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Loy v Director-General, Department of Justice and Attorney-General[2018] QCAT 381

Loy v Director-General, Department of Justice and Attorney-General[2018] QCAT 381

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Loy v Director-General, Department of Justice and Attorney-General [2018] QCAT 381

PARTIES:

JODIE HELEN LOY

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML022-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

6 November 2018

HEARING DATE:

24 October 2018

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The decision of the Director-General, Department of Justice and Attorney-General made on 1 March 2018 is confirmed.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – Blue card – where applicant issued with negative notice – whether exceptional case

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 3, s 5, s 6, s 169, s 221, s 225, s 353, s 354, s 358

Baker v The Queen (2004) 223 CLR 513

Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492

D and Department for Community Development [2007] WASAT 154

Re FAA [2006] QCST 15

R v Kelly [2001] 1 QB 198

RPG v Public Safety Business Agency [2016] QCAT 331

APPEARANCES & REPRESENTATION:

 

Applicant:

S Mills

Respondent:

I McCowie

REASONS FOR DECISION

Introduction

  1. [1]
    This is an application for review of a decision by the Director-General, Department of Justice and Attorney-General, to issue a negative notice in respect of the application by Ms Loy for renewal of her blue card which she made on 1 June 2016.
  2. [2]
    A check undertaken by Blue Card Services disclosed that Ms Loy has the following criminal history:
    1. (a)
      Assault occasioning bodily harm, which took place on 10 March 2000. The police brief records that Ms Loy became involved in a heated argument with her estranged husband in a nightclub. She threw a glass bottle (stubby) at him. The stubby missed her estranged husband but hit another man, which resulted in lacerations above his right eye requiring stitches. Ms Loy was fined $500 and ordered to pay $750 in compensation. No conviction was recorded.
    2. (b)
      Create a disturbance in premises to which a licence or permit relates and refused entry to licensed premises, which took place on 29 June 2013. The police brief records that Ms Loy was observed within a licensed premises approaching people and hitting them several times. She swore loudly and yelled at the people. At the time, she believed her partner had been unfaithful with a person who was on the premises. The police were contacted and moved Ms Loy on, but she later attempted to re-enter the premises a number of times. Ms Loy was fined $500. No conviction was recorded.
    3. (c)
      Drunk or disorderly in premises to which a permit/licence relates, which took place on 28 November 2013. Ms Loy was in a hotel when approached by a woman who confronted her about a relationship issue. Ms Loy lunged at the woman, knocking her backwards off her feet. A violent fight subsequently ensued. At one point Ms Loy sat on the woman and pummelled her about the face causing injuries. Ms Loy was fined $500. No conviction was recorded.
    4. (d)
      Obscene publications and exhibitions, which took place on 29 November 2013. The police brief records that 450 offensive posters were distributed by Ms Loy. They contained two photographs of her former partner, with numerous allegations in relation to his drug addiction, alcoholism, criminal history, sexual preferences and history of being sexually involved with children. The posters also displayed a mobile telephone number and suggested people should contact that number to “hook up” with the man. Ms Loy was convicted and fined $400.
    5. (e)
      Assaults occasioning bodily harm and wilful damage, which took place on 11 February 2017. Ms Loy entered a dwelling and then punched a woman when confronted inside the dwelling. Ms Loy also bit the woman on the thumb during the struggle. Ms Loy was convicted, placed on probation for a year and ordered to pay $500 in restitution.

The “blue card” legislative framework

  1. [3]
    Employment screening for child-related employment is dealt with in chapter 8 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Working with Children Act’). The object of the Working with Children Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in employment or businesses that may involve working with children.[1] It is protective legislation and has been described as ‘precautionary’ in its approach.
  2. [4]
    A child related employment decision[2] is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount.[3] The overriding concern is the potential for future harm to children.
  3. [5]
    As applicable to this case, the Working with Children Act requires that a blue card must be issued unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a blue card to be issued.[4]

What is meant by ‘exceptional case’

  1. [6]
    What constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case.[5]
  2. [7]
    Section 226(2) sets out a non-exhaustive list of matters which must be considered in deciding whether an exceptional case exists in circumstances of a conviction or charge for an offence. Relevantly, consideration must be given to:[6]
    1. (a)
      Whether it is a conviction or charge;
    2. (b)
      Whether the offence is a serious offence, and if it is whether it is a disqualifying offence;
    3. (c)
      When the offence was committed;
    4. (d)
      The nature of the offence and its relevance to employment that may involve children; and
    5. (e)
      In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision.
  3. [8]
    Further, consideration must be given to anything else relating to the commission of the offence that is reasonably relevant to the assessment.[7]
  4. [9]
    The application of the Act is intended to put gates around employment to protect children from harm rather than impose an additional punishment on a person with a criminal history.[8]

The applicant’s evidence and submissions

  1. [10]
    Ms Loy provided the Tribunal with an affidavit dated 16 May 2018, and her life story dated 9 February 2018. She also gave oral evidence at the hearing.
  2. [11]
    Ms Loy recounted a traumatic childhood, in which she was sexually abused and exposed to domestic violence. She married at age 18, and had three children with her former husband.
  3. [12]
    The assault of her former husband on 10 March 2000 took place in circumstances where Ms Loy had gone out to a nightclub six months after giving birth to her youngest child. She was not intoxicated, but was enraged with her former husband for not leaving her alone. Shortly afterwards, the relationship ended in around 2002.
  4. [13]
    Ms Loy subsequently engaged in risky activity, including multiple sexual partners. She eventually commenced a relationship with another man in around 2006. The man was in jail at the time she commenced the relationship, and Ms Loy completed a masters of counselling while he was in jail. After the man’s release from jail, the man was sexually abusive towards Ms Loy.
  5. [14]
    Ms Loy commenced a masters of social work in 2013.
  6. [15]
    On 29 June 2013, she caught the man with another woman and confronted him in a pub.
  7. [16]
    Ms Loy broke up with the man in early November 2013 following a sexual assault, and on or about 28 November 2013 put flyers out about the man. She did not place posters around schools or otherwise near children. While putting out posters, Ms Loy engaged in an altercation with the man’s new girlfriend. At the time, Ms Loy was smoking 30 cigarettes a day, was consuming high amounts of caffeine and was suffering from (undiagnosed) PTSD.
  8. [17]
    Ms Loy’s former partner was subsequently found guilty of raping her. An appeal was heard in November 2016, with a decision delivered on March 2017. This was an incredibly stressful period for Ms Loy.
  9. [18]
    During this period, Ms Loy’s son was in a domestically violent relationship with his girlfriend. In February 2017, Ms Loy entered the girlfriend’s property and damaged things because she was enraged at what the girlfriend was doing to her son.
  10. [19]
    Ms Loy has being seeing a counsellor from the Centre Against Sexual Violence since 2014, and continues to do so. Ms Loy has obtained some insight into her behaviours, and is able to identify triggers. She also has a strong support network.
  11. [20]
    Ms Loy provided the Tribunal with a support letter from King-Tzu Yeh from the Centre Against Sexual Violence dated 11 May 2018. Ms Yeh concluded:

Ms Jodie Loy has been very open and honest in acknowledging her difficulties in coping with conflict in family and intimate relationship issues. Ms Jodie Loy has disclosed to me four incidents involving her criminal record in: 2000, 2013, 2014 and 2017. I note that none of the incidents involved children or young people. Through counselling, self-discipline and growing insight and self-awareness Ms Jodie Loy has become increasingly aware of triggers and situations that could heighten her emotions, so as to remove herself from these situations if necessary. Ms Jodie Loy has also committed to self-care activities to relieve stress rather than allowing stress to build up ….

As Ms Jodie Loy progresses further, we will be looking at finishing counselling in the near future.

  1. [21]
    In her oral evidence, Ms Yeh stated that she was initially ‘shocked’ when she was told about the 2017 offending. However, when she took into account the trauma Ms Loy had been through, it was not so much of a surprise.
  2. [22]
    Ms Yeh also expressed the view that it was important for Ms Loy to have ongoing counselling. In her view, Ms Loy would benefit from regular external or internal supervision to discuss professional or personal stresses.
  3. [23]
    Ms Loy also provided support letters from:
    1. (a)
      Fredericka Chong, a friend and colleague of 10 years;
    2. (b)
      Julie Knox, a friend of 29 years;
    3. (c)
      Raymond Brunker, her manager;
    4. (d)
      Ms Robyn Giddings, her former colleague and friend.
  4. [24]
    These support letters all speak highly of Ms Loy. The writers of these letters did not give oral evidence.

The respondent’s evidence and submissions

  1. [25]
    In assessing whether there is a risk of harm, the respondent applied the evaluative approach endorsed by the Queensland Court of Appeal in The Commissioner for Children and Young People and Child Guardian v Maher which involves identifying and balancing ‘risk’ factors with ‘protective’ factors arising from the circumstances of the particular case.
  2. [26]
    In applying that approach, the respondent identified the following protective and risk factors:

Protective factors

The Respondent submits that the following protective factors are relevant in this matter:

  1. (a)
    the Applicant reports that her offending occurred in response to stressors such as a history of domestic violence, a violent sexual assault and the stress associated with ongoing court proceedings (including an appeal), and the ongoing conflict in her relationship with her son and her son's relationship with his former partner, suggesting that in the absence of such stressors, the Applicant is unlikely to reoffend;
  2. (b)
    the Applicant is in stable employment with the Aboriginal and Torres Strait Islander Community Health Service and has the support of her manager, Raymond Brunker, who states that he is "supporting [the Applicant] to reduce the risk of previous triggers to avoid any mental health relapse and to ensure her social and emotional wellbeing is sound";
  3. (c)
    the Applicant has been consulting with the Centre Against Sexual Violence Inc. since April 2014 for assistance with her history of childhood abuse and domestic violence. Her counsellor, Katherine Yeh, reports that through "counselling self-discipline and growing insight and self-awareness [the Applicant] has become increasingly aware of the triggers and situations that could heighten her emotions, so as to remove herself from those situations, if necessary." The strategies the Applicant uses to manage situations of stress and conflict will be explored further at the hearing;
  4. (d)
    the Applicant has expressed some insight into the impacts of her offending, particularly her obscene publications and exhibitions offence from 2013, and the 2017 assault occasioning bodily harm offence. The extent of the Applicant's insight will be explored further at the hearing; and
  5. (e)
    the Applicant reports to having taken steps to limit her interactions with her son and his partner to reduce the risk of re-offending; and
  6. (f)
    the Applicant has provided supportive references from her friends and colleagues which speak to her life experiences and the support mechanisms she has in place. These references will be further explored at the hearing.

Risk factors

The Respondent further submits that the following risk factors are present:

  1. (a)
    the Applicant reports that much of her offending stemmed from "rage" as a result of her childhood abuse and domestic violence she has experienced, suggesting an ingrained propensity to respond inappropriately to situations of conflict; [I interject to note that I regard this is a highly prejudicial submission, and I place no weight on it.]
  2. (b)
    the Applicant was of a mature age (between 25 and 38 years), and an experienced and tertiary-educated professional with more than ten (10) years' work in Indigenous health and well-being at the time of her most recent offending. The Applicant's offending history, despite her tertiary-education, experience and maturity suggests that she may be likely to re-offend in the future given those usually protective factors were insufficient to prevent the Applicant from offending;
  3. (c)
    some of the Applicant's offending is alcohol-related. It is not clear if the Applicant has attended any counselling or sought any assistance with respect to her alcohol misuse;
  4. (d)
    the Applicant's obscene publications and exhibitions offending in 2013 involved the Applicant distributing 450 flyers about her ex-husband in the Ipswich area. These flyers identified her ex-husband and revealed his contact details, as well as alleged his sexual involvement with children. These flyers caused concern in the community and prompted hundreds of people to contact the police. The Applicant told police that she "was sick of [her ex-husband] treating her like this behind closed doors .... [and] that she was sorry to put the community through this but that her intention was for people to see ... [who] [her former partner] .... really was." The Applicant's conduct in response to an argument with her ex-husband showed no regard to the impacts which her actions might have and suggests that the Applicant is prepared to respond to situations of stress or conflict without regard to the potential and foreseeable adverse impact of her actions on others;
  5. (e)
    the Applicant's 2017 offending involved the Applicant, after consuming an excessive amount of alcohol, entering the complainant's house, smashing a glass door, removing and smashing food from the complainant's refrigerator, damaging furniture in a children's bedroom, charging at the complainant on her return to the property and biting the complainant's finger. Witnesses had to intervene to separate the Applicant and the complainant. The sentencing Magistrate considered that this was a "serious example of assault occasioning bodily harm;"
  6. (f)
    despite a gap in her offending history of 13 years from 2000 to 2013, the Applicant re-offended in 2013 and in 2017, suggesting that the Applicant's triggers for offending have not been fully resolved and lie dormant for periods of time;
  7. (g)
    the Applicant was placed on probation for twelve (12) months for her 2017 offending (on 3 October 2017) and has only recently completed this probation. Insufficient time has passed for the Tribunal to be satisfied that the Applicant is unlikely to re-offend without the threat of further punishment inherent in the probation period; and
  8. (h)
    overall, the Applicant's offending and alleged offending raises concerns about her ability to judge appropriate behaviour, exercise self-control and act in the best interests of others, particularly children. The alleged behaviour suggests she is not an appropriate person to safeguard the best interests of children and young people who may be placed in her care. Of particular concern is that while she was offending in 2013 and 2017, the Applicant was in a professional position whereby she should have been acutely aware of the negative impact of her behaviour on others.

[footnotes omitted]

Is this an exceptional case?

  1. [27]
    The factors in s 226(2) are factors that must be considered in making a decision about whether it is an exceptional case.
  2. [28]
    In terms of the level of satisfaction required to meet s 221(2), it has been accepted that while certainty is not required, the Tribunal must be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that this is an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.[9]
  3. [29]
    There is no scope under the legislation for the Tribunal to issue a positive notice with conditions, for example, that the adult be supervised when working with children.[10]
  4. [30]
    Looking at the factors which must be considered and at factors I consider relevant, I make the following observations:

Whether the offence is a conviction or a charge

  1. [31]
    Ms Loy has had findings of guilt made against her in relation to the offences set out in her criminal history above. Although no convictions were recorded for offences committed in 2000 and 2013, the findings of guilt are regarded as convictions as defined in Schedule 7 of the Working with Children Act.

Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence

  1. [32]
    The offences are not serious or disqualifying offences.

When the offence was committed or is alleged to have been committed

  1. [33]
    The offences were committed in 2000, 2013, 2014 and 2017.

The nature of the offence and its relevance to employment or carrying on a business that involves or may involve children

  1. [34]
    Ms Loy has a history of aggressive behaviour, repeated in offences committed over 17 years apart. Children are dependent upon adults around them to manage conflicts in an appropriate manner. Ms Loy’s offending suggests that she lacks the appropriate skills to manage conflict in an appropriate way.

In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision

  1. [35]
    Ms Loy was fined various amounts between $400 and $500, ordered to pay compensation or restitution between $500 and $750, and placed on probation for a year.

Other relevant circumstances

  1. [36]
    I have considered the risk and protective factors in Ms Loy’s life.
  2. [37]
    I have considerable sympathy towards Ms Loy in respect of her difficult upbringing, and the domestic and sexual violence she has been exposed to as an adult. Ms Loy is to be commended on her educational and professional accomplishments against this background.
  3. [38]
    I acknowledge that Ms Loy has undergone counselling over a period of years, and has obtained some insight into her behaviours. She is able to identify triggers and has a strong support network. In relation to her November 2013 offending, she avoided placing posters around schools. Ms Yeh was complimentary in relation to Ms Loy’s protective attitude towards children, however she was also clear that Ms Loy continued to require counselling in some form as part of her ongoing management of stress.
  4. [39]
    Although their evidence was not tested by cross-examination, the letters of support provided are also complimentary of Ms Loy’s qualities.
  5. [40]
    However, in assessing whether an exceptional case exists, I place considerable weight on Ms Loy’s most recent offending on 17 February 2017. This offending took place after her blue card application was lodged on 1 June 2016. Further, the offending appears to be of a similar nature to Ms Loy’s previous offending in 2000, 2013 and 2014 – that is, it involved an inability to control her anger.
  6. [41]
    Ms Loy’s most recent offending took place approximately 18 months ago, and her probation in respect of this offending ended on 3 October 2018, only three weeks prior to the hearing. While Ms Loy has properly taken steps to reduce the stressors in her life in the period since her most recent offending, the corollary of this is that she has had limited opportunities to demonstrate that she has the ability to control her anger in situations of high stress.
  7. [42]
    I am not satisfied that a sufficient period of time has passed without further re-offending for her to have demonstrated that she has fully addressed the serious issues raised in relation to her criminal offending. It may be that after a more lengthy period of non-offending a different conclusion would be reached.

Conclusion

  1. [43]
    Based on the findings of fact I have made and weighing all of the matters in s 226(2) and the other circumstances I have considered, I have reached the conclusion that there is an exceptional case in which it would not be in the best interests of children for a positive notice and blue card to be issued.
  2. [44]
    I therefore confirm the decision under review.

Footnotes

[1]Working with Children Act, s 5.

[2]Child related employment decision is defined to include a chapter 8 reviewable decision: Working with Children Act, s 358.

[3]Working with Children Act, s 360. See also s 6.

[4]Working with Children Act, s 221.

[5]Re FAA [2006] QCST 15, [22].

[6]Working with Children Act, s 226(2)(a).

[7]Working with Children Act, s 226(2)(e).

[8]Re FAA [2006] QCST 15, [29], citing the second reading speech Commissioner for Young Children and Young People Bill, p 4391.

[9][2004] QCA 491, [30].

[10]Working with Children Act, s 353(a); RPG v Public Safety Business Agency [2016] QCAT 331, [27].

Close

Editorial Notes

  • Published Case Name:

    Jodie Helen Loy v Director-General, Department of Justice and Attorney-General

  • Shortened Case Name:

    Loy v Director-General, Department of Justice and Attorney-General

  • MNC:

    [2018] QCAT 381

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    06 Nov 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Baker v R (2004) 223 CLR 513
1 citation
Jump To
Cite 1 - (2004) 223 CLR 513
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
1 citation
Jump To
Cite 1 - [2004] QCA 492
D and Department For Community Development [2007] WASAT 154
1 citation
Jump To
Cite 1 - [2007] WASAT 154
R v Kelly [2001] 1 QB 198
1 citation
Jump To
Cite 1 - [2001] 1 QB 198
Re FAA [2006] QCST 15
3 citations
Jump To
Cite 1 - [2006] QCST 15
Cite 2 - [2006] QCST 15
Cite 3 - [2006] QCST 15
RPG v Public Safety Business Agency [2016] QCAT 331
2 citations
Jump To
Cite 1 - [2016] QCAT 331
Cite 2 - [2016] QCAT 331
Zipside Pty Ltd v Anscor Pty Ltd [2004] QCA 491
1 citation
Jump To
Cite 1 - [2004] QCA 491

Cases Citing

Case NameFull CitationFrequency
Jodie Helen Loy v Director-General, Department of Justice and Attorney-General [2023] QCAT 2332 citations
1

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