Queensland College of Teachers v Teacher CAP
[2011] QCAT 541
•8 November 2011
| CITATION: | Queensland College of Teachers v Teacher CAP [2011] QCAT 541 |
| PARTIES: | Queensland College of Teachers (Applicant) |
| v | |
| Teacher CAP (Respondent) |
| APPLICATION NUMBER: | OCR131-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 19 October 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Michelle Howard, Presiding Member Christine Jones, Member Robyn Oliver, Member |
| DELIVERED ON: | 8 November 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. That Teacher CAP is prohibited from seeking registration or permission to teach for a period of 5 years from the date of these orders. 2. That the Queensland College of Teachers register be endorsed with a notation that the teacher has given an undertaking to the tribunal not to seek registration or permission to teach in the future. 3. (i) That publication of the teacher’s name is prohibited. (ii) Other than to the parties, these reasons for decision may be published in a de-identified format only in compliance with this order and the order made on 16 June 2010 which prohibited publication of the name, address and school of the complainant child, and the name of her mother. |
| CATCHWORDS: | DISCIPLINARY MATTER – FITNESS TO TEACH – where concessions by former approved teacher of inappropriate conduct with child for whom he was a father figure although denying sexual contact with the child – where allegations of sexual contact made by the child – where evidence of sexual contact consists of child’s disclosures and statements – where evidence untested DISCIPLINARY ACTION – where undertaking by teacher not to seek registration or permission to teach at any future time NON-PUBLICATION ORDER – where identification of teacher would tend to identify the child Queensland Civil and Administrative Tribunal Act 2009, s 66 Briginshaw v Briginshaw (1938) 60 CLR 336 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr J Gormley, Principal Legal Officer, Queensland College of Teachers |
| RESPONDENT: | Mr J Hunter, SC |
REASONS FOR DECISION
The Queensland College of Teachers (QCT) referred a disciplinary proceeding to the tribunal for a determination whether a ground for disciplinary action against Teacher CAP (the teacher) has been established under the Education (Queensland College of Teachers) Act 2005 (the Act).
The teacher was registered as a teacher between 15 September 1980 and 8 April 2011. His registration had been suspended under the Act on 3 June 2010, but lapsed as of 8 April 2011. Therefore, he is former approved teacher under the Act.
Teacher CAP was in a relationship for some eight years with a woman who has children from a previous relationship. They did not reside in the same home, but the teacher regularly visited with and went away with the woman and her children. In 2010, a female child of the woman disclosed that the teacher had consensual sexual contact with her over a period of two years when she was aged between 15 and 17 years. The mother reported the allegations to QCT which investigated and suspended the teacher’s registration. A criminal complaint has not been made, although some of the allegations relate to periods when such contact is prohibited by the criminal law.
Essentially, QCT alleges that Teacher CAP was in a position of trust and authority in respect of the complainant; that the teacher had or attempted to have sexual contact on ten particularised occasions; and that he attempted to dissuade her from disclosing or giving a truthful version of the sexual contact. Teacher CAP was not at any time in a teacher student relationship with the complainant.
The material in the matter is voluminous. The complainant herself was formally interviewed on six occasions. The QCT acknowledges this is unusual, but it says, still proper given the need to clarify the complainant’s evidence in light of the material provided by Teacher CAP, and to record evidence concerning contact between the complainant and the teacher after the allegations had been reported. The evidence of sexual contact consists of the complainant’s disclosures and statements from interview.
QCT says that inferences may be drawn from communications and circumstances referred to in the material. QCT asks the tribunal to accept the complainant’s evidence as credible and to reject Teacher CAP’s evidence which it submits is bizarre, implausible and facile. It suggests that, although there was no examination or cross-examination of witnesses at the hearing, that a determination on credibility can be made and a finding made that a ground for disciplinary action is established. However, it submits that, relying on Dare v Pulham,[1] given the concessions made by the teacher, there is nothing objectionable about the particulars not being established if the primary cause of action is established.
[1] (1982) 148 CLR 658.
QCT submits that cancellation of registration and 5 years prohibition from reapplication or permission to teach is warranted. It contends that the primary aggravating feature of the conduct is the number and duration of the incidents. Further, it says that there are no mitigating features.
Teacher CAP denies any authority over the complainant, but otherwise accepts that he was a father-figure for the child. He denies any sexual contact with the complainant. In this regard, he points to matters including that there has been no medical examination of the complainant; he says that her allegations are inconsistent with his behaviour in his sexual relationship with the complainant’s mother; and alleges that the allegations were triggered by the permanent exclusion of the complainant from the bed in which he and the complainant’s mother slept. He denies attempting to dissuade the complainant from disclosing information.
That said, he acknowledges allowing the complainant to sleep in the bed with himself and the mother, and that the complainant child was sometimes virtually naked and sometimes she, for example, placed her leg across his body. He also acknowledges that he engaged in sexual acts with the mother while the child was in the bed, but ostensibly asleep. However, the mother denies that this occurred. He also acknowledges having had discussions with the child involving intimate details of his activities with the mother.
[10] On that basis, the teacher acknowledges that his conduct fell below the standard of behaviour generally expected of a teacher. On that basis, he accepts that he is not suitable to teach and that his teacher registration should be cancelled. He has given an undertaking that he will not again seek teacher registration at any time.
[11] The teacher seeks a non-publication order in respect of his identity. He submits that publication of his identity will inevitably lead to identification of the complainant and that this would be contrary to the public interest. The QCT opposes the order, pointing to the deterrent effect and therefore strong public interest in naming persons who are the subject of disciplinary proceedings. It submits that the real issue is whether identification of the teacher will inevitably lead to the identification of the child.
Legislative Provisions
[12]Section 92 of the Act provides for grounds for disciplinary action. The grounds include, in section 92(1)(h), that the teacher is not suitable to teach. Sections 11, 12 and 12A set out matters which must be considered when considering whether a person is suitable to teach. Section 12(3) provides that, amongst other things, a person is not suitable to teach, if the person behaves in a way that does not satisfy a standard of behaviour generally expected of a teacher, or otherwise behaves in a disgraceful or improper way that shows the person is unfit to be granted registration or permission to teach.
[13]Under section 158(1) of the Act, as soon as practicable after concluding the hearing, the tribunal must decide whether a ground for disciplinary action against the teacher has been established.
[14]If the Tribunal decides that a ground for disciplinary action has been established against a former approved teacher, under section 161(2) of the Act, it may do one or more of the following:
(a) decide to take no further action in relation to the matter;
(b) make an order requiring the teacher to pay to the college, by way of costs, an amount QCAT considers appropriate having regard to--
(i) any expenses incurred by the college in investigating the matter; and
(ii) the expenses incurred by the college in the proceedings before QCAT;
(c) if QCAT would have made an order cancelling the teacher's registration or permission to teach if the teacher had been an approved teacher--make an order prohibiting the teacher from reapplying for registration or permission to teach for not more than 5 years from the day the order is made;
(d) make an order that a particular notation or endorsement about the teacher be entered in the register.
[15] Section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) provides that the Tribunal may make a non-publication order prohibiting, among other things, the publication of evidence given before the Tribunal[2] and information that may enable a person affected by a proceeding to be identified,[3] only if it considers it necessary for reasons including, where publication would be contrary to the public interest.[4]
[2] Section 66(1)(b).
[3] Section 66(1)(c).
[4] Section 66(2)(d).
Is a ground for disciplinary action established?
[16] The tribunal must reach its own conclusion whether a ground for disciplinary action has been established. The applicable standard of proof is the balance of probabilities, the degree of satisfaction varying according to the gravity of the fact to be proved.[5] In this proceeding, the allegations made are most grave.
[5] Briginshaw v Briginshaw (1938) 60 CLR 336.
[17] The evidence before the tribunal has not been tested. The QCT alleges, among other things, sexual contact between the teacher and the complainant. The teacher denies the sexual contact but makes some concessions. The teacher acknowledges that he was a father-figure to the child but was sleeping in a bed with the complainant while she was aged between 15 and 17, and when she was often nearly naked and with their bodies touching. He also acknowledges, although the complainant’s mother disputes it, having sexual intercourse with the mother while the child was in the bed with them. Further, he acknowledges having explicit discussions with the complainant of intimate details of sexual activities with the mother.
[18] Regarding the allegations that the teacher attempted to dissuade the complainant from disclosing, it is apparent that there was some contact between the two after the allegations were reported and the QCT investigation had begun. Evidence of text messages reveals that the teacher told the complainant that his personal and professional life was in ruins as a result. Given the child’s apparent trust in him, and care for him, it is reasonable to infer that this behaviour was calculated to place the complainant in a conflicted position regarding whatever she reported.
[19] The tribunal considers that the concessions made indicate a highly inappropriate relationship between the teacher and the complainant. The inappropriate conduct is in the realm of a personal relationship with a child within his household, rather than within a student/teacher relationship.
[20] Personal conduct is capable of relevance to a professional discipline if there is a relationship between the conduct and relevant professional standards and responsibilities.[6] The tribunal considers that the manner in which a teacher behaves with and towards a child in the sphere of private and family life is relevant to the professional standards and responsibilities of a teacher. If there is no recognition of appropriate boundaries in a teacher’s private relationships with children, it is reasonable to infer that appropriate boundaries in professional teacher student relationships may also be unrecognised and appropriate standards transgressed in a professional setting.
[6] Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46.
[21] The allegations made by the complainant are grave. Having regard to the relevant standard of proof, there are inherent difficulties in making specific findings when the evidence has not been tested. It is open to the tribunal to accept the teacher’s concessions. If the evidence was tested, or the tribunal was prepared to make findings of credit based on the evidence as presented on the papers, the tribunal may be satisfied of additional matters, which the teacher does not admit.
[22] However, if the tribunal finds the teacher’s concessions are sufficient to found a ground for disciplinary action, and it accepts the concessions, then on the basis of the concessions alone, it is open to the tribunal to accept that a ground for disciplinary action exists against the teacher.
[23] The tribunal does accept the teacher’s concessions. Further, the tribunal is satisfied that the concessions are adequate to found a ground of disciplinary action, namely that the teacher is unsuitable to teach. The conduct of sleeping in a bed with the 15 to 17 year old complainant for whom the teacher was a father-figure and who was, at times, almost naked and sometimes with their bodies touching is a serious transgression of acceptable boundaries. It does not satisfy a standard of behaviour generally expected of a teacher and is disgraceful and improper behaviour which demonstrates that the teacher is unfit to be registered or to be granted permission to teach as a teacher.
[24] Therefore, a ground for disciplinary action exists.
What disciplinary action should be taken?
[25] Teacher CAP’s teacher registration lapsed in April 2011. He has given an undertaking not to seek teacher registration at any time in the future.
[26] Having regard to the protective nature of the disciplinary jurisdiction, the tribunal considers that the maximum period of prohibition under the Act, from reapplication for registration or permission to teach should nevertheless be imposed because the teacher’s conduct represents a very serious contravention of acceptable behaviour. That is a 5 year period. The register should also be endorsed to note the teacher’s undertaking not to seek registration again.
Non-publication application
[27] The tribunal made a non-publication order to protect the child complainant on 16 June 2010, prohibiting the publication of the complainant’s name, address and school and the name of the child’s mother.
[28] The teacher submits that to protect the child, his identity must also be subject to a non-publication order, because identification of him necessarily tends to identify the complainant child. He suggests that the tribunal should take the approach taken by the criminal courts where decisions involving sexual offending by a family member are published in de-identified format only.
[29] As noted earlier, QCT opposes the order having regard to the deterrent effect of naming persons in disciplinary proceedings, and because it argues, identification of the teacher would not necessarily identify the student as there is not sufficient nexus between the parties.
[30] In the ordinary course of events, publication will occur. A non-publication order is not appropriate if the purpose of the teacher’s application is to avoid the consequences of his actions.[7] However, in appropriate circumstances an order will be made. In Queensland College of Teachers v A Teacher,[8] an order was made which prohibited identification of the teacher, among others, to prevent the identification of the complainant and misidentification of others as the complainant.
[7] Queensland College of Teachers v Stark [2010] QCAT 592.
[8] [2010] QCAT 225.
[31] It is reasonable to infer, given the length of the relationship between the mother of the complainant and the teacher, that many persons, both in and outside of their respective extended families and close friendship networks, as well as other persons including work colleagues, and the complainant child’s school community and local community knew of the relationship between the mother and the teacher. If the teacher is identified then it is highly likely that the child will be effectively identified to many people who knew the teacher and the mother and their association with one another.
[32] While acknowledging the highly desirable deterrent effect of publication, the tribunal considers that in this case, the identification of the teacher will inevitably lead to the identification of the complainant and that the latter would not be in the public interest.
[33] Accordingly, a non-publication order is made prohibiting the publication of the identity of the teacher. The orders made on 16 June 2010 also remain effective to protect the identity of the complainant and her mother. These reasons may be published, other than to the parties, in de-identified format only.
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