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  • Unreported Judgment

Queensland College of Teachers v CMH

 

[2019] QCAT 282

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Queensland College of Teachers v CMH [2019] QCAT 282

PARTIES:

QUEENSLAND COLLEGE OF TEACHERS

 

(applicant)

 

v

 

cmh

 

(respondent)

APPLICATION NO/S:

OCR159-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

12 September 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe, Presiding

Member Quinlivan

Member Hemingway

ORDERS:

  1. The suspension of the respondent’s teacher registration ends as and from the date of this order.
  2. Other than to the parties to this proceeding and until further order of the Tribunal, publication is prohibited of any information that may identify CMH, the relevant student or former students or the relevant school.

CATCHWORDS:

EDUCATION – EDUCATORS – DISCIPLINARY MATTERS – where the respondent as a teacher engaged in inappropriate conduct with a student – where an agreed statement of facts presented to the tribunal – where a significant term of suspension had transpired as at the date of decision – whether it was appropriate for any further penalty to be imposed

Education (College of Teachers) Act 2005 (Qld), s 12, s 92(1)(h)

Briginshaw v Briginshaw [1938] HCA 34

Queensland College of Teachers v Armstrong [2010] QCAT 709

Queensland College of Teachers v Brady [2011] QCAT 464

Queensland College of Teachers v HL [2013] QCAT 631

Queensland College Teachers v Teacher MA [2011] QCAT 500

Queensland College of Teachers v Rudd [2011] QCAT 367

Queensland College of Teachers v Saunders [2013] QCAT 478

Queensland College of Teachers v Teacher BAM [2012] QCAT 694

Queensland College of Teachers v Utz [2015] QCAT 247

REPRESENTATION:

 

Applicant:

Self-represented by D Dupree, Principal Legal Officer

Respondent:

Butler McDermott Lawyers

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    The Respondent (‘CMH’) is a currently registered teacher who was first registered on 19 January 2015.
  2. [2]
    On 25 January 2017 the Queensland College of Teachers (‘QCT’) suspended her registration pursuant to section 49 of the Education (College of Teachers) Act 2005 (‘the Act’) on the basis that she posed an unacceptable risk of harm to children.
  3. [3]
    On 1 February 2017 in accordance with section 50(5) of the Act, QCT referred the matter of a continuation of her suspension to the tribunal for review and on 24 October 2017 the tribunal ordered that her suspension continue.
  4. [4]
    QCT has determined that a ground for disciplinary action exists against CMH pursuant to s 92(1)(h) of the Act namely that CMH has behaved in a way that does not satisfy the standard of behaviour generally expected of a teacher.
  5. [5]
    In this proceeding the tribunal must decide whether the ground for disciplinary action has been established.

Agreed statement of facts

  1. [6]
    The parties have filed an agreed statement of facts and material in the tribunal.
  2. [7]
    The agreed statement of facts sets out the interaction between CMH and a student (‘Student A’) between December 2015 and December 2016. Those interactions are as follows.
  3. [8]
    At the time of commencement of these events CMH was aged 26 years and Student A was aged 14 years.
  4. [9]
    CMH started working as a full-time first year teacher in the beginning of the 2015 school year.
  5. [10]
    CMH was part of the coaching staff for a school sporting team and became head coach in 2016.
  6. [11]
    Student A was not taught by CMH in any curriculum classes but was coached by CMH in the school sporting team in 2015 and 2016.
  7. [12]
    CMH coached Student A in extra-curricular athletic events. Significant periods of time were spent coaching and training Student A alone and in company with other students.
  8. [13]
    On 3 December 2015 following a sporting group dinner with students, including Student A. Student A and other students were driven home by CMH. Around midnight CMH noticed missed mobile telephone calls from Student A. CMH telephoned Student A who said she had run away from home and was considering suicide. CMH arranged to meet with Student A that night at a park. They met and CMH observed Student A to be in a terrible emotional state, ‘almost catatonic’. Student A refused to go home. CMH stayed with Student A at the park for several hours talking and eventually convinced her to return home. CMH drove her to the residence of a relative of Student A which was not her home.
  9. [14]
    CMH and Student A attended the same church. On 27 March 2016 Student A was dropped off at CMH’s home by Student A’s mother. It was CMH’s birthday. CMH accepted a gift from Student A for her birthday and CMH permitted Student A to enter and remain in CMH’s bedroom for a short time. Both CMH and Student A were collected by Student A’s father after a brief visit. CMH and Student A travelled together with a friend of CMH to another place where there was a birthday party arranged for CMH. Student A was collected from that function by her father.
  10. [15]
    CMH and Student A both participated in an extracurricular long-distance cross-country event in 2016. The event involved training beforehand. Over the period early 2016 to April 2016 CMH allowed Student A to come to her home on several occasions before and after training sessions for the event. Student A’s parents transported the student to CMH’s home.
  11. [16]
    On one occasion in early 2016 CMH went to a coffee shop with Student A and bought her a drink before training.
  12. [17]
    On another occasion in early 2016 they attended a sushi train restaurant and CMH bought Student A a meal after a training session.
  13. [18]
    From early 2016 CMH trained alone with Student A at outdoor locations at Mt Warning and Tallebudgera.
  14. [19]
    On or about 18 July 2016, following the long-distance cross-country event, CMH took Student A for a massage at a physiotherapist’s clinic and took a photograph of Student A being massaged. She obtained student A’s permission before taking her to the physiotherapist. CMH sent a copy of the photograph taken at the clinic to Student A’s father.
  15. [20]
    On an unknown date in term 2 of 2016, CMH and Student A attended together at another teacher’s residence and CMH subsequently drove Student A to the student’s home.
  16. [21]
    On 28 May 2016 CMH and Student A were alone together in CMH’s vehicle parked on a road at the Gold Coast. They discussed issues concerning Student A’s family and the student’s mental health. CMH sat with Student A to ensure Student A was not at risk of physical harm.
  17. [22]
    In term 2 of 2016 CMH permitted Student A to come to CMH’s home and then with another teacher they all went to church.
  18. [23]
    On an unknown date after July 2016 following a church related luncheon, CMH transported Student A to CMH’s home together with another teacher where they all socialised on the verandah. CMH transported Student A with her mother’s permission. After some hours CMH and the other teacher returned Student A to the church function.
  19. [24]
    On an unknown date in 2016 CMH exchanged telephone communications with another student concerning rumours amongst students about students’ perceived relationship between CMH and Student A.
  20. [25]
    In 2015 and 2016 CMH gave to Student A a Pandora Bracelet valued at $50, an imitation leather jacket valued at $25, and a Typo pencil case valued at $5. The bracelet followed an incident at a dinner when Student A experienced suicidal ideation and the other gifts were for Student A’s birthday.
  21. [26]
    On unknown dates on several occasions between 15 July and 22 September 2016, CMH permitted Student A to stay overnight at CMH’s home.
  22. [27]
    In relation to another sporting event on or about 22 July 2016 which CMH, Student A and other students attended, CMH permitted Student A to stay overnight at CMH’s home. CMH had obtained Student A’s father’s permission for the overnight stay on the basis CMH was collecting other students the following morning.

Concerns

  1. [28]
    Concerns were raised by teaching staff following the latter sporting event. The concerns related to the over-familiarity of CMH and Student A. A report was made to Queensland Police Service but the investigation determined that no criminal offence had been committed.
  2. [29]
    It is accepted by both the QCT and the Teacher that these events had negative outcomes.
  3. [30]
    CMH’s contract with School Z ended on 26 November 2016 and was not renewed.

Grounds for disciplinary action

  1. [31]
    The parties have agreed that there are grounds for taking disciplinary action under
    s 92(1)(h) of the Act. However, despite that agreement, this is a finding that must be made by the Tribunal on its own assessment of the facts and circumstances of the matter.
  2. [32]
    By s 92 of the Act:
  1. (1)
    Each of the following is a ground for disciplinary action against a relevant teacher:

  1. (h)
    the person behaves in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher
  1. [33]
    The standard of proof necessary is the Briginshaw[1] standard: on the balance of probabilities according to the seriousness of the allegations made and the gravity of the consequences flowing from a finding that the charge is established.[2]
  2. [34]
    By s 12 of the Act:

Suitability to teach—other considerations

  1. (1)
    In considering whether a person is suitable to teach, the college must also—
  1. (a)
    have regard to information held by the college or reasonably available to the college about each of the following matters—

  1. (3)
    Without limiting section 11 or subsection (1) or (2), a person is not suitable to teach if the person behaves in a way that—
  1. (a)
    does not satisfy a standard of behaviour generally expected of a teacher; and
  1. (b)
    shows the person is unfit to be granted registration or permission to teach.
  1. [35]
    As explained in Queensland College of Teachers v Armstrong:[3]

The… standard of behaviour generally expected of a teacher is not defined. However, the Tribunal agrees that the standard expected should be the standard ‘reasonably’ expected by the community at large, as the actions of a teacher may impact directly upon the children of the community; and this in turn should reflect the standard that those in the teaching profession would expect of their colleagues and peers.[4]

  1. [36]
    We determine the following behaviour associated with the interactions between CMH and Student A set out above did not satisfy the standard generally expected of a teacher and accordingly the disciplinary ground in s 92(1)(h) has been established:
    1. (a)
      Talking to Student A on the phone, arranging and meeting Student A at night in a park after midnight, talking with Student A about the student feeling suicidal.
    2. (b)
      Accepting a gift from Student A, allowing the student to attend her home and to attend a birthday party for CMH.
    3. (c)
      Allowing Student A to attend her residence prior to and then driving her to sports training.
    4. (d)
      Attending a coffee shop with the student after school.
    5. (e)
      Attending Sushi Train with the student after training.
    6. (f)
      Training alone with Student A at Mt Warning and Tallebudgera.
    7. (g)
      Taking Student A to a physiotherapy session and photographing her being massaged.
    8. (h)
      Sitting alone in a motor vehicle in the evening at 8.15pm discussing personal issues of the student (family and mental health).
    9. (i)
      Allowing Student A to attend her residence for several hours in the company of a teacher from another school on a Sunday after church lunch.
    10. (j)
      Failing to report Student A’s disclosures to her that she was experiencing suicidal ideation
    11. (k)
      Giving gifts to Student A including a Pandora bracelet (for Student A’s birthday), an imitation leather jacket and Typo brand pencil case.

Recognition of failure to satisfy the appropriate standard of behaviour

  1. [37]
    CMH recognises that her behaviour fell below the standard generally expected of a teacher.
  2. [38]
    CMH attended upon Dr D H P Harvey, a clinical psychologist, who has supplied a report about CMH. Dr Harvey has not found any sign of serious psychological disturbance with respect to CMH which suggest it is appropriate to delay her return to teaching.
  3. [39]
    Dr Harvey’s interventions with CMH addresses the distinction between her intentions and the public perception of her actions which is something he says she has ignored in the past. Dr Harvey says CMH realises that she cannot continue to ignore the public perceptions of her conduct, specifically, if brought to her attention by senior staff.
  4. [40]
    Dr Harvey has addressed the need for CMH to adopt a collegial approach to her role, seeking advice of senior colleagues, even when it may result in views that are adverse to her wishes. CMH acknowledges that she has failed to consult and seek the advice of senior staff to fulfil her role and responsibility to refer on any student mental health concerns.
  5. [41]
    This acknowledgement is a positive indication of CMH’s changed attitudes and perception and deepening understanding of the range of issues which has led to her suspension. These have included a lack of respect for colleagues, her tendency to pay too much attention to student opinion, a failure to accept direction and guidance, an inclination to place too much weight on student views and wishes, a mistaken reliance of parental approval to condone actions which step outside the usual boundaries of teacher student relationships.
  6. [42]
    CMH acknowledges her conduct led to the perception of an absence of impartiality. Other students feel disadvantaged from receiving adequate and equal attention from a teacher when a teacher fails to preserve the appropriate boundaries. CMH acknowledged to Dr Harvey that she, ‘got this wrong and intends to ensure it does not happen again.’
  7. [43]
    The report shows acknowledgement by CMH of the issues of concern about her behaviour, her inappropriate and incorrect handling of situations leading to her suspension, and notes her desire to avoid these errors in future. The Tribunal accepts these remarks of her overall intention to alter her conduct to attain the necessary standard required to meet her professional obligations and comply with the Code of Ethics.
  8. [44]
    In considering these allegations, the Tribunal has had the benefit of the evidence as set out in the confidential Investigation Report commissioned by the QCT, dated 16 November 2017 and supporting documentation. That documentation provides details of each of the allegations detailed in these Reasons.[5] 

What disciplinary action should be taken?

  1. [45]
    The purpose of teacher disciplinary action is not to punish the teacher, but to promote the objects of the QCT Act.[6] In summary, this involves upholding the standards of the profession, maintaining public confidence in the profession, and protecting the public by ensuring that education is provided in a professional way.[7]
  2. [46]
    In Queensland College of Teachers v Teacher BAM[8] the Tribunal said this about the matters to be considered in a disciplinary action:

A variety of factors are considered in reaching a decision and include: the nature and context of the behaviour itself, the level of insight a teacher may have in regard to the impact the behaviour may have on the students, school and community, what actions they have taken to remedy the behaviour, their teaching history, seniority and any leadership role they may hold. Overarching considerations include protecting students from harm and maintaining public trust and confidence in the teaching profession and upholding professional standards.[9]

Comparable Cases

  1. [47]
    Both QCT and CMH cite comparable penalty cases for consideration as to sanction. 
  2. [48]
    In Queensland College of Teachers v Rudd,[10] an inexperienced teacher interacted with a year 9 student meeting the student at a shopping centre, attending a movie together, hugging the student on two occasions, having regular contact by mobile phone and offering to become the legal guardian for the student. They resided in a small community.
  3. [49]
    The Tribunal found that the teacher did not satisfy the standard of behaviour expected of a teacher. Whilst the teacher showed no insight into the inappropriateness of her behaviour she was in her first year and had not received Code of Conduct training until term 4. The teacher had been suspended for 9 months and no further period of suspension was applied but a notation was placed on the register requiring a psychologist’s report to accompany a reapplication for registration with the report to address the teacher’s responsibilities and professional boundaries with students be addressed.
  4. [50]
    Then in Queensland College of Teachers v Saunders,[11] the teacher allowed two
    year 9 boys to stay overnight at his home. In addition the teacher was over-familiar with a number of male students and allowed a number of students to access restricted computer sites at school through the use of his personal log in/password.  The teacher showed no remorse or insight, failed to cooperate with the investigative process and did not provide any submissions to QCAT to explain his behaviour. He was suspended for 15 months and a notation placed on the Register with respect to conditions of re-registration.
  5. [51]
    CMH referred to Queensland College Teachers v Teacher MA.[12] This teacher was aged 55, communicated inappropriately by text and telephone with a year 10/11 student, failed to report risk of harm to the student and did not cooperate with the investigation. His registration was cancelled and he was prohibited from re-applying for registration for a period of 12 months with the requirement of a psychologist’s report prior to re-application.
  6. [52]
    QCT refers to Queensland College of Teachers v Brady[13] involving a teacher’s inappropriate relationship with two 15-16 year old students. There was a protracted pattern of conduct with the students which included transporting them, extensive interaction and gift giving, and the inappropriate use of swearing and sexualised comments to his class. This continued despite repeated intervention, warnings and guidance by administration personnel at his school. The teacher suffered depression, and was relatively inexperienced, but cooperated with the investigation. He was banned from re-applying for registration for 3 years less the 10 months during which he was suspended.
  7. [53]
    QCT also refers to Queensland College of Teachers v HL.[14] The circumstances of inappropriate conduct there bear many similarities to the circumstances of inappropriate conduct in the matter at hand. We note the Tribunal said there:

The proper role of a teacher, though, does not include being the close friend of students. The community does not expect teachers to be aloof, but over-familiarity is to be avoided. Over-familiarity carries a real risk of favouritism, or at least the perception of favouritism, by the teacher toward a particular student, or toward the students within an inner clique. Favouritism is at odds with values required by the Queensland College of Teachers’ Code of Ethics, namely integrity (by acting with impartiality) and justice (by being fair).[15]

  1. [54]
    CMH initially denied the majority of the allegations against her and to the inappropriateness of her conduct. The Tribunal accepts, however, that her initial denial was referable to lack of insight and an understanding of the boundaries set by her role and professional obligations.
  2. [55]
    At an initial hearing held on 30 July 2018 the Tribunal was not satisfied that CMH had attained the requisite insight to warrant her suspension to be lifted. A significant period of time has now elapsed since then however during which time CMH has not been able to teach.
  3. [56]
    CMH has, during the period of her suspension, sought professional assistance and now acknowledges that the conduct in the statement of agreed facts does transgress the boundaries she is required to vigilantly maintain. The Tribunal notes the youth of the Teacher but also the young age and vulnerability of Student A in this matter, as well as the protracted nature of the conduct, and the failure of CMH to appropriately consider and act upon the mental health concerns of the student.

Sanction

  1. [57]
    CMH submits the current suspension still in place is an adequate penalty on the basis that the teacher has been suspended since 25 January 2017.
  2. [58]
    QCT submits that the respondent’s registration should be cancelled and she be prohibited from reapplying for registration for a period of 26 months. Given the period of suspension to date, QCT also submits that the appropriate order to make now is to end the suspension of CMH’s teacher registration.
  3. [59]
    We concur.
  4. [60]
    The Order is:
  1. The suspension of CMH’s Teacher Registration is ended.

Non-publication Order

  1. [61]
    In previous proceedings in the tribunal in respect of this matter a non-publication order was made pending this final determination.
  2. [62]
    We determine that it would continue to be contrary to the public interest for information to be published which would identify CMH, any of the relevant students or former students, or the relevant school. Accordingly, we make orders pursuant to s 66 of the QCAT Act continuing the prohibition of the publication of that information.

Footnotes

[1] Briginshaw v Briginshaw [1938] HCA 34.

[2]  Ibid 362.

[3]  [2010] QCAT 709.

[4]  Ibid [33].

[5]  QCT Investigation Report, pages 13-17.

[6]  QCT Act, Schedule 3.

[7] Queensland College of Teachers v Utz [2015] QCAT 247, [13].

[8]  [2012] QCAT 694.

[9]  Ibid [41].

[10]  [2011] QCAT 367.

[11]  [2013] QCAT 478.

[12]  [2011] QCAT 500.

[13]  [2011] QCAT 464.

[14]  [2013] QCAT 631.

[15]  Ibid [10].

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v CMH

  • Shortened Case Name:

    Queensland College of Teachers v CMH

  • MNC:

    [2019] QCAT 282

  • Court:

    QCAT

  • Judge(s):

    Member Howe, Member Quinlivan, Member Hemingway

  • Date:

    12 Sep 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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