Queensland College of Teachers v Teacher J
[2011] QCAT 519
•3 November 2011
| CITATION: | Queensland College of Teachers v Teacher J [2011] QCAT 519 |
| PARTIES: | Queensland College of Teachers (Applicant) |
| v | |
| Teacher J (Respondent) |
| APPLICATION NUMBER: | OCR028-11 |
| 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: | 3 November 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Teacher J’s teacher registration is cancelled. 2. Teacher J is prohibited from applying for registration or permission to teach for a period of 3 years commencing from 17 February 2011. 3. That the register be endorsed with a notation that any application of the respondent teacher for re-registration be accompanied by a psychologist’s report which includes assessment of Teacher J’s appreciation of the following: a. Differentiating between personal and professional relationships; b. The legal obligations of teachers and tutors; c. Development and maintenance of professional standards when working with young people and actively determining and implementing professional boundaries with individual students; d. Risk assessment and early issue identification of potentially problematic situations and venue as well as initiating realistic solutions for avoiding the risk of harm to students; e. The extent and nature of the student, colleague, parental and community trust inherently invested in a teacher or tutor; f. Personal and social behaviour that would compromise the professional standing of a teacher and the profession of teaching; g. What constitutes inappropriate communication; h. The effect of inappropriate relationships with students; i. The trust and power granted to a teacher; j. The importance of full adherence to the Queensland College of Teachers Code of Ethics. The psychological report to include: a. an indication by the psychologist about whether the psychologist is satisfied that the teacher has adequately understood and addressed the above points. b. Confirmation of the psychologist being provided with copies of: (i) This decision; (ii) The Amended Referral setting out the agreed matters. 4. Publication of any information which may lead to the identification of any child witness, their address or school is prohibited. |
| CATCHWORDS: | DISCIPLINARY MATTER – FITNESS TO TEACH – where inappropriate personal relationship between teacher and student, including sexualised texting, meeting together and kissing – where teacher co-operated with investigation and is undertaking therapeutic counselling NON-PUBLICATION ORDER – where child witnesses – where contrary to the public interest for them to be identified Queensland Civil and Administrative Tribunal Act 2009, s 66 Briginshaw v Briginshaw (1938) 60 CLR 336 |
APPEARANCES and REPRESENTATION (if any):
This proceeding was heard on the papers pursuant to section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009.
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 J (the teacher) has been established under the Education (Queensland College of Teachers) Act 2003 (the Act).
Teacher J was first registered as a teacher in February 1999. His registration was current when he applied for renewal of his registration in October 2010. Due to these proceedings, that application is undetermined. However, by operation of section 26 of the Act, Teacher J’s registration remains current until such time as the application is determined. Therefore, he is an approved teacher under the Act.
The teacher’s registration was suspended on 17 February 2011. Teacher J is aged 39 years.
While Teacher J was a teacher at a Queensland school, he taught a female student who at that time was aged 14 or 15 years. In the 2010 school year when the student was in Year 11, the student sometimes discussed personal issues she was experiencing with the teacher. On about three occasions in that same year, she was engaged as a babysitter by the teacher and his wife.
Towards the end of the 2010 year in which the student turned 15 years of age, the teacher and the student exchanged text messages with sexualised and overly familiar content. The messages were very frequent and up to 1,000 per month for a couple of months. The messages included plans for the two to eventually engage in sexual intercourse. The teacher also described unhappiness in his marriage and possible plans for him to leave the marital home.
Two student witnesses who are friends of the student concerned reported messages they had viewed to a senior member of staff.
On 3 occasions in early 2011, the teacher and student kissed. One instance occurred at a shopping centre; and two in a school room at lunch-time. On the second of the occasions at school, the teacher also rubbed the student’s body including on the thighs and back.
The teacher accepts the facts as outlined. However, he points out that he was asked by the school to counsel the student regarding some issues that had arisen in her family because he had some experience dealing with some similar issues personally. He did raise with the Deputy Principal and the school counsellor, that he thought the student was becoming too attached to him, prior to them both attending a school trip in mid-2010.
The QCT seeks an order cancelling the teacher’s registration and prohibiting him from reapplying for registration or permission to teach for 5 years, together with a therapeutic counselling order relating to any future application for registration. While acknowledging that he allowed the relationship to develop to an unacceptable level and accepting that cancellation of his teacher registration is appropriate, the teacher submits that prohibition from reapplication for one year to 18 months would be more appropriate.
Applicable Law
[10] 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 way that shows the person is unfit to be granted registration or permission to teach.
[11] 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.
[12] If the Tribunal decides that a ground for disciplinary action against an approved teacher has been established, under section 160(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) if the teacher's registration or permission to teach is suspended under section 48 or 49--end the suspension;
(c) issue a warning or reprimand to the teacher;
(d) cancel the teacher's registration or permission to teach;
(e) suspend the teacher's registration or permission to teach for a stated time;
(f) 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;
(g) make an order requiring the teacher to pay to the college, by way of penalty, an amount fixed by QCAT but not more than the equivalent of 20 penalty units;
(h) impose conditions on, or amend or remove conditions on, the teacher's registration or permission to teach;
(i) make an order that a particular notation or endorsement about the teacher be entered in the register;
(j) if QCAT cancels the teachers' registration or permission to teach--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;
(k) make another order QCAT considers appropriate;
(l) accept an undertaking from the teacher.
Is a ground for disciplinary action established?
[13] The tribunal is satisfied that the evidence establishes that Teacher J engaged in an inappropriate personal relationship with a student, who was vulnerable because of the issues within her family situation. The relationship involved an extraordinarily large volume of sexualised texting and content about the teacher’s unhappiness in his own marital relationship.
[14] In early 2011, the relationship between the student and the teacher escalated to kissing. One inappropriate meeting was arranged at a shopping centre, where kissing occurred. Two other instances of kissing occurred on school premises at lunch-time. On the second occasion, the situation escalated further to other inappropriate touching by way of the teacher rubbing parts of the student’s body including her thighs and back.
[15] Text messages describe in some detail sexual fantasies of the teacher, while also discussing a forthcoming baby-sitting date. QCT submits that the inference can be drawn that by discussing sexual fantasies via text-messaging whilst also discussing a forthcoming baby-sitting date, real plans were being made to engage in intercourse. Having regard to the relevant standard of proof,[1] the tribunal does not consider that it can reasonably draw that inference. However, the evidence does establish a future intention to engage in sexual intercourse.
[1] Briginshaw v Briginshaw (1938) 60 CLR 336.
[16] The tribunal is satisfied that through this conduct, the teacher has behaved in a way that does not satisfy the standard of behaviour generally expected of a teacher. The tribunal therefore finds that Teacher J is not suitable to teach. Therefore, a ground for disciplinary action has been established.
What disciplinary action should be taken?
[17] The QCT submits that comparable authorities are Queensland College of Teachers v Grasso[2] and Queensland College of Teachers v Stark.[3] In Grasso the tribunal found an inappropriate personal relationship between a vulnerable student and a teacher by way of telephone, text and social networking; spending time with the student; declarations of love by the teacher; sharing a bed with the student and formulating plans to further the relationship post school; as well as a sexual relationship when the student was 18 years of age. Cancellation and a 3 year prohibition on reapplication for registration from the date of the hearing was imposed by the tribunal. The teacher in that case was young and inexperienced, having first been registered in 2009.
[2] [2011] QCAT 292.
[3] [2010] QCAT 592.
[18] In Stark, a 44 year old teacher was found to have engaged in gift-giving; inappropriate text messaging including declarations of love; hugging and kissing; and sexualised interactions with a 12 year old student via an avatar on an internet site. The tribunal considered that Mr Stark had no insight into the inappropriate nature of his behaviour. Cancellation of registration and a 4 year prohibition from the date of the hearing was imposed.
[19] Although there was not an actual sexual relationship between Teacher J and the student, QCT submits that the behaviours in this matter amount to significant grooming and an intention to engage in intercourse in the future. It also submits that the conduct only came to an end because of intervention when the student witnesses complained.
[20] The tribunal considered aggravating and mitigating factors. The student was vulnerable as a result of her home situation. The age difference between the teacher and the student is significant. The teacher is experienced, having been first registered in 1999.
[21] However, the teacher has been co-operative with school staff, a police investigation which did not result in charges, and the QCT investigation. He also filed a statement jointly with the QCT in the tribunal regarding agreed matters of fact. He submits that this has facilitated an early end to the proceedings. Further, he has undertaken therapeutic counselling of his own volition. He acknowledges that his behaviour has been unacceptable.
[22] Teacher J provided a number of personal references which speak very highly of him personally and professionally. One of those was from the student’s mother, who while not condoning his behaviour, and acknowledging that he was addressing his issues through counselling, speaks highly of him as a teacher, and of her belief that he did not set out to lure the student into a relationship.
[23] Teacher J submits that the escalation of the relationship was likely to have ceased given that school had recommenced for 2011. He submits that unlike Grasso, there was not an actual sexual relationship. He suggests that these factors are relevant to the disciplinary action to be imposed.
[24] The tribunal considers that the behaviour engaged in by Teacher J represents a serious transgression of acceptable standards of behaviour of a teacher. However, despite text discussions amounting to sexual fantasies, and some instances of inappropriate touching including kissing on three occasions, the teacher did not engage in sexual intercourse with the student.
[25] The case of Grasso involved an inappropriate relationship and a sexual relationship, but the teacher was young and inexperienced, which is not the case for Teacher J. Stark involved a more mature-aged teacher, but more aggravating features than in Teacher J’s situation, given the age of the student concerned, and the teacher’s lack of remorse and insight into the behaviour. This may be contrasted with Teacher J’s situation.
[26] In Queensland College of Teachers v Borchardt,[4] the teacher was aged 58. He behaved inappropriately towards several female students over a period of two years despite being cautioned about his behaviour, including developing an inappropriate relationship with a student which he exploited by engaging in a sexual relationship with the student shortly after she finished school. In that case, the tribunal considered there were no mitigating factors and the teacher was prohibited from seeking registration for 4 years from the date of the hearing.
[4] [2010] QCAT 432.
[27] Having regard to all of the circumstances of Teacher J’s matter, the tribunal considers that the behaviour warrants cancellation of Teacher J’s registration and prohibition on reapplication for three years from the date of the suspension of his teacher registration, namely 17 February 2011. We do not consider an order for therapeutic counselling is appropriate, given that Teacher J is already voluntarily undertaking counselling. However, an order is made for a report of a psychologist addressing relevant matters to accompany any application for re-registration.
Non-publication order
[28] The tribunal made a non-publication order pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act), on 1 March 2011. The order was in these terms, ‘Publication of the identity of the child complainant and of the name, address and school of the complainant child is prohibited.’
[29] Section 66 of 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[5] and information that may enable a person affected by a proceeding to be identified,[6] only if it considers it necessary for reasons including, where publication would be contrary to the public interest.[7]
[5] Section 66(1)(b).
[6] Section 66(1)(c).
[7] Section 66(2)(d).
[30] The file contains evidence also from and about the other child witnesses. The tribunal considers that it would be contrary to the public interest for information which might allow them to be identified to be published.
[31] Accordingly, the tribunal makes a non-publication order in respect of them, in similar terms to the order made on 1 March 2011. The non-publication order previously made is unchanged.
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