Queensland College of Teachers v DRR
[2012] QCAT 671
| CITATION: | Queensland College of Teachers v DRR [2012] QCAT 671 |
| PARTIES: | Queensland College of Teachers (Applicant) |
| v | |
| DRR (Respondent) |
| APPLICATION NUMBER: | OCR030-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 13 August 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Margaret McLennan, Member Joanna Lindgren, Member Kate Buxton, Member |
| DELIVERED ON: | 16 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | [1] The teacher’s registration or permission to teach is cancelled as at the date of this decision. [2] The teacher is prohibited from reapplying for registration as a teacher for not more than 30 months from the date of this decision. [3] The Queensland College of Teachers notify the relevant education authority in the Northern Territory of this decision and orders. [4] In the event that the teacher seeks registration as a teacher in Queensland after the expiry of the prohibition period, the following notation about the teacher be entered in the register: A. He must consult a registered psychologist for counselling or therapy and he must provide the psychologist with the following documents: a) report dated 9 December 2011 to the Disciplinary Committee; and b) the tribunal reasons for decision and this order; and B. The teacher must provide the Queensland College of Teachers with a detailed psychologist’s report which demonstrates that he has addressed the following issues: a) the development and maintenance of professional standards when working with young people; b) awareness of the power imbalance inherent to the teacher/student relationship including the obligations that flow from this; c) awareness of and commitment to what is appropriate physical contact and communication in a teacher and student relationship; d) an in-depth examination of the extent and nature of the student, parental and community trust invested in a teacher; e) awareness of behaviour that may compromise the professional standing of a teacher and the profession of teaching; and f) understanding and full adherence to the QCT Code of Ethics and similar policies. [5] Publication of the teacher’s name, the name of the complainant, the names of the complainant’s former classmates, the teacher’s wife, the names of the school in Queensland and the Northern Territory is prohibited. [6] These reasons are to be published in a de-identified format in compliance with this order. [7] Any person who has access to the file of material in this case is prohibited from publishing the information contained in [5] of this order.[1] |
[1] Amended by order of the Tribunal 4 January 2013.
| CATCHWORDS: | Approved teacher – not suitable to teach – whether the matter warrants the grant of a non-publication order Education (Queensland College of Teachers) Act 2005 Briginshaw v Briginshaw (1938) 60 CLR 336 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The teacher in these proceedings is Mr DRR (the teacher) who was first registered to teach in Queensland on 22 April 2004. He is currently registered as a teacher in Queensland.[2] He is an “approved teacher” as defined by the Education (Queensland College of Teachers) Act 2005 (the Act).[3] At the time of this hearing he was 31 years of age.
[2] Section 223(e) certificate.
[3] Schedule 3 definition “approved teacher”.
In an application received on 25 January 2012 in the Queensland Civil and Administrative Tribunal (the tribunal), the Queensland College of Teachers (QCT) on the basis of disciplinary information received, commenced proceedings pursuant to s 97 of the Act. The QCT formed a reasonable belief that a ground for disciplinary action existed against the teacher pursuant to s 92(1)(h) of the Act that: the teacher was not suitable to teach.
In relation to the standard of proof applicable in this tribunal, the determination of a disciplinary matter is an administrative function where the appropriate standard is the reasonable satisfaction of the decision-maker with that degree of satisfaction varying according to the gravity of the fact to be proved: Briginshaw v Briginshaw (Briginshaw).[4] It remains the civil standard of the balance of probabilities but the gravity which is involved is that if the tribunal is satisfied that the conduct occurred as alleged by the QCT, a teacher may have his employment suspended or terminated.
[4] (1938) 60 CLR 336 at 361-62.
The QCT relies on the Report dated 9 December 2011 with annexures to a Disciplinary Committee. The QCT seeks an order under s 160(2)(d)(j) of the Act that the teacher’s registration be cancelled and that he be prohibited from reapplying for registration as a teacher for a period of 18 months from the date of the order made by the tribunal.[5] In addition QCT sought under s 160(2)(i) of the Act that the register of teachers be endorsed with particular notations in relation to any re-application by the teacher to teach.
[5] QCT Submissions dated 5 June 2012 paragraph 92.
Background
In 2009 and 2010 the teacher worked at a private high school in South East Queensland (SE Qld) and he was employed by the relevant Queensland (Qld) education authority.[6] For the 2011 school year the teacher took unpaid leave from the Qld education authority to work as a teacher at a community education centre, a school governed by the relevant education authority in the Northern Territory (NT).
[6] QCT Submissions dated 5 June 2012.
On 21 June 2011 the Qld education authority advised the teacher of its intention to undertake an investigation into allegations that the teacher had failed to maintain professional boundaries with a former student of the private high school.
On 11 July 2011, the teacher resigned from the Qld education authority but continued to work at the community education centre in the NT. Given the teacher’s resignation the Qld education authority did not conduct the investigation.
At all relevant times:
a) The teacher was employed as a teacher by the Qld education authority;
b) The former student was 17 years of age and completed Year 12 in 2010 at the private high school in SE Qld; which school she had attended from the beginning of Term 2, 2009 when she completed Year 11 to the end of the 2010 school year.
c) The teacher was the former student’s Year 11 Multi-strand Science teacher and her Year 12 Biology teacher.
The evidence relied on by the QCT consists of interview notes and documentation provided by the Qld education authority as well as signed statements from the student and another former student (Friend 1) provided to the QCT. A QCT Senior Investigator analysed the evidence and provided a Report to a Disciplinary Committee with respect to this matter. It is the evidence contained in this report upon which the QCT relies in the tribunal.
The QCT alleges the basis of the disciplinary action is that between 21 November 2010 and 25 March 2011, whilst employed as a teacher by the Qld education authority, the teacher engaged in sexualized behaviour with a former student characterised by: sending text messages of a personal and intimate nature to the former student. The particulars of this allegation consisted of text messages where the teacher texted the former student with words to the effect of:
a) “I miss your company and our conversation. Did you ever want more from me?”
b) That there was a chemistry between them;
c) He was sexually aroused by her;
d) His cock was rock hard (or throbbing) thinking of her;
e) Enquiring whether she was sexually aroused by him;
f) Discussing sex in general;
g) Trying to arrange a meeting to have sex with her; and
h) That he had to conceal these texts from his partner.
It is alleged he sent a photograph of an erect penis to the former student via a text message with words to the effect of, “I re-read our text messages and this is what happened.”
It is alleged he sent emails of a personal and intimate nature to the former student. The particulars of the emails sent by the teacher included certain passages of a sexualised nature. For example when asked by the former student in an email dated 11 December 2010 as to whether she was the first student the teacher had had this sort of relationship with, the teacher replied, in an email dated 11 December 2010:
“YES, I have never done anything like this before.”
Teacher’s response
The teacher declined to provide a response to the Qld education authority, or provide a submission with respect to this matter to the QCT. The teacher’s version of events is limited to his Notice dated 8 May 2012 as to which allegations he agreed with or disputed. It is noted that the teacher has admitted some of the allegations, not confirmed or denied other allegations, and denied some of the allegations.
However, in a submission dated 27 June 2012 from his solicitor, the teacher submitted that, with one exception, the disciplinary sanction[7] and orders[8] sought by the QCT are appropriate. The exception he submitted was that the appropriate period for which he should be prohibited from re-applying for registration as a teacher is 12 months, not 18 months as sought by the QCT.
[7] Submission dated 27 June 2012 to the tribunal by the teacher’s solicitor paragraph 2.
[8] Submission dated 27 June 2012 to the tribunal by the teacher’s solicitor paragraph 4.
The solicitor referred to paragraph 83 of the QCT submission to the tribunal where it was stated:
“It is submitted that [the teacher’s] actions amount to conduct that does not satisfy a standard of behaviour generally expected of teachers and he has behaved in a disgraceful or improper way that shows he is unfit to be registered as a teacher.”[9]
[9] Section 12(3) of the Act.
The solicitor stated that the teacher conceded:
“... it has been established that his relevant conduct does not satisfy a standard of conduct generally expected of teachers, but submits that that conduct does not establish that he has behaved in a disgraceful or improper way that shows he is unfit to be registered as a teacher.
Accordingly, [the teacher] submits that the basis on which the relevant ground for disciplinary action has been established is limited to that his conduct does not satisfy a standard of behaviour generally expected of teachers.”[10]
[10]Submission dated 27 June 2012 to the tribunal by the teacher’s solicitor paragraphs 5 and 6.
The submission points out omissions in the emails contained in the QCT evidence and indicates as mitigation the teacher’s conduct.[11] The submission quotes an email from the former student commencing:
“I am not angry at the fact that you wanted to end things. I don’t believe there would have been anything positive that could have come from it. But I knew that I couldn’t say no if the offer was there because of the feelings I had for you so I had to do everything in my power so you would make the decision for me. Hence the massive email on consequences etc etc. I knew that you wouldn’t follow through the minute that this started.”[12]
[11] See paragraph 18 below.
[12] Submission dated 27 June 2012 to the tribunal by the teacher’s solicitor paragraph 15.
The submission states:
“Two things are explicitly clear in this passage: (1) it was entirely a matter for [the teacher] whether he did or did not take up the opportunity of a sexual relationship with [the former student]; and (2) the view she had formed of him was that she ‘knew that you wouldn’t follow through the minute that this started’, and it is significant indeed that her judgement in this respect was vindicated. [The teacher] had the opportunity but did not take it up.”[13]
QCT Evidence[14]
[13] Submission dated 27 June 2012 to the tribunal by the teacher’s solicitor paragraph 16.
[14] The tribunal has relied on and used the detailed submissions of the QCT.
The teacher and the former student had a friendly teacher student relationship during the period the teacher taught her.[15] At the end of her school year, she gave the teacher a thank you card for being such a good teacher. The former student wrote a message on the card appreciating the teacher for being such as positive male influence for her, noting she did not have any male figures in her life.[16] She enclosed her mobile phone number.[17]
[15] Report dated 9 December 2011 to Disciplinary Committee page 115.
[16] Report dated 9 December 2011 to Disciplinary Committee paragraph 16 on page 116.
[17] Report dated 9 December 2011 to Disciplinary Committee paragraph 16 on page 116.
Approximately two weeks later the teacher texted the former student congratulating her on her biology result. From that point on the teacher and the former student had text conversations with each other in a social, friendly context. The former student estimates that approximately 200 text messages were exchanged between her and the teacher, and that they had text conversations every few days.[18]
[18]Report dated 9 December 2011 to Disciplinary Committee paragraphs 17 and 18 on pages 116 and 117.
The former student provided evidence that the teacher’s texts were of a social and personal nature but the more texts messages that were exchanged, the more personal the messages became.[19] The teacher started texting her about sexual matters and they had some explicit sexual conversations via text. The former student declined to provide the QCT with full particulars of what was said about sex in her text exchanges with the teacher, as she felt uncomfortable and embarrassed about repeating the actual content of these messages.[20]
[19] Report dated 9 December 2011 to Disciplinary Committee paragraph 21 on page 117.
[20] Report dated 9 December 2011 to Disciplinary Committee paragraph 31 on page 118.
The former student has been unable to supply the actual text messages exchanged between her and the teacher as she deleted them; however the QCT submitted that her evidence is credible. Her evidence is supported by the available email evidence[21] and is corroborated by her friends, Friend One[22] and another former student (Friend Two)[23] at least to the extent she was having personal text conversations with the teacher.
[21] Report dated 9 December 2011 to Disciplinary Committee pages 68 to 104.
[22] Report dated 9 December 2011 to Disciplinary Committee pages 121-122.
[23] Report dated 9 December 2011 to Disciplinary Committee pages 39-40.
The evidence of the former student is consistent in both the versions of events she supplied to Qld education authority[24] and the QCT[25]. Her evidence has credibility in that she could have fully outlined the sexual matters she and the teacher discussed to emphasise his misconduct but did not. She limited her evidence because she was more concerned about her own embarrassment than trying to place the teacher under further scrutiny.
[24] Report dated 9 December 2011 to Disciplinary Committee pages 41-42 and 49-50.
[25] Report dated 9 December 2011 to Disciplinary Committee pages 114-118.
The QCT submitted that at the relevant time, the former student was vulnerable. From around October 2010 the former student had moved out of her mother’s house due to a fractured relationship with her mother and she was renting a house owned by her grandparents.[26]
[26]Report dated 9 December 2011 to Disciplinary Committee paragraph 3 on page 114 and evidence provided by the former student s mother at page 51.
It would appear at this time the former student did not have a trusted father figure in her life.[27] The former student’s mother described the former student as having low self-esteem, lonely, sexually inexperienced and feeling isolated as unlike her peers she was not involved in a relationship.[28] She described her daughter as having an outward appearance of confidence, but in fact she was vulnerable and innocent.[29]
[27]Report dated 9 December 2011 to Disciplinary Committee re the former student’s email dated 14 December 2011 page 83.
[28] Report dated 9 December 2011 to Disciplinary Committee page 43.
[29] Report dated 9 December 2011 to Disciplinary Committee page 51.
The former student stated in an email dated 11 December 2010 to the teacher:
“If we meet up. I know this is going to be a one night thing and that we are probably going to sleep together. I want you to know that I am not easy. Its just that I have known you for a fair while and I trust you. Thats why I think you should know that I am a virgin. Um wouldn’t be surprised if that is a massive deal breaker. But you needed to know. So there it all is.”[30]
[30] Report dated 9 December 2011 to Disciplinary Committee page 81.
The former student provided evidence that she was a willing participant in an exchange of sexual texts with the teacher around Christmas 2010. However she told the Qld education authority staff that the teacher initiated this exchange and the nature of the discussion about sex.[31]
[31] Report dated 9 December 2011 to Disciplinary Committee page 49.
In an email dated 14 December 2010 to the teacher, the former student is angry at him for dismissing her after the sexual texting. In this email she stated:
“Shouldn’t you have thought this through before you instigated this entire thing…But not only did you drag me into this. Which admittedly I allowed to happen…”[32]
In response to this email, the teacher replies in an email dated 20 December 2010:
“Again I am sorry for letting things get out of hand, I take full responsibility for getting carried away on the emotion.”[33]
[32] Report dated 9 December 2011 to Disciplinary Committee pages 83-84.
[33] Report dated 9 December 2011 to Disciplinary Committee page 85.
In his Notice to QCAT as to which allegations he agrees with and which allegations he disputes, the teacher admits to sending text messages of a personal and intimate nature to the former student.
Allegation 1(a): sending text messages of a personal and intimate nature to the former student particularly texting her with words to the effect of:
“I miss your company and our conversation. Did you ever want more from me?”
The teacher has denied this allegation.[34] His basis of denial is that QCT produced no text containing these words and instead relied on assertions from the former student.
[34] The teacher’s Notice of agreed/disputed allegations paragraph 2a.
The former student provided direct evidence that in early December 2010 not long after she had finished school, the teacher texted her congratulations on securing a second interview for a job she was after. She stated that around midnight the teacher then texted her words to the effect of:
“I miss your company and our conversation. Did you ever want more from me?”[35]
[35] Report dated 9 December 2011 to Disciplinary Committee paragraph 19 on page 117.
It was this message that sparked more personal messages between the former student and the teacher culminating in sexual discussions.[36]
[36] Report dated 9 December 2011 to Disciplinary Committee paragraph 20 on page 117.
The QCT submitted that the emails passing between the former student and the teacher, although not a complete set, do paint a picture of personalised sexual discussions having taken place between her and the teacher.[37]
[37] Report dated 9 December 2011 to Disciplinary Committee pages 68-104.
In particular in an email dated 24 March 2011 to the former student in response to an earlier email from her questioning him as what his intentions were when the sexual texting started, the teacher stated:
“I cannot honestly say what happened that night of the texting or what my intentions were. I think I wanted to see if what I thought was going on was true – it is always nice to know that someone thinks those things about you. I will also say that I have seen those same qualities in you. I also need to expressly say that the following must be deleted upon reading as it could be very damaging to me. I will be honest that over the past 4 years of my teacher (since back in Aus really) I have often toyed with the flirtation of how thrilling it would be to have a taboo relationship with a girl in school- call it a fantasy if you will. I have never acted on it and never really thought I had a chance with anyone I have taught/known. Then you came along. Unfortunately I am already in an amazing relationship with the woman I am going to marry- doesn’t timing suck!
Wow – I am scared to even type that let alone send it.”[38]
[38] Report dated 9 December 2011 to Disciplinary Committee page 104.
It is noted the teacher admits to discussing sex in general with her and stating that there was a chemistry between them.[39] He agreed to enquiring whether she was sexually aroused by him.[40]
[39] The teacher’s Notice of agreed/disputed allegations paragraph 2b.
[40] The teacher’s Notice of agreed/disputed allegations paragraph 2e.
QCT submitted that this particular allegation is proven; in that it is more likely than not that the teacher, in a sexual context, posed the question to the former student: “Did you ever want more from me.” His email dated 24 March 2011 where he stated that he held a fantasy about having a taboo relationship with a school girl; never really thought he had a chance with anyone until the former student came along; his admissions as to having general sexual discussions with her and her direct evidence supported by the general email evidence are the bases for the proof.
Allegation 1(b): sending text messages of a personal and intimate nature to the former student particularly texting her with words to the effect of:
“That there was a chemistry between them.”
The teacher has admitted this allegation.[41].
[41] The teacher’s Notice of agreed/disputed allegations paragraph 2b.
The former student provided evidence that the teacher texted her around 10 December 2010 that there was a chemistry between them.[42]
[42] Report dated 9 December 2011 to Disciplinary Committee paragraph 23 at page 117.
In light of the teacher’s admission and her direct evidence, it is submitted this allegation has been proven.
Allegations 1(c) and 1(d): sending text messages of a personal and intimate nature to the former student. In particular texting the former student with words to the effect of:
(c) “He was sexually aroused by her.”
(d) “His cock was rock hard (or throbbing) thinking of her.”
The teacher had denied these two allegations.[43]
[43] The teacher’s Notice of agreed/dispute allegations paragraph 2c and 2d.
The former student provided direct evidence that in the text conversation after talking about the chemistry between them, the teacher told her that he was sexually aroused by her and that his cock was rock hard or throbbing.[44]
[44]Report dated 9 December 2011 to Disciplinary Committee paragraph 23 on page 117 and page 42.
The emails provided in this matter passing between the former student and the teacher though incomplete, paint a picture of personalised sexual discussions having taken place between her and the teacher.[45]
[45] Report dated 9 December 2011 to Disciplinary Committee pages 68-104.
In particular the teacher stated in an email dated 20 December 2010 sent to the former student in response to her being upset at how he ended the sexual discussions with her at that time:
“It was really tough for me not to go through with it and not for the implications but because I really do feel a genuine connection with you and I have enjoyed that over the last 2 years (as you mentioned in your email). I was not trying to say you would have a 1 night stand I was actually trying to show you the respect you deserve by saying lets not do something that has no long term future when we both know that going in...
Again I am sorry I let things get out of hand, I take full responsibility for getting carried away on the emotion...
Please understand that I was not trying to lecture or speak down to you – I guess the emotion scared me a little (I am male after all) but I simply felt that more bad than good would come from us carrying through with plans.”[46]
[46] Report dated 9 December 2011 to Disciplinary Committee page 85.
In an email dated 24 March 2011 to the former student in response to an earlier email from her questioning him as what his intentions were when the sexual texting started, the teacher stated:
“I cannot honestly say what happened that night of the texting or what my intentions were. I think I wanted to see if what I thought was going on was true – it is always nice to know that someone thinks those things about you. I will also say that I have seen those same qualities in you. I also need to expressly say that the following must be deleted upon reading as it could by very damaging to me. I will be honest that over the past 4 years of my teacher (since back in Aus really) I have often toyed with the flirtation of how thrilling it would be to have a taboo relationship with a girl in school- call it a fantasy if you will. I have never acted on it and never really thought I had a chance with anyone I have taught/known. Then you came along. Unfortunately I am already in an amazing relationship with the woman I am going to marry- doesn’t timing suck!
Wow – I am scared to even type that let alone send it.
OK this is the answer to your question. Yes I felt a connection to you. If I were single I probably would have tried to encourage you a bit more and most likely would have acted upon it. That doesn’t mean we had a future because lets be honest, it would’ve had to have been a pretty hidden relationship. I also think it is healthier for you to enjoy your youth and have some fun times with boys around your own generation and decide when and what you want in a partner...
Summary – Yes you are beautiful and given different circumstances we could’ve had something but I believe it better both ways that we probably didn’t. I am basically married and I am happy and there is no romantic future for us. I would be happy to have a platonic, healthy (dare I say normal) “teacher/ex-student” relationship on email, etc.”[47]
[47] Report dated 9 December 2011 to Disciplinary Committee page 104.
The teacher has denied these allegations on the basis of his email dated 20 December 2010 saying it was really tough for him not to go through with sex with the former student and his email dated 24 March 2011 where he stated that he held a sexual fantasy of having a taboo relationship with a school girl and he probably would have had sex with the former student if not for the fact he was in a committed relationship at the time.
QCT submitted that the teacher admitted to discussing sex in general with the former student; stating that there was a chemistry between them and enquiring whether she was sexually aroused by him.[48] Given the teacher’s admissions and noting the former student’s direct evidence supported by the general email evidence, it is submitted that these particular allegations are proven in that it is more likely than not, that the teacher had personalised sexual discussions with the former student and told her that “he was sexually aroused by her” and “that his cock was rock hard or throbbing thinking of her.”
[48] The teacher’s Notice of agreed/disputed allegations paragraphs 2f, 2b and 2e.
Allegations 1(e) and 1(f): sending text messages of a personal and intimate nature to the former student particularly texting her with words to the effect of:
(e) Enquiring whether she was sexually aroused by him.
(f) Discussing sex in general.
The teacher has admitted these allegations.[49]
[49] The teacher’s Notice of agreed/dispute allegations paragraphs 2e and 2f.
The former student provided evidence that the teacher asked her if she was sexually aroused by him and at the time she deflected responding with an answer.[50] She provided evidence that she and the teacher discussed sex in general but that she was too embarrassed and uncomfortable to provide the actual content of those discussions to the QCT investigator.[51]
[50] Report dated 9 December 2011 to Disciplinary Committee paragraph 24 on page 117.
[51] Report dated 9 December 2011 to Disciplinary Committee paragraph 32 at page 118.
In light of the teacher’s admissions and the former student’s direct evidence, it is submitted these allegations have been proven.
Allegation 1(g): sending text messages of a personal and intimate nature to the former student. In particular texting the former student with words to the effect of:
(g) “Trying to arrange a meeting to have sex with her.”
The teacher has denied this allegation.[52]
[52] The teacher’s Notice of agreed/dispute allegations paragraph 2g.
The former student provided evidence that at one point during their texting the teacher asked her to promise to meet him. It was clear to her from the nature of their conversations leading up to that point, that the teacher wanted to meet for the purpose of having sex.[53]
[53] Report dated 9 December 2011 to Disciplinary Committee paragraph 30 at page 118.
In terms of corroborating evidence, the emails passing between the teacher and the former student at times refer to the discussion they had about meeting for sex. It would appear from the email evidence that she was initially cautious about meeting the teacher for sex, after which the teacher decided not to pursue the idea of having sex with her. These emails include an email dated 11 December 2010 from the former student to the teacher:
“I don’t know if you would still like to meet up and if so I don’t know the exact go there but I thought I would just let you know when I am not working or when my grandparents were away so you know. And then the ball is in your court as to what you would like to do with that.”[54]
[54] Report dated 9 December 2011 to Disciplinary Committee page 80.
An email dated 11 December 2010 to the teacher, the former student stated:
“Okay. Decided that I would just put it all out on the table. Then you can make up your mind from there. I respect that you are in a relationship and I understand that takes precedence over whatever it is that is going on now. So I want you to know if you have second thoughts I’m not going to lie and say that I won’t be hurt but I want you to stop and I can tell you now that I will understand...
If we meet up. I know this is going to be a one night thing and that we are probably going to sleep together. I want you to know that I am not easy. Its just that I have known you for a fair while and I trust you. That’s why I think you should know that I am a virgin.”[55]
[55] Report dated 9 December 2011 to Disciplinary Committee page 81.
An email dated 14 December 2010 to the teacher from the former student stated:
“I am not angry at the fact that you wanted to end things. I don’t believe that there would have been anything positive that could have come from it. But I knew that I couldn’t say no if the offer was there because of the feelings I had for you so I had to do everything in my power so you would make the decision for me. Hence the massive email on consequences etc. I knew that you wouldn’t follow through the minute that this started. That you with what I know to be some very what I once believed solid set of values punched deep into your skull you would eventually realise what you were doing. But really [Teacher]. Shouldn’t you have done this before you told me? Shouldn’t you have thought this through before you instigated this entire thing? I am not denying that I didn’t reciprocate the feelings. Not for one second. But I was happy to ignore them if it meant that I could still continue to call you my friend.”[56]
[56] Report dated 9 December 2011 to Disciplinary Committee page 83.
In an email dated 20 December 2010 to the former student, the teacher stated:
“It was really tough for me not to go through with it and not for the implications but because I really do feel a genuine connection with you and I have enjoyed that over the last 2 years (as you mentioned in your email). I was not trying to say you would have a 1 night stand I was actually trying to show you the respect you deserve by saying lets not do something that has no long term future when we both know that going in. Please forgive me for not making that clear.
Please understand that I was not trying to lecture or speak down to you – I guess the emotion scared me a little (I am a male after all) but I simply felt that more bad than good would come from us carrying through with plans.”[57]
[57] Report dated 9 December 2011 to Disciplinary Committee page 85.
In an email dated 17 March 2011 from the former student to the teacher she says:
“I guess I wanted to know when this all started did you always intend for it to be a one time thing a detox and cleanse comparison lets just say or did you actually think that part of you intended for there to be something more?
When this started I guess I was so afraid of ‘breaking the rules’ but on the same token the rules seemed so clouded by the fact that I actually felt something for you for the first time in my whole life.
But the thing that bugs me the most about the whole thing is that we never got to know if the connection we have is platonic or romantic. I still want to know.”[58]
[58] Report dated 9 December 2011 to Disciplinary Committee page 103.
An email dated 24 March 2011 from the teacher to the former student states:
“OK this is the answer to your question. Yes I felt a connection to you. If I were single I probably would have tried to encourage you a bit more and most likely would have acted on it. That doesn’t mean we had a future because let’s be honest, it would’ve had to have been a pretty hidden relationship. I also think it is healthier for you to enjoy your youth and have some fun times with boys around your own generation and decide when and what you want in a partner.
Summary – Yes you are beautiful and given different circumstances we could’ve had something but I believe it better both ways that we probably didn’t. I am basically married and I am happy and there is no romantic future for us. I would be happy to have a platonic, healthy (dare I say normal) “teacher/ex-student” relationship on email, etc.”[59]
[59] Report dated 9 December 2011 to Disciplinary Committee page 104.
Given the former student’s evidence that the teacher asked to meet her to have sex; the emails disclosing the former student and the teacher discussing plans to meet to have sex; the teacher’s admissions as to discussing general sexual matters with her, including asking her if she was sexually aroused by him, it is more likely than not that during their sexual texting, the teacher indicated to her a desire to meet to have sex.
Allegation 1(h): sending text messages of a personal and intimate nature to the former student particularly texting her with words to the effect that:
“(h) That he had to conceal these texts from his partner.”
The teacher has denied this allegation.[60]
[60] The teacher’s Notice of agreed/dispute allegations paragraph 2h.
The former student provided evidence that the teacher had to hide the nature of his contact with her from his girlfriend. She stated that the teacher informed her, that it was difficult for him to hide the texts from his partner because of the number and frequency of over 200 texts.[61]
[61] Report dated 9 December 2011 to Disciplinary Committee paragraphs 32 on page 118.
The former student also provided evidence that the teacher made mention a couple of times that he had to be careful because others could view their communication as being inappropriate.[62] Despite the teacher’s denial of this allegation; the email evidence shows the teacher’s desire to hide his communication with the former student from his partner and his own understanding that his communications with the former student were inappropriate. In an email dated 29 December 2010 to the former student he stated:
“I fully understand what you are saying and I too would like to keep a friendship with you. There are a number of things that I’ll put out there but the basic answer is – email is the best and most appropriate method of communication for NOW but phone is definitely a possibility of the future.
[Girlfriend] and I will be sharing a mobile next year so that might be awkward/inappropriate.
Unfortunately in the modern times in which we live it is probably seen as inappropriate for a male teacher and female ex-student (especially still under 18) to have phone contact etc. (I think you are on to something that is more likely to increase contact this time next year, etc.)
[Girlfriend] does have some sort of issue (quite rightly) with anything inappropriate going on but I will get her to understand that connection is not sexual but just friendly – this may take some time so please don’t rush this.”[63]
[62] Report dated 9 December 2011 to Disciplinary Committee paragraph 34 at page 118.
[63] Report dated 9 December 2011 to Disciplinary Committee page 88.
An email dated 24 January 2011 from the teacher to the former student stated:
“(PS I’m not sure what connection you wish to have with me but if you would like to maintain some contact by email and you would like it to be open – in front of [Girlfriend], etc – then the best thing you could do is send an innocent email, letting me know what you have been up to over summer and generally asking me how it is going. Obviously it needs to sound like we have had no contact. I know that sounds weird but I think it would work. If you don’t want that then feel free to let me know or just don’t reply at all)
(PPS I hope you do send that email).”[64]
[64] Report dated 9 December 2011 to Disciplinary Committee page 95.
An email dated 24 March 2011 to the former student from the teacher stated:
“As for the future. This year we can keep email contact but if we are to do that I probably need you to send an email asking how its going and telling me what you’re up to in a way that suggests we haven’t spoken since before Christmas. This I can show [Girlfriend] and say see [the former student] is just an ex-student who liked me as her teacher and I was a bit of a role model for (or some shit like that).”[65]
[65]Report dated 9 December 2011 to Disciplinary Committee page 104.
At the time of the sexual texting in late 2010 the teacher was in a serious relationship with [Girlfriend] who was also a teacher at the private high school in 2010. In late 2010 or early 2011 the teacher proposed to [Girlfriend].[66] It is more likely than not, that the teacher would have sought to conceal his sexual texting with the former student from his partner [Girlfriend].
[66]Report dated 9 December 2011 to Disciplinary Committee paragraph 39 at page 119.
The teacher’s emails also paint a picture that he knew his sexual texting with the former student was inappropriate, particularly his final email dated 24 March 2011 where he stated:
“OK this is the answer to your question. Yes I felt a connection to you. If I were single I probably would have tried to encourage you a bit more and most likely would have acted on it. That doesn’t mean we had a future because let’s be honest, it would’ve had to have been a pretty hidden relationship. . .
I am basically married and I am happy and there is no romantic future for us. I would be happy to have a platonic, healthy (dare I say normal) ‘teacher/ex-student’ relationship.”[67]
[67]Report dated 9 December 2011 to Disciplinary Committee page 104.
Allegation 2: sending a photograph of an erect penis to the former student via a text message with words to the effect of: “I re-read our text messages and this is what happened.”
The teacher has neither agreed with nor denied this allegation. He stated that the QCT has produced no text containing these words and instead relies on an assertion by the former student.[68]
[68]The teacher’s Notice of agreed/dispute allegations paragraph 3.
The former student provided evidence of a particular sexual texting exchange with the teacher one night when they were both intoxicated. The next day/evening the teacher sent her a photograph of an erect penis with words to the effect that he had been reading the previous day’s text exchange and this is what happened: he had become sexually aroused.[69] The former student reported that after she received this photo via SMS “her moral compass kicked in” and she challenged him.[70]
[69]Report dated 9 December 2011 to Disciplinary Committee page 41 and paragraph 25 on page 117.
[70]Report dated 9 December 2011 to Disciplinary Committee page 41.
The former student provided evidence[71] that she responded to the penis photograph in an email dated 11 December 2010 she sent to the teacher where she stated:
“No it wasn’t the photo I was talking about last night when I said that we need to talk. It was more in a generalised sense. You don’t need to worry though I have deleted it. Um. When I said that we needed to talk I just had a few things that I wanted to ask you and a few things that you probably need to know about me. Please don’t be offended or think that I think badly of you. Its just me and you know that I am going to be nothing but direct.
Question 1: Am I the first student you have had this sort of relationship with?”[72]
[71] Report dated 9 December 2011 to Disciplinary Committee paragraph 28 on page 118.
[72] Report dated 9 December 2011 to Disciplinary Committee page 78.
Hearsay evidence from another school friend [Friend three] of the former student, is that the former student told her that the teacher has sent a nude photo of his crotch to the former student. Friend three stated that the former student told her that the teacher was “hung like a race horse.”[73]
[73] Report dated 9 December 2011 to Disciplinary Committee page 40.
QCT submitted that: the former student’s direct evidence of receiving a photograph of an erect penis from the teacher who claimed it to be his own penis sexually aroused after re-reading the previous evening’s sexual texting; corroborating evidence in an email dated 11 December 2010 from the former student to the teacher where she advised him not to worry about the photo as she has deleted it; corroborating hearsay evidence from Friend three that the former student informed her that the teacher had sent her a photograph of his erect penis and told her he was “hung like a horse”, is all evidence of the likelihood of the photo’s existence.
While the teacher has neither confirmed nor denied this allegation the QCT questions if he had not sent the penis photograph, why he did not deny this allegation. The QCT submitted that it is more likely than not that the teacher sent, in December 2010, a photograph of an erect penis to the former student claiming it to be his own. At this time the former student was 17 years of age and less than a month prior she had finished the high school where she was taught by the teacher.
Allegation 3: sending emails of a personal and intimate nature to the former student particularly emails sent by the teacher including the following passages: when asked by the former student in an email dated 11 December 2010 as to whether she was the first student the teacher had had this sort of relationship with, the teacher in an email dated 11 December 2010 stated:
“YES, I have never done anything like this before.”
In an email dated 20 December 2010 he states:
“It was really tough for me not to go through with it and not for the implications but because I really do feel a genuine connection with you and I have enjoyed that over the last 2 years (as you mentioned in your email). I was not trying to say you would have a 1 night stand I was actually trying to show you the respect you deserve by saying lets not do something that has no long term future when we both know that going in...
Again I am sorry I let things get out of hand, I take full responsibility for getting carried away on the emotion.
Please understand that I was not trying to lecture or speak down to you – I guess the emotion scared me a little (I am male after all) but I simply felt that more bad than good would come from us carrying through with plans.”[74]
[74] Report dated 9 December 2011 to Disciplinary Committee page 85.
In an email dated 24 January 2011 he stated:
“(PS I’m not sure what connection you wish to have with me but if you would like to maintain some contact by email and you would like to be open – in front of [Girlfriend], etc.- then the best thing you could do is send me an innocent email, letting me know what you have been up to over summer and generally asking me how it is going. Obviously it needs to sound like we have had no contact. I know that sounds weird but I think it would work. If you don’t want that then feel free to let me know or just don’t reply at all)”.
In an email dated 24 March 2011 he states:
“Sorry about the tardy reply to your clear email but I have been busy and I really wanted to consider it a few times and respond clearly and honestly.
I cannot honestly say what happened that night of the texting or what my intentions were. I think I wanted to see if what I thought was going on was true – it is always nice to know that someone thinks those things about you. I will also say that I have seen those same qualities in you. I also need to expressly say that the following must be deleted upon reading as it could by very damaging to me. I will be honest that over the past 4 years of my teacher (since back in Aus really) I have often toyed with the flirtation of how thrilling it would be to have a taboo relationship with a girl in school- call it a fantasy if you will. I have never acted on it and never really thought I had a chance with anyone I have taught/known. Then you came along. Unfortunately I am already in an amazing relationship with the woman I am going to marry- doesn’t timing suck!
Wow – I am scared to even type that let alone send it.
OK this is the answer to your question. Yes I felt a connection to you. If I were single I probably would have tried to encourage you a bit more and most likely would have acted upon it. That doesn’t mean we had a future because lets be honest, it would’ve had to have been a pretty hidden relationship. I also think it is healthier for you to enjoy your youth and have some fun times with boys around your own generation and decide when and what you want in a partner.
Summary – Yes you are beautiful and given different circumstances we could’ve had something but I believe it better both ways that we probably didn’t. I am basically married and I am happy and there is no romantic future for us. I would be happy to have a platonic, healthy (dare I say normal) ‘teacher/ex-student’ relationship on email, etc.”[75]
[75] Report dated 9 December 2011 to Disciplinary Committee page 104.
The teacher has admitted to sending the emails outlined but made the point that these quotes are extracts only.[76] It is submitted that the emails the teacher exchanged with the former student were of a personal and intimate nature.
[76] The teacher’s Notice of agreed/dispute allegations paragraph 4.
Discussion
The tribunal notes that the teacher has acknowledged that the conduct occurred but disagrees with the sanction submitted by the QCT as appropriate.[77] It is not clear if this acknowledgement provided by his solicitor resiles from statements in the teacher’s Notice dated 8 May 2012 of agreed/disputed in response to the QCT allegations. The solicitor’s submission which is later in time makes no reference to the earlier Notice signed by the teacher.
[77] Submission dated 27 June 2012 from the teacher’s solicitor
The tribunal accepts the teacher’s submission that he did not meet the former student; that no act of physical intimacy occurred and notes that the teacher did say he was sorry in an email dated 20 December 2010 to the former student.
The tribunal considers that the statements made by the former student are credible. The emails available as well as interviews with the former student are consistent with the existence of a relationship and there is corroboration from her friends who were aware of its existence.[78] The option was open to the former student to volunteer information that further described the sexual nature of the texting or emails but she declined, being more concerned with her own embarrassment than further implicating the teacher. She felt uncomfortable and embarrassed about repeating the sexual content of the messages.[79]
[78]Report dated 9 December 2011 to Disciplinary Committee pages 39-40 and pages 121-122.
[79] Report dated 9 December 2011 to Disciplinary Committee paragraph 31 page 118.
The tribunal notes that there was no illegal activity involved in this matter. However, it constituted an improper teacher student relationship which originated within school hours and was incubated in the school context by a class teacher. The former student’s last day of Year 12 was 19 November 2010 and two days later was the first email from the teacher dated 22 November 2010.[80] There had been, however, escalating familiarity. In an email dated 11 November 2010 to the former student, the teacher signs with a “smiley face”.[81] In an email dated 12 November 2010 the teacher addressed the former student as “[abbreviated name of student]” and signed with the “smiley face”.[82] Neither is a professional way with which to communicate with a student. The email dated 22 November 2011 from the teacher to the former student is not only overly familiar in tone but highly unprofessional, commencing: “Hey you . . .” and then continuing to refer to the “Panel chair bitch”, a teacher from another school.[83] In an email dated 24 November 2010 from the teacher to the former student, his address to her is: “Hey [abbreviated name of student] (he he he)” and refers to the “sexy gold rodeo ...”[84] By 11 December 2010 his email address that they both use appears to be his personal one at Yahoo.[85]
[80] Report dated 9 December 2011 to Disciplinary Committee page 9.
[81] Report dated 9 December 2011 to Disciplinary Committee page 69.
[82] Report dated 9 December 2011 to Disciplinary Committee page 70.
[83] Report dated 9 December 2011 to Disciplinary Committee page 72.
[84]Report dated 9 December 2011 to Disciplinary Committee page 75.
[85]Report dated 9 December 2011 to Disciplinary Committee pages 78-79.
The former student reported that she had been touched physically by the teacher on two occasions during her Year 12 class.[86]
[86]Report dated 9 December 2011 to Disciplinary Committee Page 40, paragraph 11 page 115, paragraph 13 page 116.
The texting and email conversations took place over a short period of time and even allowing for the omissions, there is evident a rapid escalation in frequency[87] and intensity from social[88] to personal.[89] By early December 2010 the former student reported receiving a text message from the teacher around midnight with words “to the effect of ‘I miss your company and our conversation. Did you ever want more from me?’”.
[87]Report dated 9 December 2011 to Disciplinary Committee paragraph 18 pages 116-117.
[88]Report dated 9 December 2011 to Disciplinary Committee paragraph 18 page 116.
[89]Report dated 9 December 2011 to Disciplinary Committee paragraph 19 page 117.
The tribunal considers that it is likely that the teacher exhibited what might be characterised as grooming behaviour in his interactions with the former student. He had established a likeability, a trusting relationship with her with some suggestion of favouritism, accessibility and familiarity. These are precursors to his conduct which included his confessed “fantasy” with which he had “toyed” about having a taboo relationship with a girl in school and his admission of the inappropriateness in that it would have had to remain a “hidden relationship”.[90] This involved clandestine behaviour for the teacher’s own titillation despite his concurrent relationship with a teacher colleague, the person he subsequently married. The tribunal considers that it is open to conclude that there is a predatory intent disclosed in such statements.
[90]Report dated 9 December 2011 to Disciplinary Committee “Then you came along.” page 104.
The tribunal accepts the evidence from the student’s mother that the former student was vulnerable and lonely.[91]
[91]Report dated 9 December 2011 to Disciplinary Committee page 43.
It is clear from the statements contained in the emails that both parties understood that a meeting for the purpose of sexual intimacy was a desired possibility. The tribunal also notes that it is the former student who demonstrated, despite her anger and disappointment, a surprising level of maturity and insight in her email dated 14 December 2010:
“Well I want you to know that not only do I feel disgusted in myself for allowing myself to get into this situation. I feel like I was just a fantasy for you and once you realised there had to actually be some substance to the whole affair you bailed because it was all too much... But despite all of this. I understand that we all make mistakes and I hope you have learnt something from this. Because I sure as hell know I have ...”[92]
[92]Report dated 9 December 2011 to Disciplinary Committee page 83.
This sort of interaction between teacher and student is not only highly improper because of the power imbalance as well as the age and sexual experience disparities but it has actual potential for serious harm. Young people are inherently volatile and, given excited expectation and disappointment, unforeseen and dangerous consequences may ensue from this type of relationship.[93]
[93]Report dated 9 December 2011 to Disciplinary Committee paragraphs 38 and 39 page 119.
The teacher was fully cognisant of the inappropriateness of his communications with the former student. He demonstrated a duplicity with his partner in seeking to hide these communications from her.
The tribunal is satisfied that the conduct has occurred as alleged by QCT. In determining whether a person is suitable to teach, QCT may have regard to any information relevant to whether the person is suitable to work in a child-related field and to any other matter it considers relevant.[94]
[94]Sections 12(1)(b) and (2) of the Act.
Section 12(3) of the Act provides that a person is ‘not suitable to teach’ if that person:
(a)behaves in a way that does not satisfy a standard of behaviour generally expected of a teacher; or
(b)otherwise behaves in a disgraceful or improper way that shows the person is unfit to be granted registration or permission to teach.
The teacher through his solicitor agreed that his conduct has not satisfied the standard of behaviour expected of a teacher but contends that he has not behaved in a disgraceful or improper way that shows him unfit to be registered as a teacher.[95] The “standard of behaviour generally expected of a teacher” is not defined in the Act however QCT submitted, and the tribunal accepts, that the relevant standard is that of community expectation as illustrated in policies such as the QCT Code of Ethics, QCT Professional Standards and relevant employing authority Codes of Conduct.
[95]Submission dated 27 June 2012 from the teacher’s solicitor paragraph 5.
The tribunal however, for the reasons set out above, finds that the QCT contentions are substantiated. The teacher in his conduct with the former student behaved with significant impropriety and that pursuant to s 12(1)(b) of the Act the teacher is “not suitable to work in child related field” because his conduct demonstrated risk factors.[96]
[96]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
Pursuant to section 158 the tribunal is satisfied that the ground for disciplinary action in s 92(1)(h) is established: the teacher is not suitable to teach. It is appropriate that the teacher’s registration as a teacher or permission to teach be cancelled for a period.
[100]In considering the period of prohibition before the teacher may reapply for registration as a teacher, the tribunal examined the comparative cases submitted by the QCT.[97] The tribunal considers however that a longer period of prohibition is appropriate. The teacher demonstrated no significant remorse nor has he demonstrated any particular insight into his behaviour. His admission of “fantasy” and “toying” for some period of time with the idea of a “taboo relationship” with one of his students is of considerable concern because this fantasy was close to realisation in this case. The texts and emails demonstrate a ripeness for completion. There is also foreshadowed in the emails the possibility of continuing some relationship albeit with a veneer of respectability so as not to arouse the suspicion of his partner. The tribunal seeks to emphasise the impropriety of this behaviour and considers that a 30 month period is appropriate.
[97] QCT submissions paragraphs 85-97.
Orders
[101]Pursuant to s 160(2)(d) of the Act the tribunal orders that the teacher’s registration or permission to teach is cancelled as at the date of this decision.
[102]Pursuant to s 160(2)(j) the teacher is prohibited from reapplying for registration as a teacher for not more than 30 months from the date of this decision.
[103]Pursuant to s 160(2)(k), the QCT notify the relevant education authority in the Northern Territory of this decision and orders.
[104]Pursuant to s 160(2)(i), in the event that the teacher seeks registration as a teacher in Queensland after the expiry of the prohibition period, the following notation about the teacher be entered in the register:
A. he must consult a registered psychologist for counselling or therapy and he must provide the psychologist with the following documents:
a)Report dated 9 December 2011 to the Disciplinary Committee; and
b)the tribunal reasons for decision and this order; and
B. the teacher must provide the QCT with a detailed psychologist’s report which demonstrates that he has addressed the following issues:
c)the development and maintenance of professional standards when working with young people;
d)awareness of the power imbalance inherent to the teacher/student relationship including the obligations that flow from this;
e)awareness of and commitment to what is appropriate physical contact and communication in a teacher and student relationship;
f)an in-depth examination of the extent and nature of the student, parental and community trust invested in a teacher;
g)awareness of behaviour that may compromise the professional standing of a teacher and the profession of teaching; and
h)understanding and full adherence to the QCT Code of Ethics and similar policies.
Other matter
[105]The tribunal notes the Recollection dated 8 June 2011 by the Deputy Principal of the school where the former student had been a student.[98] He reported that approximately two months before this date he was surprised to be contacted by the former student who was upset and reported the sexualised texting from the teacher. The Deputy Principal reported that he was “disturbed” but “For me my personal relationship with [the teacher] also raised questions about the truth of this conversation.” He advised her to retain the messages. He did not “immediately tell anyone” of her phone call since the texts had occurred over the Christmas/New Year period; the former student had left school and the teacher had gone to the Northern Territory to teach.[99]
[98]Report dated 9 December 2011 to Disciplinary Committee page 45.
[99]Report dated 9 December 2011 to Disciplinary Committee page 45.
[106]The tribunal requests that the Deputy Principal be alerted to the breach in his responsibility in his failure to act and not immediately responding to the former student’s phone call.
Non-publication of teacher’s name
[107]The tribunal as constituted for disciplinary proceedings under the Act[100] determined[101] to re-examine the de-identification order made[102] prohibiting publication of the teacher’s name pursuant to section 66(2) of the QCAT Act. The tribunal called for further submissions from both the QCT and the teacher.
[100]Section 124 of the Act and section 66(4)(a) of the QCAT Act.
[101]Section 66(3) of the QCAT Act.
[102]24 July 2012.
[108]In a submission filed[103] on behalf of the teacher by his solicitor, there was acknowledgement of the principles integral to open justice as affirmed in this tribunal.[104] The submission acknowledged that the tribunal:
[103]1 November 2012.
[104]Cutbush v Team Maree Property Service (No 3) 2010 QCATA 89 and Queensland College of Teachers v Klemm (2011) QCAT 207.
“On the basis of the material now before it is entitled to make its own decision as to whether that order ought to continue or a new order should be made. The tribunal’s power to do so is not challenged by the respondent teacher.”[105]
[105]Paragraph 8 of the submission filed 1 November 2012.
[109]The respondent teacher relied solely on section 66(2)(b) of the QCAT Act which provides that the tribunal may make a non-publication order “to avoid endangering the physical or mental health or safety of a person”. In this matter it was the mental and physical well-being of the teacher’s wife, that was sought to be protected by non-publication of the teacher’s name. Decisions of this tribunal which sought to avoid endangering the mental health of a teacher’s wife were provided as appropriate precedents in this present matter.[106] The proposition submitted on behalf of the respondent teacher was that the effect of the publication was what engaged the exercise of the tribunal’s discretionary power in relation to the relevant subsection.
[106]Queensland College of Teachers v AB (2010) QCAT 701. Teacher v Queensland College of Teachers (2012) QCATA 115 was also cited.
[110]Submitted were new medical reports from the respondent teacher’s wife’s general practitioner[107]; from a resident medical officer in obstetrics and gynaecology in a NT hospital[108] and a report from a provisionally registered psychologist.[109] Both medical reports attest to significant gynaecological problems in achieving a pregnancy.
[107] Supplementary report dated 27 October 2012.
[108] Report dated 27 October 2012 addressed to treating general practitioner.
[109] Report dated 30 October 2012 which was co-signed by a registered psychologist.
“Ongoing court proceedings with regards to her husband have added to her level of anxiety and distress” and “mood and general well-being continue to be less than ideal overall”.[110]
[110] Supplementary report dated 27 October 2012.
The decision of the tribunal in this matter was provided to both parties but the issue of publication remains outstanding.
[111]The QCT submitted that there is a high standard for exercising the non-publication discretion so that the order must be necessary, not just desirable to avoid the harm.[111] In Queensland College of Teachers v Stark[112] the tribunal found that the evidence as to the teacher’s wife’s condition was not sufficient to justify a non-publication order. It is expected that the non-publication order “will not be used frequently”[113].
[111]QCT submission filed 1 November 2012 paragraph 17 citing the QCAT Bill 2009 Explanatory Note page 14 and Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89.
[112] [2010] QCAT 592.
[113] QCAT Bill 2009 Explanatory Notes page 12.
[112]The QCT submitted that the concerns over the teacher’s wife’s mental health do not override the public interest in publishing the teacher’s name. It noted that the treating general practitioner’s supplementary report indicates that the wife’s anxiety and distress are founded upon her concern for a successful pregnancy and the possibility of a further miscarriage.[114] The disciplinary proceedings and the publication of the teacher’s name are additional stressors. The QCT referred to the psychologist’s report which indicated that the wife had some past history of depression and noted that she currently displayed symptoms of an anxiety state.[115]
[114] QCT submissions filed 1 November 2012 paragraphs 25-26.
[115] QCT submissions filed 1 November 2012 paragraphs 28-29.
[113]The evidence is in agreement that she is of an anxious disposition. The evidence indicates that her anxiety state is both pre-existing to the disciplinary proceedings and concurrent with them. The indications from the medical evidence are that the proceedings in the tribunal are secondary to the primary concern of achieving a successful pregnancy but additional stressors. The indications are also that her condition is, if anything, worsening.
[114]Both the teacher and his wife went on leave without pay from the SE Queensland school to the Northern Territory school from 2011.[116] The teacher’s wife is described as “a teacher of 15 years standing” who plans to return to her position at the SE Queensland school where both her husband, the subject of the disciplinary proceedings, and the wife were teachers.[117] The tribunal further notes that throughout the medical and psychologist’s reports, the teacher’s wife is referred to by the name of the teacher, the married name which she appears to have adopted.
[116]Psychologist’s report dated 30 October 2012. See however paragraph 7 above where the evidence is that the teacher resigned.
[117]Psychologist’s report paragraph 6. The tribunal notes that there is no evidence to suggest whether the wife had also resigned from the SE Qld school.
[115]There is no reason why the teacher’s wife should not return to the SE Queensland school. If the teacher’s name is published there is a risk of unjustified prejudice that may well ensue and jeopardise the wife’s role as a teacher. Were the teacher’s wife to return to the former school from which she has taken leave and resume her former position, however, there is a real risk that there would be attendant and unjustified questions cast upon her reputation by the publication of the teacher’s name. Furthermore, there is a risk that the school, the subject of the non-publication order dated 13 March 2012 would be identified rendering the non-publication order useless. A possible if more remote consequence is identification of the complainant, also the subject of the order dated 13 March 2012. In view of these comments, the tribunal might have considered an order pursuant to section 66(1)(c) to include the teacher’s wife as a person affected by the proceedings.
[116]There is considerable deterrent effect in publicly naming professional persons whose conduct attracts disciplinary sanction. In this regard, the tribunal notes the comments made in QCT v Stark.[118] A non-publication order is not appropriate if its real purpose is to avoid the consequences of one’s behaviour.[119] In the ordinary course, publication will occur.
[118][2010] QCAT 592.
[119]See Queensland College of Teachers v Stark [2010] QCAT 592.
[117]The tribunal may, at its discretion, only make an order prohibiting publication if it is “to avoid endangering the physical or mental health or safety of a person.”[120]As noted in the comments of Queensland College of Teachers v AB[121] the tribunal may have been inclined to refuse the application for a non-publication order in the absence of new evidence regarding the health of the respondent teacher’s wife.
[120]Section 66(2)(b) QCAT Act.
[121][2010] QCAT 701 at paragraph 55.
[118]The non-publication order of the teacher’s name made pursuant to section 66(1) of the QCAT Act on 24 July 2012 is continued.
[119]The non-publication order made pursuant to section 66(1) of the QCAT Act on 13 March 2012 in relation to the names of the relevant students and the names of the schools is continued.
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