referred to by Bryant CJ, her Honour was undoubtedly correct in dismissing the applicant's application.

In respect of the other orders sought by the applicant, the Full Court was also of the view that there were no errors in her Honour's refusal to make the orders sought.

The applicant's proposed notice of appeal to this Court is incomprehensible. He claims breach of the International Covenant on Civil and Political Rights, alleges that the Full Court of the Family Court committed "an offence of corruption", that the Full Court breached the Constitution, the Family Law Act and the Crimes Act and that the interests of justice require the intervention of this Court.

The application to this Court is hopeless. The applicant has no basis for his claims. Any appeal would be bound to fail. The application must be dismissed.

Because the applicant is unrepresented, this application for special leave falls to be dealt with in accordance with rule 41.10 of the High Court Rules 2004. Pursuant to rule 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing this application.

I publish that disposition signed by Justice Callinan and myself.

AT 8.42 AM THE MATTER WAS CONCLUDED.
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