Queensland College of Teachers v Borchardt
[2010] QCAT 432
•1 September 2010
| CITATION: | Queensland College of Teachers v Borchardt [2010] QCAT 432 |
| PARTIES: | Queensland College of Teachers |
| V | |
| Mr Max William Borchardt |
| APPLICATION NUMBER: | OCR046-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 1 September 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe (presiding), Beverley Day, Ron Joachim |
| DELIVERED ON: | 1 September 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The respondent is prohibited from applying for registration or permission to teach for a period of 4 years from the date of hearing. 2. Within 12 months of applying for registration, the respondent obtain referral for treatment to a registered psychologist and that he participate in therapy, such therapy to include the following: (a) differentiating between personal and professional relationships; (b) development and maintenance of professional standards when working with young people and actively determining and implementing professional boundaries with individual students. (c) risk assessment and early issue identification of potentially problematic situations and venues, as well as initiating realistic solutions for avoiding risk of harm to students. (d) an in-depth examination of the extent and nature of the student to colleague, parent and community trust inherently invested in a teacher; (e) personal and social behaviour that will compromise the professional standing of a teacher and the profession of teaching. (f) what constitutes mixed messages and inappropriate communication. (g) the legal obligation of teachers and tutors. (h) understanding the effect of inappropriate relationships with students. (i) the awareness of trust and power granted to a teacher. (j) developing insight into the circumstances in which the teacher’s own emotional needs have influenced the nature of the relationship with a student. (k) how to deal with personal issues and develop a strong support structure. (l) understanding of, and full adherence to, the Queensland College of Teachers Code of Ethics. 3. At the conclusion of the therapy, the timing to be determined by the psychologist, but no later than 12 months from the commencement of treatment, that the psychologist’s report should be obtained by the respondent and provided to the applicant, such report to include an indication by the psychologist as to whether the psychologist is satisfied that the respondent has adequately understood and addressed each of the points in paragraph 2 of this order. |
| CATCHWORDS : | Fitness to teach – where teacher touched students inappropriately – where student groomed for sexual relationship after leaving school – where teacher’s behaviour continued despite warnings – ss 12(3)(a), 92(1)(h), 115(1)(b), 158(1) and 161(2)(c) Education (Queensland College of Teachers) Act |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr J Gormley, solicitor |
| RESPONDENT: | No appearance |
REASONS FOR DECISION
The teacher in these proceedings is Max William Borchardt, a former approved teacher whose registration certificate expired 6 May 2010.
He was first registered to teach in Queensland on 12 December 1996 and at the time of this hearing was 58 years old.
In November 2009, the Queensland College of Teachers (“QCT”) received information from the Director, Workforce Standards and Performance Unit, Department of Education, Training and the Arts notifying QCT about an investigation.
QCT authorised an investigation into a disciplinary matter and on 21 May 2010, the Professional Practice and Conduct Committee referred the matter to QCAT under section 115(1) (b) of the Education (Queensland College of Teachers) Act 2005.The particulars of the application are that Mr Borchardt, whilst a teacher:
a)Touched a student’s knee without her consent whilst making inappropriate comments in relation to her legs.
b)Whilst a student was standing on a stool placing library books, tickled the back of the student’s knee and ran his fingers up her leg whilst making inappropriate comments.
c)Grabbed a student and started to dance with her.
d)Made inappropriate comments to a student regarding repayment of monies loaned to her, namely “I hope you enjoyed it as much as I did.”
e)Inappropriately touched a student’s forehead against him and grabbed or touched the back of her leg.
f)Whilst two students were in the staff room, stated words to the effect of “Would you like the regular spanking or the extra special spanking?” whilst displaying his wallet with money clearly visible.
g)Laughed and made a comment to another teacher that he could see a student’s underwear during a school karate class.
h)After a student sustained a groin injury during a school karate class, touched the student in the groin area without her consent or invitation.
Sustained an inappropriately close relationship with a student which provided the foundation for a sexual relationship with that person when she ceased being a student. Specifically, this relationship included, but was not restricted to:
i) Giving the student lifts home after school and following karate classes conducted by Mr Borchardt at the school.
ii) Acting as a confidante to the student, allowing and encouraging her to confide in him with regard to her personal problems.
iii) Frequently inviting the student to his house to have dinner with his family.
Mr Borchardt did not attend the hearing or submit any evidence in his defence. The tribunal notes that the substance of the facts before this tribunal was tested in Magistrates Court proceedings and all charges against Mr Borchardt were dismissed. Those hearings involved the application of the criminal standard of proof. They also required proof of elements that are not relevant to matters before this tribunal. Therefore, the tribunal is entitled to, and does, accept that the uncontested particulars of conduct submitted by QCT are proven.
The tribunal is satisfied that, pursuant to section 12(3)(a) of the Education (Queensland College of Teachers) Act, Mr Borchardt has behaved in a way that does not satisfy a standard of behaviour generally expected of a teacher. The tribunal is further satisfied that, prima facie, Mr Borchardt is “not suitable to teach” within the meaning of section 92(1)(h) of the Act and that grounds for disciplinary action pursuant to section 161(2)(c) of the Act exist within the meaning of section 158(1) of the Act.
Penalty
QCT submitted the appropriate penalty is that Mr Borchardt be prohibited from applying for registration or permission to teach for a period of five years on these grounds:
a)Mr Borchardt repeatedly touched or conducted himself towards female students in an inappropriate way or a way that involves sexual connotation.
b)Mr Borchardt developed an inappropriately close and personal relationship with a student and then exploited that relationship to engage in a sexual relationship with the student after she finished school.
c)A school relationship formed the foundation of a later sexual relationship. There was no intervening event or lapse of time such that the inherent power imbalance between student and teacher meaningfully diminished. In fact, significant physical, emotional maturity and age inequalities existed above and beyond the teacher/student relationship in which the student was exploited.
d)The conduct is neither isolated nor can it be regarded as out of character. The conducted extended over a period of two years and involved three students.
e)In criminal proceedings Mr Borchardt accepted that he had been cautioned three times as to the inappropriateness of his habitual behaviour towards students. The conduct involves a degree of persistence despite this intervention.
QCT referred the tribunal to Novosel a decision of the Teachers’ Disciplinary Committee on 30 September 2009. In that case, the respondent’s registration was cancelled for three years and his re-entry was subject to conditions. Novosel is similar to the present case in that:
a)The respondent had a relationship with a student that had developed before the student left school;
b)There was a course of inappropriate conduct with other students.
c)The conduct continued even though the respondent had been warned about the inappropriateness of his behaviour.
d)The respondent showed no insight or remorse and did nothing to assist QCT or the tribunal.
QCT submits that Mr Borchardt’s behaviour is more serious than that of Novosel because:
a)The relationship between Novosel and the student after she left school was limited to kissing and touching, falling short of a sexual relationship.
b)The student involved with Mr Borchardt was much more vulnerable than the student in Novosel.
10. The tribunal considers that the behaviour of Mr Borchardt is very serious and warrants a significant penalty. There are no mitigating factors.
11. In most cases where a penalty of five years has been imposed, the respondent has been convicted of an offence. Although charged, Mr Borchardt has not been convicted of an offence. The tribunal is therefore of the view that something slightly less than a 5-year penalty is appropriate.
12. The orders of the tribunal are:
a)The respondent is prohibited from applying for registration or permission to teach for a period of 4 years from the date of hearing.
b)Within 12 months of applying for registration, the respondent obtain referral for treatment to a registered psychologist and that he participate in therapy, such therapy to include the following:
i) differentiating between personal and professional relationships;
ii) development and maintenance of professional standards when working with young people and actively determining and implementing professional boundaries with individual students.
iii) risk assessment and early issue identification of potentially problematic situations and venues, as well as initiating realistic solutions for avoiding risk of harm to students.
iv) an in-depth examination of the extent and nature of the student to colleague, parent and community trust inherently invested in a teacher;
v) personal and social behaviour that will compromise the professional standing of a teacher and the profession of teaching.
vi) what constitutes mixed messages and inappropriate communication.
vii) the legal obligation of teachers and tutors.
viii)understanding the effect of inappropriate relationships with students.
ix) the awareness of trust and power granted to a teacher.
x) developing insight into the circumstances in which the teacher’s own emotional needs have influenced the nature of the relationship with a student.
xi) how to deal with personal issues and develop a strong support structure.
xii) understanding of, and full adherence to, the Queensland College of Teachers Code of Ethics.
c)At the conclusion of the therapy, the timing to be determined by the psychologist, but no later than 12 months from the commencement of treatment, a psychologist’s report should be obtained by the respondent and provided to the applicant, such report to include an indication by the psychologist as to whether the psychologist is satisfied that the respondent has adequately understood and addressed each of the points in paragraph 2 of this order.
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