Re NYY[2025] QCA 64

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  The self-represented appellant sought to commence a proceeding in the trial division of the Supreme Court of Queensland by filing an originating application and a supporting affidavit.
2. [2]
   The registry referred the documents to a judge pursuant to rule 15 of the Uniform Civil Procedure Rules 1999 (Qld) and the judge directed the Registrar to refuse to issue the originating process without leave of the Court.  The registry returned the documents to the appellant, unfiled.
3. [3]
   The appellant applied to the primary judge for such leave and the primary judge dismissed her application.  By the present appeal, the appellant seeks to overturn that order.
4. [4]
   For reasons which follow, the appeal should be dismissed.

Background to the attempt to commence a proceeding in the trial division

5. [5]
   A marriage between the appellant and her husband broke down in January 2018.  There were three daughters of the marriage, presently aged about 14, 12 and 11.  For reasons which will become clear when regard is had to the nature of the allegations made by the appellant, it is convenient to refer to the appellant as the mother, to her former husband as the father and not to refer to the daughters by name.
6. [6]
   Since their separation in 2018 the mother and the father had been engaged in continuing litigation in the Federal Circuit and Family Court of Australia in respect of both financial and parenting issues.
7. [7]
   The mother told this Court during her oral argument that “I’m finished with the Family Court.  There’s no other courts.”  In that statement she was correct.  In relation to her attempt to persuade a judicial officer of the truth of many of the allegations she now wishes to advance in the Supreme Court, she failed at first instance in the Federal Circuit and Family Court of Australia, failed on appeal, and failed in an application for special leave to appeal to the High Court of Australia.
8. [8]
   I turn to identify relevant parts of the litigation history so far.
9. [9]
   The financial proceedings between the mother and the father were largely resolved on 17 May 2022 when the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction dismissed the mother’s appeal against final property adjustment orders.^[1]  Parenting issues were ultimately resolved on 8 July 2022 when Baumann J made orders that the father would have sole parental responsibility for the three children, for the children to live with the father and for them to spend time with the mother on a supervised basis at a specified contact centre.^[2]  His Honour’s orders were upheld on appeal.^[3]
10. [10]
    The judgment of Baumann J examined the fraught history of the relationship between the mother and the father, including the mental health issues which had affected the mother during the period of the litigation.  Some aspects of that history and of his Honour’s reasoning should be recorded.
11. [11]
    Parenting issues were initially dealt with by orders made on 18 April 2018 when a Judge of the Federal Circuit Court of Australia ordered -

    1. the mother and the father were to have equal shared parental responsibility;
    2. the children were to live with the mother; and
    3. the children were to spend time with the father alternate weekends (Friday to Monday) and after school Monday to before school Wednesday in the off week – mathematically a split of time of nine nights/five nights.
12. [12]
    In February 2019, the father sought to have those orders varied so that there would be an immediate change of residence, and the children would spend only supervised time with the mother.  Interim orders acceding to the father’s application were made in March 2019 and final orders to similar effect were made on 12 August 2019.  The mother successfully appealed and on 6 April 2020, the Family Court set aside the final orders and remitted the interim application for rehearing.^[4]  Baumann J managed the further conduct of the proceedings in relation to interim and final parenting arrangements.
13. [13]
    For significant parts of the proceedings before Baumann J the mother was self-represented.  His Honour recorded that her conduct of the proceeding was characterised by a failure “… to understand how the integrity of the trial process (and the need for procedural fairness to all parties), is best achieved by litigants (even those unrepresented) complying with directions.”  Although his Honour permitted the mother to rely on certain trial affidavits, even though filed late, during the trial his Honour “… dismissed attempts by the mother to seek to rely on other affidavits, Applications, Responses, case summaries, outlines, written submissions, subpoenae and other ‘documents’, including asserted ‘media exhibits’.”  He also dismissed an application for re-opening which the mother had made after the trial and before judgment.
14. [14]
    In relation to the final hearing, both the father and the mother sought diametrically opposed forms of order.  The father sought to have the children live with him, for him to have sole parental responsibility and for the mother to have supervised access only to the children.  Broadly speaking a proposal by the court-appointed Independent Children’s Lawyer supported this model.  The mother’s position was essentially the converse, although any physical access which the father was to have to the children was to be conditional upon the father providing to the mother:

“(a) evidence of ‘detailed pathological and neuropsychiatric assessment, treatment and management’ of the father’s alleged brain injury;

2. ‘detailed psychiatric assessment and follow up psychiatrist attendance by the father for a minimum of 6 visits over 3 months’;

3. ‘psychotherapist attendance by the father for a minimum of 24 appointments for not less than 24 months’; and

4. ‘a detailed psychotherapist report’ at the conclusion of every 12 months which demonstrates ‘behavioural change of the Father, ability to take responsibility for actions and behaviours towards the Mother and Children, and a complete change in thought patterns of the Father in relation to the Mother.’

15. [15]
    Baumann J noted that the polarised position of the mother and the father meant that there was no middle ground position.  He recorded that:

“The Court is therefore required to make a decision as to whether the children live with the father, or live with the mother or, on the maternal grandmother’s case, if not the mother then her. In circumstances where both parents assert their position is compelling, because of the risks the other parent will expose the children to in their care, before dealing narratively with the relevant s 60CC(2) and (3) considerations, it is necessary to make findings about the risks alleged; the ability of either parent to support and facilitate the children having a relationship with the other parent and the evidence of the only independent expert to have engaged the parents, the maternal grandmother and the children – namely the Court Child Expert (as now described) Ms HH.”

16. [16]
    Amongst the matters relevant to the risks to which his Honour referred were:

    1. allegations advanced by the mother concerning the father’s domestic violence towards her;
    2. allegations advanced by the mother concerning the issue of the mental health of the father;
    3. evidence which raised concerns as to the mental health of the mother; and
    4. allegations by the mother that the children were at risk of sexual harm by the father.
17. [17]
    In each area of concern, Baumann J made findings which were adverse to the mother’s case.
18. [18]
    I interpolate that domestic violence allegations had previously been litigated between the mother and the father in the Queensland Courts.  On 5 December 2019 pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) Magistrate Dowse of the Southport Magistrates’ Court granted the father a protection order against the mother and dismissed the mother’s application for a protection order.  On 22 June 2020, the mother’s appeal from those orders was heard in the District Court of Queensland by McGinness DCJ.  In reasons for judgment published on 17 September 2020, her Honour made orders dismissing the mother’s appeal.
19. [19]
    Baumann J noted that the allegations concerning domestic violence had been examined in those courts and adopted and relied on the findings made in those two decisions.  His Honour observed:

“In this case, prior to separation the mother alleges that the father attempted to kill her by strangulation in late 2017.  This incident, in particular and others, has already been extensively examined by two judicial officers, namely:

1. in a domestic violence hearing conducted before a Magistrate on 2 and 3 December 2019, evidence was taken and, on 5 December 2019, findings were pronounced to support the decision of the Magistrate that a Protection Order be made in favour of the father for a period of five years. The mother’s cross application for a protection order was dismissed. A transcript of the hearing is Annexure ‘MN16’ to the father’s trial affidavit. The Magistrate examined extensively the ‘strangulation’ event and ultimately formed the view the mother ‘is prone to exaggeration and paranoia’ who ‘has demonstrated very clearly that she has no self-control and is unable to regulate her emotions. The Magistrate said the mother was not at all apologetic for her behaviour and could only really be described as belligerent; she does not describe feelings of fear, but she is definitely very angry and upset; she blames [Mr Newett] for these feelings, but it is not his fault’. It is clear from the Reasons for Judgment that the Magistrate did not accept the version of the event in late 2019 given by the mother, having been fully tested (noting for that hearing the mother was represented by a barrister). I do record that to a limited extent cross-examination about this incident was conducted before me. Whilst I am satisfied some physical interaction occurred, I do not accept it was at the level asserted by the mother. Furthermore however, I think it is likely, at the time, as the mother deposed, the father expressed regret for his involvement in the incident and likely indicated it would not happen again. I am not satisfied any similar incident did happen thereafter, including as I will examine, the incident on 1 December 2020. Further findings made by the Magistrate include (and I adopt):

1. that the contents of the email of 17 July 2019 from the mother to the father’s solicitor ‘accusing them of being part of a child trafficking ring which may contain elements of a paedophile ring’ are ‘certainly insulting, and used in a way to cause upset’; and

2. although the mother expressed remorse for ‘the abusive messages left for [the father] the day after judgment of Judge Cassidy’, ‘her motive for the apology could not be regarded as genuine. It was contrived by self interest’.

2. the mother chose to appeal the decision of the Magistrate, as she was entitled to do. However her appeal was entirely unsuccessful. The hearing before a District Court Judge on 22 June 2020 resulted in a judgment delivered on 17 September 2020 (see Annexure ‘MN19’ to the father’s trial affidavit although that annexure failed to include pages 550 and 551, which have been sourced from the affidavit of the father filed 30 August 2021). The appeal was by way of a rehearing on the evidence given in the proceedings before the Magistrate. At paragraphs 60 to 67, the learned District Court Judge summarised the submissions of the appellant mother. There is a ring of similarity in the complaints raised in that hearing to what have at times been raised before this Court. Relevant findings include:

The appellant has committed numerous acts constituting domestic violence against the respondent…the appellant sent abusive and intimidating messages to the respondent, published abusive and malicious Facebook posts, and sent numerous messages denigrating the respondent to others. The email and text communications between the appellant and the respondent clearly show a pattern of the appellant harassing and denigrating the respondent.

At the appeal hearing, the appellant continued to have little if any insight into the fact her behaviour has been unacceptable. She made clear her intention was to pursue the respondent further through the courts. I am satisfied a protection order was and is clearly necessary and desirable to protect the respondent from further domestic violence.

With respect to the appellant’s application for a protection order against the respondent, the appellant has failed to show the Magistrate erred by concluding she could not be satisfied that the respondent had committed any act of domestic violence on 19 November 2017, or any act of domestic violence other than some verbal abuse during the incident of 29 January 2018…The evidence supported her conclusion that the respondent’s behaviour on that one occasion was out of character. In my view, although the respondent’s verbal outburst on 29 January 2018 may well have constituted emotional or psychological abuse under section 8(l)(b) of the Act, there was no credible or reliable evidence that, prior to or since that date, the respondent behaved in any way which could satisfy a court that it was necessary or desirable to make a protection order against him. The uncontested evidence was that the respondent had made no contact, directly or indirectly, with the appellant except in compliance with Family Court orders.

…there was no credible or reliable evidence before the court of financial abuse by the respondent. For example, the appellant’s belief that she was entitled to money from the respondent’s aunt’s will is without foundation. The respondent was not the beneficiary to the will. The appellant’s claim that “the will is fake and it needs testing” is spurious. There was no evidence to corroborate the appellant’s claims that the respondent had stalked her, stolen her money or hacked into her bank accounts. There was no evidence to corroborate her other complaints of domestic violence, for example, that the respondent had stolen items from her house, tampered with items on her property, put magnets on her fridge to spell the word “burn”, or conspired with police to have her admitted to the [City T Hospital] MHU.”^[5]

20. [20]
    In relation to the allegations made by the mother as to the father’s mental health, Baumann J acknowledged that the father had a childhood acquired brain injury, noted the expert opinion on that subject, the fact that the father regularly consulted medical practitioners on the subject, and that the father had the right to drive a car.  His Honour rejected the mother’s suggestion that the injury or any epileptic episodes the father might have had were connected with alleged violent behaviour.  His Honour accepted expert opinion evidence that the father did not suffer a psychotic illness, or from any major mood disorder; or displayed personality vulnerabilities which would be of concern to the Court.
21. [21]
    His Honour’s findings in relation to the father stood in stark contrast to those he made in relation to the mother.  He observed that:

“As I hope to explain, although the history of the mother’s behaviour has been at times bizarre and entrenched, I have come to the ultimate conclusion that this litigation and the mother’s lack of insight into her increasing erratic and concerning behaviour, has been almost the self-fulfilling result of her demonstrated actions.

Said more simply, although the mother has many talents and abilities, accepting a view contrary to her own – be it from the father; her mother; the experts in this case or the Court – is not one of her traits. Sadly, not only does she disagree (as she is perfectly entitled to do) but in the furtherance of her view of the unassailable correctness of everything she believes, she has shown a capacity to attack anyone using all means available to her. Even many judgments by judicial officers against her numerous positions, including Magistrates, a District Court Judge; Supreme Court Justices; officers and Judges of this Court; has not in any way dented or tempered her views or apparently caused her to reflect on her approach.

This is a case where, after the Orders on 6 March 2019, for over three years the mother has been on a rampage. Attempts by this Court to make the proceedings less adversarial, have failed at every stage.

In the absence of any independent evidence which establishes the mother suffered mental health challenges prior to separation, the history since at least March 2019 satisfies me that the mother has been unable to cope with the litigation in reality. The “system” may have contributed to and exacerbated the mother’s underlying vulnerability.

However, where the Court’s paramount consideration is the children’s best interests, the Court can hardly (even sympathetically) ignore the mother’s behaviour and the risk her behaviour presents to the care of the children. I make such a finding even though the medical evidence which I now assess would not lead to a definite finding the mother has a diagnosed mental health condition – although Dr V did identify three primary possibilities.”

22. [22]
    Dr V was the mother’s treating psychologist.  He had concluded that the mother was suffering from Anxiety and an Acute Stress Disorder.  He thought there were three primary possibilities, namely Adjustment Disorder with mixed Emotions; PTSD related to past trauma associated with overvalued ideas and Delusional Disorder.  Dr V observed that the last possibility could not be accepted unless her allegations could be dismissed with absolute certainty.  Baumann J was not prepared to find that the mother suffered from Delusional Disorder, but he did find that the evidence established that the mother’s fixation presented as a significant risk to the children of psychological harm and supported a finding she would be unable to facilitate and support the children having any relationship with their father.
23. [23]
    Baumann J then examined the question whether the children were at risk of sexual harm from the father, noting that:

“The mother has maintained her belief that the children are at risk of sexual harm by the father. The mother, in her cross-examination, carefully explained that whilst she does not assert she witnessed any abuse and does ‘not know what happened’, she holds such a low opinion of the father that she has a belief he may have touched the children inappropriately either, I infer from the nature of her belief, for his own sexual gratification or as an exercise in ‘child grooming’.”

24. [24]
    His Honour examined the evidence before him of the father, the mother, and the maternal grandmother, and, noting the lack of any evidence from responsible governmental authorities supporting the allegation, his Honour concluded:

“… on the evidence offered to this Court, I agree with the submissions of the ICL and the father that a finding that the father has either sexually abused these children or is likely to do so, is not open. In making such a clear finding, I am conscious of higher authority which cautions against making a positive finding either way (see M v M (1988) 166 CLR 69). However, on all the evidence in this case, I am persuaded by the father’s submissions at paragraph 62 to make the finding I have made above.”

25. [25]
    His Honour subsequently observed that he did not find the children were at a risk of sexual abuse, family violence or psychological abuse in the father’s care.  He did not accept that the father was a risk as the mother had asserted.  He found that the mother had an evidentiary onus to establish her fears were actually true and, on the balance of probabilities, she had failed to do so.  To the contrary, although he found that if the children lived with the mother she would not have any difficulty in meeting their physical and educational needs, he found that the mother was “an emotional and psychological risk to the children”.
26. [26]
    Baumann J went on to consider various statutory requirements which are unnecessary to record here and ultimately made final orders for the father to have sole parental responsibility for the three children; for the children to live with the father and for them to spend time with the mother on a supervised basis at a specified contact centre.
27. [27]
    The mother’s appeal from the orders made by Baumann J was dismissed on 13 March 2023 by the Family Court of Australia (Division 1) Appellate Jurisdiction (Aldridge, Kari and Brasch JJ).^[6]  It is not necessary to canvass the entirety of the reasoning of the appellate court.  Two aspects, however, are worth noting.  First, the Court noted that the mother’s grounds of appeal and submissions had proceeded on the basis that the children had been sexually abused by the father and, at the least, there was such an unacceptable risk of future sexual abuse posed by him that the children should not spend any time with him at all.  The Court rejected those grounds of appeal, finding that the appellant had failed to demonstrate why the findings of Baumann J on the issue were in error.  Second, and in apparent continuation of the approach described by Baumann J in the second paragraph of the quotation at [21] above, the mother made a plethora of scandalous allegations concerning Baumann J, the husband’s legal team, the Independent Children’s Lawyer, the expert psychiatrist and the police, all of which were rejected by the appellate court.
28. [28]
    On 7 December 2023 the High Court dismissed an application by the mother for an extension of time within which to seek special leave to appeal from that decision, concluding that an appeal to the High Court would enjoy no prospects of success and it would therefore be futile to grant the extension of time that was sought.
29. [29]
    On 6 January 2025, the mother filed a document in this Court against the father which the President described as “… seeking application for leave to appeal or in the alternative, application for judicial review with an extension of time, and application in equity seeking the court to exercise its parens patriae jurisdiction.”  The proposed appellate proceeding apparently related to the decisions of Magistrate Dowse and of McGinness DCJ referred to at [18] above.  The President noted that the latter decision was final and conclusive pursuant to s 169(2) of the Domestic and Family Violence Protection Act 2012, and that any application to the Supreme Court for judicial review or the exercise of equitable jurisdiction must in the first instance be made to a judge in the trial division.
30. [30]
    The mother had invited the President to exercise power pursuant to s 61 of the Supreme Court Act (which permits the Court of Appeal to form the view that a proceeding commenced in the Court of Appeal could be more conveniently heard and determined in another court, and to remit the proceeding to another Court).  However, the President concluded that the form in which the application had been brought in the initiating document was not suitable for remission to the trial division.  Her Honour concluded:

“If the appellant wishes to seek a Judge in the trial division to exercise jurisdiction that is vested in the Supreme Court, and which is exercisable in the first instance by a Judge exercising trial jurisdiction, the application should be brought with precision and on the grounds which are applicable to the relief that is sought. It should also be brought having regard to the fact that the appellant would be seeking the exercise of a discretionary jurisdiction which the court may be reluctant to exercise when the children that are the subject of the appellant’s concerns are the subject of orders made in the federal jurisdiction. I therefore consider that it is appropriate to strike out the appeal that has been commenced in this court under appeal number 28 of 2025 on the basis of the want of jurisdiction of the Court of Appeal to provide the relief that is sought in that notice of appeal. The order of the court is appeal struck out for want of jurisdiction.”

The attempt to commence a proceeding in the trial division

31. [31]
    On 24 January 2025, the mother sought to commence a proceeding in the trial division by filing -

    1. an originating application dated 24 January 2025; and
    2. her affidavit filed 6 January 2025.
32. [32]
    The originating application named as respondents McGinness DCJ, Magistrate Dowse, the mother’s former solicitor, the Commissioner of the Queensland Police Service and the father.
33. [33]
    The acting deputy registrar referred the originating application to the Senior Applications Judge pursuant to rule 15 of the Uniform Civil Procedure Rules.  On 28 January 2025, the Senior Applications Judge directed the registrar to refuse to issue the originating process without leave of the Court.  The result was that the documents were returned to the mother unfiled.
34. [34]
    On 31 January 2025, the mother filed an originating application seeking leave of the Court to file the documents which she had sought to file on 24 January 2025.
35. [35]
    The application was, with a degree of understatement, described by the primary judge as “a challenging document”.  The principal relief sought in the originating application which the mother sought leave to file was:

    1. first, that the Supreme Court urgently exercise “jurisdiction in parens patriae in the Equity division” to immediately remove her children from the father’s care and place them in her care and that there be an assessment of the risk of sexual and other harm to the children;
    2. second, that a “Common Law Judicial Review” be performed against the judgment and orders made by McGinness DCJ and Magistrate Dowse to which reference has already been made, that the order made against the mother be quashed;
    3. third, a miscellany of orders be made against the respondents and others including –
       1. that subpoenas be issued to and be required to be responded by the “the Queensland Government” and “the Federal Government”, and there be orders made limiting the respondents access to information provided in response;
       2. that a “Lifetime Domestic Violence Order” be made against the father;
       3. that the appellant be granted permission “to criminally and civilly prosecute” the father and “any other associated parties” for all acts of abuse and violence committed against the mother and her children, and that all prosecutions be funded at the complete upfront cost of the Queensland Courts and/or the Queensland Government;
       4. that her former solicitor “be assessed for breach of Legal Professional Practice Rules” in respect of her conduct in the Magistrates Court, that she be “assessed for perjury”, and that the mother be permitted “to civilly prosecute” her at no further cost;
       5. that the Commissioner of the Queensland Police Service “be assessed for misconduct, bias, non-compliance and breach of Police Powers, Responsibilities and Operational Practice Rules…” in respect of treatment of matters between the mother, the father and their children, and the mother be permitted “to civilly prosecute” the Commissioner at no further cost;
       6. that the respondents and/or the Queensland Government reimburse the mother for costs and losses totalling $2,909,815.59 and the Queensland Government, pay her child related costs indefinitely.
36. [36]
    The primary judge ordered that the mother’s application for leave pursuant to rule 15(2)(b) of the Uniform Civil Procedure Rules 1999 be dismissed because he concluded that –

    1. the claims which the mother sought to be advance were not properly identified and no legal basis for the claims was set out;
    2. the proposed claims would prejudice the proposed respondents as the proposed claims were vexatious and lacking in a proper legal basis;
    3. the proposed claims, or at least some of them, were likely to be beyond the jurisdiction of this court, or clouded by doubts about jurisdiction; and
    4. in so far as they might be properly based, the Federal Circuit and Family Court of Australia (Division 2) was the appropriate forum for the proposed claims.

The appeal to this Court

37. [37]
    The order made by the primary judge is to be regarded as an interlocutory order and the appeal to this Court from the order made by the primary judge is to be regarded as an appeal in the strict sense: see DU v Jackson (DCJ) [2024] QCA 122 per Bond JA at [2] and per Dalton JA at [24] to [46].
38. [38]
    In order to overturn the decision, the mother would at least have to persuade this Court that the order was made because of legal, factual or discretionary error.  But, additionally, as the decision was an interlocutory decision on a matter of practice and procedure, and as this Court observed in Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd [2021] 9 QR 141 citing the decision of Sir Frederick Jordan in Re The Will of FB Gilbert (deceased) (1946) 46 SR (NSW) 318 at 322–323:

“… although there is no absolute rule and each case must be considered in light of its own particular circumstances, generally an appellate court will not interfere unless, in addition to error of principle, the appellant demonstrates that the error will work a substantial injustice to one of the parties.”

39. [39]
    By her notice of appeal, the mother challenged the order made by the primary judge dismissing her application on a multiplicity of bases relating to the first and second categories of relief referred to at [35] above and essentially because -

    1. she contended that the primary judge erred in failing to exercise the Supreme Court’s parens patriae jurisdiction to make the orders that had been sought; and
    2. the primary judge erred in failing to make orders in exercise of what was said to be the trial division’s jurisdiction to issue orders by way of “common law judicial review”.

Alleged error in failing to exercise parens patriae jurisdiction

40. [40]
    The primary judge was correct to express doubts as to the extent to which State Supreme Courts might retain jurisdiction to make orders of the nature of those sought.
41. [41]
    But this appeal is not one in which it is appropriate to resolve the extent of those doubts, or the theoretical extent of the Court’s ability to make orders in the parens patriae jurisdiction, because, if there was jurisdiction it would only be exercised in the event that there was a case requiring its exercise.
42. [42]
    The primary judge found that there was no evidence identified by the appellant in her application that established that the children were presently in harm’s way.  Unless the mother could show that that finding was in error, this Court would not interfere with the decision made by the primary judge.  Even if there had been an error of principle, the error would not work a substantial injustice.
43. [43]
    The mother’s affidavit sworn 31 January 2025 expressed her opinion that:

“The evidence of certain beyond reasonable doubt evidence of Risk of Child Sexual Abuse by the Father against the Children is supplied in exhibits D, F, G and H which is corroborative evidence.”

44. [44]
    Exhibit D was an extract from a transcript before Baumann J on 20 September 2021 in which his Honour refused to receive what the mother described as “child sexual abuse stuff”.  It should be noted that the proposition that his Honour had wrongly suppressed evidence of this nature was considered and rejected in the appeal from his Honour’s decision.  In any event, the transcript does not provide any support for the notion that there is any risk of child sexual abuse by the father as alleged by the mother.
45. [45]
    Exhibit F relevantly contained close-up photographs taken by the mother of alleged injury to the genitalia of one or more of her children.  The photographs were taken in 2018 and revealed red marks or rashes on the genitalia photographed.  Evidence referring to the photographs seems to have formed at least part of the evidence which Baumann J was said wrongfully to have rejected.  In the appeal from his Honour’s decision, the Court noted that the appellant had given oral evidence before Baumann J concerning these pictures and had been cross-examined about the allegations at the trial.  In my view, though the photographic evidence concerning the red marks or rashes was not specifically referred to by Baumann J in his judgment, evidence concerning what the photographs depicted must be taken to have considered and rejected by Baumann J as a sufficient basis for his findings concerning the absence of evidence of risk of sexual harm to the children.  On appeal, the mother failed to displace Baumann J’s findings.  In any event, having reviewed the photographs myself and noting the absence of any credible or reliable evidence which linked what was there depicted to sexual abuse by the father (and noting that the mother’s own opinion evidence amounts to neither), I find that the photographs do not provide any support for the notion that there is any risk of child sexual abuse by the father as alleged by the mother.
46. [46]
    Exhibit H was a copy of an affidavit filed in the Federal Circuit and Family Court sworn 29 May 2020 which amongst other things discussed those photographs and the circumstances in which they were taken but in which, curiously, the appellant expressly disclaimed any intention to suggest that the father was a paedophile, that her case in relation to the custody of her children was a “sexual abuse case”, or any assertion that the father had actually committed sexual abuse.  Her essential contention in the affidavit was that the father was employing a court strategy aimed at manipulating her into making a false sexual abuse allegation thereby adversely affecting her custody case.  Despite her express disclaimer of the view that there had been actual sexual abuse, the mother did depose to the existence of a risk of sexual abuse.  And it is obvious from my earlier discussion of the proceedings before Baumann J and on appeal, that her views changed and strengthened as time went on.  However, the mother’s affidavit was long on the expression of inadmissible opinion evidence and assertion by her, but short to the point of non-existence of any actual evidentiary support for the notion that there is any risk of child sexual abuse by the father as she alleged.
47. [47]
    Exhibit G comprised copies of what was said to be an extract from a diary of her daughter found in 2023 which contains a sketch which the appellant contended, wrongly in my view, was a depiction of a child engaging in oral sex.  Also comprised in the exhibit was a photograph of a blog apparently accessed on a child’s smart phone, which was said to have depicted a penis.  Again, and as was the position in relation to the Exhibit F photographs, there was an absence of any credible or reliable evidence which linked what was there depicted to sexual abuse by the father of his child.  The material contained in exhibit G does not provide any support for the notion that there is any risk of child sexual abuse by the father as alleged by the mother.
48. [48]
    Contrary to the mother’s assertion that the evidence to which her affidavit referred had proved the validity of her concerns “beyond reasonable doubt”, I find that the evidence did not provide any support for the notion that there is any risk of child sexual abuse by the father as alleged by her.
49. [49]
    The primary judge was correct to refuse the mother leave to file the originating application and supporting material insofar as it sought to have this Court exercise parens patriae jurisdiction to respond to an imminent risk of harm to children.  There was no arguable factual basis for the exercise of that jurisdiction, even if there was, as a matter of law, jurisdiction to exercise it in the way which the mother sought to have it exercised.  Further, the refusal to exercise jurisdiction caused no substantial injustice to the mother.
50. [50]
    It is not necessary to consider individually any of the other bases upon which the mother contended that the primary judge erred.

Alleged error in failing to exercise jurisdiction to issue orders by way of “common law judicial review”

51. [51]
    In the present case, the primary judge correctly described what had been sought by the mother in these terms:

“What appears to be proposed … is a broad judicial review against the judgment and orders of McGinness DCJ made on 17 September 2020, and Magistrate Dowse made on 5 December 2019, and all prior hearings in that matter, but with the State and the Commonwealth required to produce a very wide range of documents in any way connected with the applicant’s family.”

52. [52]
    The primary judge went on to conclude that such a judicial review would be incompetent because the decisions of Magistrates and District Court Judges were susceptible to appeal, but not to judicial review.  His Honour was right to conclude that the broad merits review sought by the mother would be incompetent, but inaccurate in the reasons which he expressed for that conclusion.
53. [53]
    First, while the decision of the Magistrates Court was susceptible to appeal to the District Court, the decision of the District Court on appeal was not.  Section 169(2) of the Domestic and Family Violence Protection Act 2012 (Qld) provided that the appeal decision was final and conclusive.
54. [54]
    Second, the decision of the District Court judge was subject to review for jurisdictional error in the exercise of the supervisory jurisdiction of the Court.  In DU v Jackson (DCJ) I made these observations:

“In the present case the District Court judge’s jurisdiction to exercise judicial power was conferred on him by Division 5 of Part 5 of the Domestic and Family Violence Protection Act 2012.  It is settled law that the Supreme Court has a supervisory jurisdiction which is the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court, and which it is beyond the power of the State legislature to exclude.  If the District Court judge was mistaken or had disregarded the nature or limits of his functions or powers on the appeal before him, then he would have made a jurisdictional error.  A person aggrieved of that error could obtain an appropriate remedy from the Supreme Court in the exercise of its supervisory jurisdiction.”

55. [55]
    But the inaccuracy by the primary judge went nowhere because the documents sought to be filed neither identified jurisdictional error nor sought judicial review for jurisdictional error.  To the contrary, the material which the mother sought to file seemed, incorrectly, to conceive that “common law judicial review” is something akin to a royal commission or, possibly, to a merits review by a rehearing de novo.  The primary judge was right to dismiss the application for leave to file in relation to the documents which sought a merits review of the impugned decisions.

Other observations concerning the proceeding the mother seeks to commence

56. [56]
    For completeness, I make some two further observations concerning the proceeding which the mother seeks to commence.
57. [57]
    First, it may be that what the mother really wants to achieve is not properly characterised as a form of judicial review.  In this Court when asked what the nature of the jurisdiction she sought to have the Supreme Court exercise when she referred to “common law judicial review”, the mother said that the remedy she wanted was to quash the original domestic violence order made by Magistrate Dowse because it was  “affected by fraud, tainted by fraud”, and to that end the mother cited McDonald v McDonald (1965) 113 CLR 529.  When asked whose fraud it was that would justify such a remedy, she answered:

“The other respondents, so those being the Queensland Police, [the father], [the mother’s former lawyer], she failed to perform statutory duty, Child Safety for failing to investigate the matter and erring in their jurisdiction, and I was told by Justice Freeburn that I had to add the State of Queensland if I wanted any kind of cost – remedy in terms of damages, which would be a civil claim.”

58. [58]
    The courts of Queensland undoubtedly have jurisdiction to set aside orders obtained by fraud: see r 667 of the Uniform Civil Procedure Rules and, in relation to the equitable jurisdiction to grant such relief, Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) (2018) 264 CLR 165.
59. [59]
    However, this proceeding provides no occasion to examine in any detail the nature of either jurisdiction, or to identify in which Court it would be appropriate for the mother to seek to commence a proceeding in the event that she truly wished to have orders set aside on the basis that they were obtained by fraud.
60. [60]
    It is absolutely clear that any attempt to invoke either jurisdiction would have to be done clearly and with specificity.  And because any attempt to do so would be likely to involve substantial disputes of fact, compliance with rules 9 and 11 of the Uniform Civil Procedure Rules would require that such relief should be pursued by claim and an accompanied statement of claim in which the fraud was alleged with the degree of specificity which the rules of pleading require.^[7]
61. [61]
    The documents which the mother has sought to file do not on their face invoke the Court’s jurisdiction to have orders set aside for fraud.  Moreover, nowhere is any person’s fraud identified clearly or with any specificity.  There is nothing which approaches a pleaded case, let alone one which is properly pleaded.  If this is what the appellant is seeking to do, she has not complied with the applicable procedural rules.  The appellant suffers no serious injustice in being denied leave to file the documents sought to be filed if, by filing those documents, she sought to invoke the Court’s jurisdiction to set aside judgments of lower Courts on the basis that they were obtained by fraud.
62. [62]
    Second, the documents which the mother has sought to file contain suggestions that she seeks to recover damages from the State of Queensland and, possibly, other persons.  Again, because any attempt to do so would be likely to involve substantial disputes of fact, compliance with rules 9 and 11 of the Uniform Civil Procedure Rules would require that such relief should be pursued by claim and an accompanied statement of claim.  And again, there is nothing which approaches a pleaded case, let alone one which is properly pleaded.  If this is what the appellant is seeking to do, she has not complied with the applicable procedural rules.  The appellant suffers no serious injustice in being denied leave to file the documents sought to be filed if, by filing those documents, she sought to invoke the Court’s jurisdiction to make an award of damages.

Conclusion

63. [63]
    The appeal should be dismissed.
64. [64]
    RYAN J:I agree with Bond JA.
65. [65]
    COOPER J:I agree with Bond JA.