Queensland College of Teachers v Teacher Max
[2013] QCAT 436
| CITATION: | Queensland College of Teachers v Teacher Max [2013] QCAT 436 |
| PARTIES: | Queensland College of Teachers (Applicant) |
| v | |
| Teacher Max (Respondent) |
| APPLICATION NUMBER: | OCR057-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 24 July 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe OAM, Senior Member Robyn Oliver, Member Paul Kanowski, Member |
| DELIVERED ON: | 9 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The teacher’s teacher registration is cancelled and he is prohibited from applying for registration or permission to teach until 30 June 2014. 2. The Queensland College of Teachers’ register of approved teachers is to be endorsed with a notation that any application by the teacher for re-registration be accompanied by a psychologist’s report which includes assessment of the teacher’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 venues 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. understanding of the effect of inappropriate relationships with students; h. the trust and power granted to a teacher; i. understanding of, and the importance of full adherence to, the Queensland College of Teachers’ Code of Ethics. 3. The psychological report is 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 that the psychologist has been provided with copies of: i. this disciplinary decision and statement of reasons for the decision; and ii. the ‘Statement of Agreed Matters’. |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Max (not his real name) is a high school teacher. He began teaching in 1989, and he is now 50 years of age. This disciplinary proceeding has been brought because of the relationship Mr Max formed with a female student around 20 years ago.
The tribunal has previously made orders to the effect that the identities of the student, the teacher and the school are not to be published. The non-publication order concerning the teacher operates until further order. We do not propose to make an order allowing publication, primarily because non-publication remains necessary to protect the identity of the student. Her identity would be apparent to her peers if the teacher’s name was published. We have also taken into account a psychological report dated 10 July 2013 concerning the teacher’s current rather fragile mental state.
There are two issues to be addressed in this proceeding. The first is whether a ground for disciplinary action is established. The second is what disciplinary action should be taken if a ground is established.
IS A GROUND FOR DISCIPLINARY ACTION ESTABLISHED?
Mr Max met the student in January 1992, when she was 12 years old and starting year 8. She turned 13 in February 1992. Mr Max taught her in 1992 (year 8), 1993 (year 9), and most of 1994 (year 10). The student moved to another school in August 1994. Mr Max and the student remained in contact after the student changed school. They had sexual intercourse on her sixteenth birthday in February 1995. Shortly afterwards the student moved in with Mr Max and they cohabited in a de facto relationship until November 1996. Mr Max is 16 years older than the student.
In late 2009 the student told police that Mr Max had started a sexual relationship with her when she was only 14, in about March 1993. She said the relationship initially involved sexual activity other than intercourse, but then included intercourse from mid 1994, when she was 15. The police investigated, and charged Mr Max in March 2011 with a number of sexual offences. The matter proceeded through the Courts. Mr Max ultimately stood trial in October 2012 on 24 charges relating to sexual contacts, and the maintenance of a sexual relationship, with the student while she was under 16. The jury acquitted Mr Max on all charges after an 11 day trial.
Giving evidence in his trial, Mr Max said that he had formed a friendship with the student and then fallen in love with her while she was under 16. He denied any sexual contact prior to her 16th birthday.
The parties before the tribunal – the Queensland College of Teachers and Mr Max – have agreed upon the relevant facts. Several of the agreed facts relate to the period January 1992 to August 1994, when Mr Max was one of the student’s teachers:
·The student was in a specialist program. Mr Max was one of only two teachers of the students in that program.
·Mr Max gave the student a pet for her 14th birthday.
·During the Easter school holidays in 1993, the student and her family camped at Mr Max’s parents’ property.
·On an occasion (date unknown) Mr Max hugged the student.
·From 1993 Mr Max provided private tutoring to the student at her home approximately three to four times per month. He drove her to and from school on occasions. They had regular phone discussions on personal topics.
The following agreed facts relate to a slightly longer period:
·On dates unknown between June 1993 and December 1994, Mr Max and the student were observed to be very fond of each other when visiting the home of a friend of Mr Max.
·The relationship between Mr Max and the student ‘developed from a teacher student relationship in 1992 to friendship in 1993, to more than a friendship in late 1993 and to love in 1994’.
The following agreed facts relate to the period from August 1994, when the student moved to another school and was no longer taught by Mr Max:
·Until February 1995, Mr Max continued the personal relationship with the student by regular telephone contact and meetings at her home and at an oval.
·On the student’s 16th birthday in February 1995, Mr Max engaged in sexual intercourse with the student, and they were intimate from that time onwards.
·From shortly after the student’s 16th birthday until November 1996, Mr Max and the student cohabited in a de facto relationship.
We accept as accurate the agreed facts outlined in the paragraphs above. It follows that the conduct does not involve sexual contact before the student’s 16th birthday. It does, though, involve a very high level of extra-curricular contact, and a teacher-student relationship that Mr Max allowed to develop into a close friendship and into what he saw as love. This was followed by a sexual relationship as soon as the student turned 16. This was only six months after Mr Max had been the student’s teacher.
Teachers are expected to maintain a professional relationship with, and keep a professional distance from, students. This is necessary to maintain good teacher-student relationships. A teacher must not seek a romantic involvement with a student, or encourage any such interest from a student. There is a significant power imbalance between a teacher and a student, and the teacher must be careful not to exploit a position of power and trust.
Clearly, Mr Max well and truly overstepped the appropriate boundaries while he was the student’s teacher. He took advantage of the student’s interest in him to satisfy his own wishes for friendship and intimacy. This occurred in the context of a specialist program which involved a relatively small group of students, only two teachers, and a number of extra-curricular activities such as camps. This situation placed the teachers in closer than usual contact with students, which heightened the need for teachers to maintain proper boundaries. Mr Max failed to do that. He took the opposite course, and exploited his position of trust. He began visiting the student’s home while she was in year 8, after intercepting a note she had written in ‘very negative self-harm’ terms. He continued to be a frequent visitor even after, according to his evidence at the trial, he developed romantic feelings for the student when she was about half way through year 9, and knowing that the feelings were reciprocated. This pattern of ingratiation by a teacher into a vulnerable student’s family for his own gratification is a clear abuse of the teacher’s position.
The later conduct is also relevant. Scrutiny cannot stop when a student becomes a former student. The power imbalance does not suddenly disappear. As has been observed by QCAT, ‘the more recent, the longer, the closer, the more vulnerable the student or more significant the teacher/student relationship was, the more likely that substantial time must pass or significant intervening events must occur to extinguish that power imbalance’.[1] Mr Max kept up contact with the student after she left his school. She was young and vulnerable. He was significantly older. He exploited the power imbalance to commence a sexual relationship with her only months later, at the earliest legal opportunity.
[1] Queensland College of Teachers v A Teacher [2010] QCAT 225 at [26].
The conduct of Mr Max both while he was the student’s teacher, and in the following couple of years until they separated in late 1996, undoubtedly demonstrates unsuitability to teach at that time. But we must assess whether Mr Max is presently not suitable to teach. He continued teaching until March 2011, when he was charged with the offences and his teacher registration was suspended. So far as is known, he has not had any further inappropriate relationships with students since the one with the student in question. This might suggest a reformed character. On the other hand, Mr Max has not indicated any remorse, or any insight into the damaging nature of his conduct. Of course we appreciate that it may be difficult for Mr Max to see things from that student’s perspective, for a number of reasons including that he presumably regards her as a person who made false allegations of criminal conduct against him. But it is essential that Mr Max demonstrates insight into the effects upon students of inappropriate relationships before he can be considered fit to teach.
The parties agree, and we find, that Mr Max is not suitable to teach. Unsuitability to teach is a ground for disciplinary action.[2]
[2] Education (Queensland College of Teachers) Act 2005 (Qld) s 92(1)(h).
WHAT DISCIPLINARY ACTION SHOULD BE TAKEN?
Section 160 of the Education (Queensland College of Teachers) Act 2005 (Qld) provides a range of sanctions. The parties jointly submit that Mr Max’s teacher registration should be cancelled; that he should be prohibited from applying for registration or permission to teach until 30 June 2014; and that any application for re-registration be accompanied by a psychologist’s report. The report would assess Mr Max’s appreciation of a number of matters such as appropriate teacher-student relationships and the responsibilities of teachers.
As Mr Max’s registration has been suspended since 22 March 2011, the proposed sanction would involve a period of three years and three months of exclusion from the profession. In previous cases cited by the College, involving inappropriate relationships with current students or sexual relationships with former students, exclusion periods between three and five years have been imposed. For example Queensland College of Teachers v Grisedale[3] involved a close personal relationship with a student followed by a sexual relationship and cohabitation within a week of the student finishing school. A five year exclusion period was imposed. At the lower end of the scale, Queensland College of Teachers v A Teacher[4] involved an escalating friendship during the student’s last couple of years at school followed by a single occasion of sexual contact five months after he had finished school and was aged 17. A three year exclusion period was imposed.
[3] [2011] QCAT 539.
[4] [2010] QCAT 225.
While each case necessarily turns on its own facts, QCAT strives for consistency in its decision-making. It seeks to impose sanctions consistent with previous decisions. The previous decisions cited by the College indicate that an exclusion period of at least four years is generally imposed for prolonged conduct such as that in which Mr Max engaged. There are, however, some distinguishing factors, which will be discussed shortly. Further, it is important to remember that QCAT’s role is not to punish teachers. So our task is not one of ensuring that Mr Max suffers a punishment commensurate with his wrongdoing. Rather, QCAT’s role is to further the objects of the Act, which are: to uphold the standards of the teaching profession; to maintain public confidence in the teaching profession; and to protect the public by ensuring education in schools is provided in a professional and competent way by approved teachers.[5]
[5] Education (Queensland College of Teachers) Act 2005 (Qld) s 3(1).
Accordingly, our task involves both censuring the improper conduct and seeking to minimise the likelihood of repetition.
The main factor distinguishing the present case from cases such as Grisedale is the long period – more than 14 years – during which Mr Max continued to teach without incident, before facing disciplinary action. He has not repeated the inappropriate conduct, so far as we know. The passage of time does not diminish the wrongness of the conduct, but it does suggest that Mr Max has learnt the error of his ways.
While Mr Max has not shown remorse or insight so far as the relationship in question is concerned, his co-operation in the disciplinary process – including agreeing that he is unsuitable to teach and that the proposed sanction should be imposed – indicates at least an awareness that the behaviour in question is unacceptable by community standards.
The College submits that the fact that Mr Max is now married with children, unlike when the conduct in question occurred, is a protective factor. To the extent that Mr Max’s current family circumstance means he is less likely to engage in such conduct, we accept that it has some relevance.
We also take into account that Mr Max has been through the very considerable stress and cost of criminal proceedings. This must have impressed on Mr Max some of the dangers inherent in conducting an inappropriate relationship with a student.
The proposed psychological assessment would address the key areas of concern. It is a prudent safeguard. The proposed wait until mid-2014 before Mr Max can reapply for teacher registration allows time for him to gain the necessary insight and awareness.
Weighing up on the one hand the seriousness of the conduct, and on the other the factors suggesting that the likelihood of repetition is low, and taking into account the terms of the proposed psychological assessment, we consider that the jointly proposed sanction is fitting.
CONCLUSION
Being satisfied that a ground for disciplinary action is established, and that the proposed disciplinary action is appropriate, we make orders accordingly.
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