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Beresford v Director-General, Department of Justice and Attorney-General

 

[2020] QCAT 114

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Beresford v Director-General, Department of Justice and Attorney-General [2020] QCAT 114

PARTIES:

Sarah Margaret Beresford

 

(applicant)

 

v

 

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

 

(respondent)

APPLICATION NO/S:

CML258-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

22 April 2020

HEARING DATE:

12 February 2020

HEARD AT:

Rockhampton

DECISION OF:

Member Milburn

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that the Applicant's case is ‘exceptional’ within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case.
  2. Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal prohibits the publication of the name of the complainant student or any other student, their schools or their other personal information.
  3. The decision of the Tribunal is to be delivered to the parties by email.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – review of negative notice – review of a decision to issue a negative notice and cancel a blue card – where Applicant suffered disciplinary action as a teacher and her registration as a teacher was suspended – where Applicant had inappropriate physical and other contact with a student – whether exceptional circumstances exist – whether it is in the best interests of children to issue a positive notice

Education (Queensland College of Teachers) Act 2005 (Qld), s 49

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 220, s 221, s 228, Schedule 7

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492

Queensland College of Teachers v Rudd [2011] QCAT 367

WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

D Taylor, In-house Government Legal Officer of the Director-General, Department of Justice and Attorney-General

REASONS FOR DECISION

  1. [1]
    Queensland College of Teachers (QCT) suspended the registration of Sarah Beresford (nee Rudd) (‘the Applicant’) as a teacher on 10 June 2010 based on disciplinary action, namely that the Applicant was not suitable to teach, because of her actions in 2009.
  2. [2]
    The grounds for disciplinary action were that during 2009, while employed as a teacher at a high school, the Applicant:
    1. (a)
      inappropriately conducted herself with a (female) year 9 student (‘the student’) by arranging to meet the student with no apparent educational focus and she offered to become the student’s legal guardian;
    2. (b)
      [intentionally deleted];
    3. (c)
      engaged in inappropriate physical contact with the student;
    4. (d)
      inappropriately communicated with the student by telephone and mobile phone SMS;
    5. (e)
      inappropriately communicated with the student via email, on-line chat and internet social networking sites; and
    6. (f)
      breached policies of the employing authority and the QCT as the professional registration authority for teachers in Queensland.[1]
  1. [3]
    In short, the Applicant met the student at a shopping centre during school holidays and they attended a movie together, she maintained electronic communication with the student, and twice she hugged the student. There is no suggestion in the material that her actions were sexual in nature, or predatory. This occurred when the Applicant was 24 years of age, and a first year teacher. The Applicant said that the student reached out to her to disclose that she had been sexually assaulted by her step-father. The Applicant offered to be the legal guardian for the student.
  1. [4]
    Section 49 of the Education (Queensland College of Teachers) Act 2005 (Qld) allows QCT to suspend an approved teacher's registration or permission to teach if QCT reasonably believes the teacher poses an unacceptable risk of harm to children. ‘Harm’ to a child is defined by section 7(1) of the Education (Queensland College of Teachers) Act 2005 (Qld) as: ‘... any detrimental effect of a significant nature on the child's physical, psychological or emotional wellbeing’.
  2. [5]
    It is immaterial how the harm is caused.[2] Harm can be caused by physical, psychological or emotional abuse or neglect; or sexual abuse or exploitation.[3] This definition of ‘harm’ mirrors the definition of ‘harm’ found in Schedule 7 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the WWC Act’).[4]
  3. [6]
    QCT referred the matter to the Queensland Civil and Administrative Tribunal (‘QCAT’ or ‘the/this Tribunal’) and on 5 May 2011, QCAT found that the grounds for disciplinary action was established and made an order that any application for re-registration by the Applicant be accompanied by a psychologist's report addressing a number of issues (‘the QCAT Decision in 2011’).[5]

Denial of a blue card by Blue Card Services

  1. [7]
    On 6 July 2018, the Applicant applied for a blue card under the WWC Act. On 24 June 2019, the Director-General, Department of Justice and Attorney-General (‘the Respondent’), through Blue Card Services (‘BCS’), issued a negative notice[6] under the WWC Act, denying the Applicant her request. BCS provided the Applicant with written notice of the decision, the reasons for the decision (‘the Reasons Document’)[7] and review information. The Applicant now applies to this Tribunal, on review, for a blue card, so that she may tutor students. This is not an application for reregistration as a teacher.
  2. [8]
    The Tribunal is not confined to consider the work actually undertaken, or intended, by the Applicant. The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland, and BCS does that through a scheme requiring the screening of persons employed in particular employment or carrying on particular businesses.[8] That object has been extended to ‘… screen persons who work, or wish to work with children, to ensure that they are suitable persons to do so’.[9]
  1. [9]
    The Applicant has not been charged with or convicted for any offences. So the concern to BCS, and this Tribunal relates solely to the disciplinary matter.
  2. [10]
    In the QCAT Decision in 2011, the learned members concluded that the Applicant was not suitable to teach. 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.[10] The test for the Tribunal in this case is different. Under the WWC Act, a positive notice must be issued unless it is an exceptional case in which it would not be in the best interests of children for the Applicant to be issued with a positive notice.[11]
  3. [11]
    BCS included the following notation in the Reasons Document:[12]

The suspension of the applicant's teacher registration on the basis that she presented as an unacceptable risk of harm to children is therefore highly relevant in this assessment.

  1. [12]
    The Tribunal has a wide discretion to determine whether this is an exceptional case. Each case is to be considered on its own facts. The Tribunal is to make the correct and preferable decision[13] by considering the evidence as at 12 February 2020, being the date of this Tribunal hearing. The Tribunal considers the Applicant’s transgressions in 2009, the QCAT Decision in 2011 and relevant matters since that time in determining whether this is an exceptional case. The Tribunal must consider section 228 of the WWC Act, as if it was the ‘chief executive’.[14]

228 Deciding exceptional case if disciplinary information exists

  1. (1)
     This section applies if the chief executive—
  1. (a)
     is deciding whether or not there is an exceptional case for the person; and
  1. (b)
     is aware of disciplinary information about the person.
  1. (2)
     The chief executive must have regard to the following—
  1. (a)
     the decision or order of the decision-maker relating to the disciplinary information and the reasons for the decision or order;
  1. (b)
     any decision or order of an entity hearing and deciding a review of, or appeal against, a decision or order mentioned in paragraph (a), and the reasons for the decision or order;
  1. (c)
     the relevance of the disciplinary information to employment, or carrying on a business, that involves or may involve children;
  1. (d)
     anything else relating to the disciplinary information that the chief executive reasonably considers to be relevant to the assessment of the person.
  1. [13]
    The Tribunal must consider whether the Applicant has gained insight into her behaviours, and insight into triggers, and determine whether these matters have been addressed.

The QCAT Decision in 2011

  1. [14]
    The learned members[15] considered the grounds for disciplinary action and made findings of fact. The relevant parts of the QCAT Decision in 2011 are as follows (adopting the paragraph numbering from the QCAT Decision in 2011):

[10] Ms Rudd was employed as first year teacher at a regional Queensland high school from January 2009 to December 2009. She taught the student in term 1. The student, who was vulnerable, then returned to her home elsewhere in Queensland at the end of term 1 and ceased attending the school.

[11] In context, Ms Rudd was a first year teacher who was not given training on the DET Code of Conduct until fourth term 2009: her actions which led to these disciplinary proceedings occurred largely, if not wholly before the training was provided to her. The school principal confirms that Ms Rudd spoke with him about her concerns for the complainant student on several occasions while the student attended the school. He confirms that he thought it was important for the lines of communication to be open, given the student’s approaches to the teacher, in light of her vulnerability.

[12] A part-time guidance officer at the school gave a statement to the effect that she warned Ms Rudd to be careful in her interactions with the student and aware of the limits of what she could do.

[13] The allegations, except the allegation that the teacher offered to become the student’s guardian which is said to have occurred during the time the student attended the high school and after she had left, relate to events which QCT alleges occurred after the student left the school.

[14] A large volume of evidence was provided by QCT, including multiple statements from the teacher, the student, as well as the student’s mother, other students and various teachers. Unhelpfully, different versions of events are frequently presented in subsequent statements. The student significantly changed her evidence substantially during her third interview.

[15] The evidence regarding each of the allegations which QCT relies upon is considered briefly below.

Inappropriate Conduct

[16] The teacher admits that she met the student at a shopping centre during school holidays in 2009 and that they attended a movie together. There is some evidence from the student in her final statement that she met up with the teacher on a second occasion at a shopping centre, although she had earlier denied meeting her at all. There is some hearsay evidence of other students which supports that the student told other students of the arrangement.

[17] The tribunal accepts that on at least one occasion, they met at a Brisbane shopping centre outside of school term.

[18] In the transcript of her interview conducted on 24 November 2009, Miss Rudd refers to a conversation with the student about emancipation early in term 1, 2009. She says that she indicated to the student that as far as she knew it was not available in Australia but if it did occur, the student ‘would need someone to go to if it was’. When the student told her she had no-one to go to she told her that ‘if you have no one else you can live with me because I’ve always wanted to be a foster mum’. The teacher went on to say that once she had said the words, she regretted it immediately and went to her principal with her concern for the student.

[19] The teacher asserted that she recognised that she should not have made the comment and went on to say that she began to distance herself from the student, realised that she was becoming more involved with the student than she should be, and also unsure of her role when dealing with such a student. Despite her reluctance to engage, the student continued to approach Miss Rudd.

[20] A former flatmate of Ms Rudd, another first year teacher with whom she shared until June 2009, speaks about ongoing conversations with the teacher during that period in which the teacher spoke of establishing a legal relationship between herself and the student. The student in her third interview says that after leaving the school, she and the teacher had discussions via email about this about twice each month. Another student said that she saw email[s] which referred to the student getting emancipated and being adopted by the teacher.

[21] The tribunal accepts that the teacher offered to become the child’s legal guardian, and that there were some ongoing discussions to this effect between the student and the teacher.

[22] It is alleged that the teacher gave the student mobile phone credit after the student had left the school. Both the teacher and the student denied the allegation. Copies of extracts from emails between the student and the teacher provided by the student’s mother, includes comments which suggest that Miss Rudd did provide credit for the student’s mobile phone account. Ms Rudd however, denied responsibility when confronted with the evidence suggesting someone else may have accessed her Facebook account. The student, even in her third statement, in which she corrected other aspects of her previous evidence which she said was incorrect, denied that the teacher gave her phone credit.

[23] The copies of the email are said to be, in essence, incomplete extracts. It is not apparent whether they have been added to in any way. The tribunal considers, having regard to the requisite standard of proof, that it would be inappropriate to rely upon the extracts as having any probative value. In the circumstances, the tribunal does not accept on the balance of probabilities that the teacher provided mobile phone credit to the student.

Inappropriate communication

[24] The evidence of the teacher, the student and the various other witnesses is contradictory about the extent of the contact between the teacher and the student through text messaging, email, on-line chat and social networking sites. However, the teacher admits to text messaging, and Facebook contact. She suggests it was occasional and that she deleted the student from her Facebook friends after Code of Conduct training in term 4 made it clear that this was inappropriate.

[25] The student in her third statement says that text messaging occurred more than once daily, and that they also spoke on the weekends. She also says that email contact was daily after she left the school. The evidence of other students who went through the student’s email records confirm that this was the case.

[26] The tribunal accepts on the balance of probabilities that there was regular text messaging, Facebook contact and email between the student and the teacher after the student left the school.

[27] The QCT alleges that the teacher engaged in inappropriate physical contact with the complainant student in that she and the student hugged on at least two occasions. The teacher admitted in interview that she hugged the student, in [the] following terms, ‘Well then I gave her a quick hug at that point and said okay, see you later, have fun and I left’.

Policy

[28] The Department of Education Training and the Arts (DET) Code of Conduct in section 2.3.2, requires interactions with students to be professional at all times. In particular, spending significant time alone with a student other than to perform the teacher’s professional duties is referred to as raising the possibility of the Code being breached. Inappropriate touching is stated to be misconduct. The QCT Code of Ethics includes a responsibility to create and maintain appropriate professional relationships.

Discussion and Decision

[29] The tribunal must determine whether there are grounds for disciplinary action against the teacher. It has accepted that Ms Rudd met the student at a shopping centre; offered to become her legal guardian; regularly communicated with the student by electronic media after she left the school; and hugged the student on two occasions.

[30] The QCT submits that Ms Rudd’s behaviour, which occurred over a protracted period, demonstrates a lack of professional detachment. The tribunal accepts that this behaviour is not consistent with the maintenance of a professional relationship with the student as is required by the DET and QCT Codes of Conduct. The tribunal also considers that it constitutes behaviour which does not satisfy the standard of behaviour generally expected of a teacher as referred to in section 12(3) of the Act.

[31] There are some potentially mitigating factors. Ms Rudd was a first year teacher. She did not receive Code of Conduct training until term 4 of that year. Her principal considered keeping the lines of communication open with the student important given her vulnerability. The teacher was living in a small community. However, she was not entirely without support, and the guidance officer had warned her to be careful in her interactions with the student.

[32] Further, QCT argues that the teacher minimised her behaviour in the interviews conducted throughout the investigation and that therefore, there is no evidence that the teacher has insight into the inappropriateness of her conduct.

[33] QCT seeks an order prohibiting the teacher from re-applying for registration for one year, and an order that should she reapply for registration as a teacher, that her application include a psychologist’s report dealing with matters relating to the establishment and maintenance of personal and professional boundaries when dealing with students, legal obligations of teachers and tutors, and an awareness of the trust and power granted to teachers.

[34] The tribunal considers Miss Rudd’s inexperience and the delay in her training about the code of conduct, and the limited support and guidance provided to her as a newly qualified teacher in a rural community to be relevant mitigating factors, although they do not overcome entirely her apparent lack of insight into the inappropriate behaviour.

[35] Ms Rudd’s teacher registration was suspended on 10 June 2010 and the suspension was current until her registration expired in late March 2011. Accordingly, she was suspended for some 9 months before becoming a former approved teacher. At hearing, QCT acknowledged that 9 months suspension was in range of appropriate sanction for the behaviour alleged.

[36] The Tribunal considers, given the mitigating factors referred to, that Ms Rudd’s period of suspension is adequate in the circumstances. Accordingly, a further period of prohibition during which Ms Rudd may not seek re-registration is not imposed. However, the tribunal is satisfied that it is appropriate to order that any reapplication for registration include a psychologist’s report addressing certain issues as set out in the tribunal’s orders.

  1. [15]
    The Tribunal does accept that the QCAT Decision in 2011 identified the Applicant's lack of insight into her appropriate behaviour as a significant factor of concern at the time.

Risk factors and protective factors

  1. [16]
    The actions of the Applicant resulted in disciplinary action in 2010 and 2011, but to what extent has the Applicant modified her behaviour and to what extent should her actions at that time be regarded as being a risk to children at this time? These are key issues for the determination of the Tribunal.
  2. [17]
    The relevance of the disciplinary information to employment, or carrying on a business, that involves, or may involve, children was considered in the Reasons Document, as follows:[16]

The disciplinary information relates to the applicant's conduct whilst she was a registered teacher. This is highly and directly relevant to the applicant's eligibility to engage in child-related employment through the issuing of a positive notice and blue card, as the role of a teacher is to directly engage with children in both a one-to-one basis, and with children in group settings. Teachers are also looked upon by the community as role models towards children, and the influence of teachers on their students can be profound and long-lasting.

The applicant, through her employment as a school teacher, was subject to disciplinary proceedings for engaging in inappropriate behaviour with a student which included meeting the student at a shopping centre, offering to become her legal guardian, regularly communicating with the student through various electronic forms and inappropriate physical contact. The occurrence of inappropriate conduct, communication and physical contact between a teacher and a student is unacceptable, regardless of the nature of the teacher's intentions. The applicant's behaviour demonstrated a lack of professional detachment and an inability to recognise and put in place appropriate child protective behaviour when placed in a position of authority with respect to children.

The applicant held a position of trust, responsibility and authority in relation to the student and her behaviour constituted a breach of the position which she held. The conduct which formed the basis of the disciplinary information does not accord with the behaviour expected of a person entrusted with the care and wellbeing of children and young people.

  1. [18]
    The Tribunal must balance relevant risk and protective factors in each case and, where there are multiple factors in a case, the Tribunal must apply weight to the relevant factors.[17] That requires the Tribunal to undertake a careful analysis of the circumstances in the case, which involves the application of a discretion.

Matters to which the Tribunal must have regard

  1. [19]
    The Tribunal must consider whether the circumstances identify a risk sufficient to warrant being satisfied that it is an exceptional case in which it is not in the best interests of children for a positive notice to be issued. Each case must be dealt with on its own facts. The issue for the Tribunal is one that must be considered within the context of the individual circumstances of the Applicant and the circumstances of the offending behaviour, and is ultimately one that requires the Tribunal to exercise a discretion, bearing in mind the requirement to determine whether there is a real and appreciable risk to the safety of children as a result of its decision.
  2. [20]
    The Applicant produced many witnesses in support.

Information provided by the Applicant

  1. [21]
    The Applicant provided a statement dated 25 November 2019, which contained the following relevant comments:
    1. (a)
      At the time of the incident she was employed as a teacher where her profession was to teach and guide students in the subject content for which she was responsible.
    2. (b)
      She acknowledges that she stepped outside appropriate boundaries, by saying:

The decisions I made saw me step outside my professional boundaries and cross into personal limits. Although I was advised by people at the time not to engage in such behaviour, I still pushed forward. In doing so, I tarnished my career as a teacher and was responsible for the emotional harm to the student. That I was only a first year, ‘inexperienced’ teacher is no defence or excuse, as I see it, I was the adult in the situation and should have sort [sic] help from the correct and qualified personnel.

… my actions and decisions saw the relationship branch to a personal level, which was extremely inappropriate. I have mentioned multiple times, when talking to people, that if I could go back and change the decisions I made, I would, but I know that is not possible. However, I have learnt from my decisions and made better choices since the mistakes I made at that time. I don’t deny that my actions have affected people, and that, I can never erase or correct.

Since the disciplinary action, I have a child of my own, and to put him in the place of the student scares me. As a mother, I would like to think that if my son approached a teacher that the teacher would guide them to the appropriate people to help and would feel that they can contact me advising me as to what is happening. These are actions that I did not do, and for that I am sorry. I understand that I have caused emotional discomfort and pain to people through my actions, and I myself, as a mother, now see the fear and harm this can cause.

  1. (c)
    She is an aunt to teenagers, and she has friends with teenage children, and she engages with them.
  2. (d)
    Physical contact with any of these children, even though she is known to the parents, is nothing more than a ‘high-five’ and only when their parents are present.
  3. (e)
    She went on to speak of the decision of Blue Card Services in these terms:

I believe I have learnt an extremely valuable lesson. One that I should have not needed to learn being an adult and in a profession where I was trusted with children, but the choices I made set me on this path. Once again, I know my actions were wrong and inexcusable. The process that I am now going through is just and right, and I respect it, as the safety of children is paramount in society. The purpose of Blue Card Services is to keep children safe, and my son, and his friends, are in that category.

The evidence of the Applicant at the Tribunal hearing

  1. [22]
    The Applicant was cross-examined at the Tribunal hearing, and during her evidence the Applicant said:
    1. (a)
      after school, she studied law for six months but then fell ill. When she recovered, she decided to study teaching and she supplemented her study by working on a part-time basis;
    2. (b)
      she finished her teaching degree in 2008;
    3. (c)
      as a teacher, she worked at a regional location for one year before being transferred to a region near Brisbane;
    4. (d)
      she is now heavily focused on being a mother and, as a volunteer, she wants to assist in her son’s activities and, as a career, she wants to use her degree to tutor students academically;
    5. (e)
      she has consulted her general practitioner for a health care plan;
    6. (f)
      the decision she made in 2009 went beyond professional boundaries and she is very sorry for her actions;
    7. (g)
      she knows that her role was to speak to the curriculum and speak to the content;
    8. (h)
      she did report the student’s allegation of sexual assault (by the student’s stepfather) to her Principal, but she has no document to corroborate that she made the report;
    9. (i)
      when the student approached her with that complaint, she should have gone to the (proper) authorities – that is other than her Principal;
    10. (j)
      she now sees the harm by being directly involved with the student;
    11. (k)
      she did meet the student and they did see a movie together, which was inappropriate;
    12. (l)
      she did offer to be the student’s foster mother and legal guardian, and that was inappropriate;
    13. (m)
      there was regular contact with the student by email and through Facebook, and she accepts that was inappropriate;
    14. (n)
      QCAT found in 2011 that she lacked insight and she accepts that, at the time, that was true;
    15. (o)
      she did withhold information during the first interview with Dr Rofe;
    16. (p)
      she omitted information in the original interview with Dr Rofe, psychiatrist, by:
      1. (i)
         saying that she had contact with the student, but only through Facebook;
      1. (ii)
         not advising him about sending emails (that were sent); and
      1. (iii)
         not advising him about hugging the student (which she did);
    17. (q)
      she was truthful during the second session with Dr Rofe;
    18. (r)
      she did say to Dr Rofe that the student been sexually assaulted, which she believes to be true;
    19. (s)
      she has tried to consider why this happened and what were the root causes of her actions;
    20. (t)
      she said that Dr Rofe raised the issue of her own vulnerability;
    21. (u)
      she believes the trigger at the time was a ‘need to be needed’;
    22. (v)
      she accepts that this phrase was not included in Dr Rofe’s reports, but she did raise it with Dr Rofe, and she was surprised he did not include it in his reports;
    23. (w)
      when she went to her first placement, being a regional school, she had very little contact with colleagues, but when she moved to a much larger school near Brisbane, she was able to consult with many senior teachers and have professional conversations with teachers who acted as counsellors and mentors;
    24. (x)
      she did learn from her actions – a student did approach her when she moved to the larger school and she ensured that any discussion with the student was within school hours and within the open classroom, with others around; and
    25. (y)
      she does accept that tutoring on a one-on-one situation represents a potentially higher risk.

The evidence of Doreen Maslen (Applicant's former colleague and friend of the Applicant)

  1. [23]
    Doreen Maslen provided a letter of support for the Applicant dated August 2018, which included the following statement:[18]

I have known Sarah Beresford for 5 years and during that time have known her through first work and then friendship.

My name is Doreen Maslen. I am 60 yrs old, and I met Sarah when she needed someone to help her in a domestic need. I also babysit her son [name withheld] on a weekly basis. Sarah has become a member of my daughter’s and also my household. She is a very kind hearted and generous person. Her son is highly intelligent. I put this down to her teaching abilities. She also tutors my grandchildren and babysits if it is necessary. Sarah does a lot of charity work for our community and is very respected. She has raised $7200 for our farmers.

I have observed Sarah on many occasions with other children. I have attended her child’s birthday parties as she has with my grandchildren. She is very conscious of their safety and well-being. I have never once felt at any time that she would put any child at risk or neglect. She is always happy and interacts with the children in a positive way. Being a very protective Nana I never had any problems leaving any child with this lovely lady. She is a very organised and clean person and always puts the well-being of her son first.

  1. [24]
    Doreen Maslen provided a second letter of support not long before the Tribunal hearing in 2020. In it, she confirmed that she has spoken with the Applicant about the situation of her inappropriate misconduct and communication with one of her female students. Despite that, she does not have any doubt about any child safety involving the Applicant. She has full respect for the Applicant and does not consider the Applicant to be a threat, or mistreat anyone, let alone children.
  2. [25]
    Doreen Maslen gave evidence at the Tribunal hearing:
    1. (a)
      she has known the applicant for six years, through her daughter’s work;
    2. (b)
      the Applicant is very professional and is very good and kind with children;
    3. (c)
      she did not see the Reasons Document but has discussed the matters with the Applicant.

The evidence of Elizabeth Westlake (Applicant's former colleague)

  1. [26]
    Elizabeth Westlake provided a letter of support for the Applicant dated 15 August 2018, which included the following statement:[19]

I have known Sarah Beresford for 15 years and during that time have known her through work originally then socially.

I have never known Sarah to behave in any way threatening to a child’s well being.

In the time I have known Sarah I have seen her interact with all ages of children in a professional + respectful manner,

Sarah has strong morals + values which make her not only a wonderful person to know but also one well equipped to work with children.

I have observed Sarah with her niece + nephew and friends children. Her actions are fair, honest + gentle. Sarah has the unique ability to relate to a child at their own level while remaining an adult in charge of their safety + guidance. During my time working with Sarah I also observed Sarah interact with teenagers in work + social situations. At no time was I concerned by any of her actions.

  1. [27]
    Elizabeth Westlake provided a further letter in support dated 22 November 2019. She said that prior to being employed as a teacher, the Applicant held several positions where she was involved directly with children. In each of these roles, she observed the Applicant act with integrity and compassion for those in her care. One of those positions involved acting as a dorm mistress for a boarding college, which required her to be a caretaker while the students were away from home. The Applicant provided students with guidance, boundaries and support.
  2. [28]
    Elizabeth Westlake gave evidence at the Tribunal hearing:
    1. (a)
      she worked together with the Applicant, and she has observed the Applicant deal with people of all ages, including teens;
    2. (b)
      the Applicant is encouraging and supportive;
    3. (c)
      she has never seen the Applicant in a position that she could not handle;
    4. (d)
      if others are in trouble, the Applicant helps and is always available for others;
    5. (e)
      she is aware of the details about why the Applicant no longer teaches;
    6. (f)
      the Applicant has grown from the harsh lessons of the past and she has learned where to ‘draw the line’;
    7. (g)
      since the Applicant has a child herself, she has changed, as she now has less time to be involved in the lives of others; and
    8. (h)
      in her opinion, the Applicant would be never harm a child and she fully trusts her with children.

The evidence of Jacqui Giles (fellow parent)

  1. [29]
    Jacqui Giles provided a letter of support for the Applicant dated 16 August 2018, which included the following statement:[20]

1 have known Sarah Beresford for 4 yrs and during that time have known her through a fellow parent.

Sarah is a very kind hearted and beautiful lady. I met her at the local daycare centre here as we have sons the same age. Whenever there is [sic] any fundraisers, Sarah is always first to put her hand up to help the community. She is a dedicated mother and also provider for our mums and bubs group. She is a responsible, caring and honest woman.

As previously stated, we have children the same age. Watching Sarah around other children and play dates with my own child, she is caring, fun and always very particular when it comes to their safety. We attend birthday parties together and local parent groups. I sincerely can say, she is a wonderful mother and would never jeopardise the safety of any child of any age. She is an asset to our community.

  1. [30]
    Jacqui Giles gave evidence at the Tribunal hearing:
    1. (a)
      she has known the Applicant for six or seven years;
    2. (b)
      their children are together in child care;
    3. (c)
      she has read the Reasons Document;
    4. (d)
      the Applicant is a caring and kind person who is not aggressive; and
    5. (e)
      the Applicant would not now act in a way that would cause harm to children.

The evidence of Michelle Shonhan (Friend of the Applicant) 

  1. [31]
    Michelle Shonhan provided an undated letter of support for the Applicant, which included the following comments:
    1. (a)
      she and the Applicant had been long-term friends;
    2. (b)
      the Applicant is a very loyal, compassionate, trustworthy, caring person who always puts the needs and wants of others before herself;
    3. (c)
      they are both parents and the Applicant plays a big part in her son’s life and she has always been great around him;
    4. (d)
      she wholeheartedly trusts the Applicant with her own child;
    5. (e)
      they have shared advice on life, parenting and adulthood and have spoken in a way that is truthful and honest with each other;
    6. (f)
      the Applicant spoke with her about the disciplinary action on more than one occasion and the Applicant knows that what she did was wrong, and she overstepped ‘proper bounds’; and
    7. (g)
      the Applicant was hugely regretful of her actions and she would do anything to change what happened by following the correct procedures.
  2. [32]
    Michelle Shonhan gave evidence at the hearing, and the relevant content is as follows:
    1. (a)
      she has known the Applicant since they were both 13 years old;
    2. (b)
      they are friends;
    3. (c)
      the Applicant is very good with children and she would trust the Applicant with any child;
    4. (d)
      she has spoken with the Applicant about her inappropriate behaviour and the disciplinary action that followed;
    5. (e)
      the Applicant does ‘own her mistakes’; and
    6. (f)
      the Applicant would not harm children.

The evidence of Terri-lee Stevenson (Fellow parent and member of local community group)

  1. [33]
    Terri-lee Stevenson provided a letter of support for the Applicant dated 14 August 2018, which included the following statement:[21]

My name is Terri-lee Stevenson. I have 2 children, [IR] 13 years old and [BR] 11 years old. I have known Sarah Beresford for 3 and a half years now, since I moved here from Brisbane after my husband was killed in the [mining] Industry. Sarah and I became friends from a local community group as I was looking to put myself back into social communities. When I started to become friends with Sarah, she had told me about the incident when she was in her first year of being a teacher. I was shocked to hear what had happened to her and that she had to stop doing what she loves, being a teacher all because she was trying to help a child in need. Sarah is a wonderful, respectful woman who would do anything she could to help someone in need. I had asked her if she would be able to help my children with their testing, assignments and homework for school knowing full well about the accusations made against her. Since the death of my husband, my children were -massively struggling with school. Soon after Sarah started to help them, I noticed a huge difference in their self-confidence. My daughter has come from a D [average] to an A-B [average] and my son is an A student. How much they have improved seems like a miracle and is a credit to Sarah. Not once have I ever felt that they would be in danger around her and the children just adore her. I often have to travel to Brisbane in regards to my court case of my late husband and the children go over and stay with Sarah and her family. To suggest they would be in any sort of harm is absurd. Sarah in my point of view, has an amazing gift with teaching children and I have so much respect for her. If it was not for the dedication she has provided my children, they would not be passing school. I have in fact told my sister how much she has helped my children and my depression after my husband passed. She now also helps my niece and my nephew and my sister is also aware of what she was accused of doing and my sister was in disbelief as well. My sister is also extremely grateful to Sarah and is amazed how well her children are now doing at school.

Child-rated observations

I have seen Sarah interact with my children, my sisters [sic] children and at birthday parties with children of the same age. She is a caring woman and her interaction with other children is always with their safety and well being at heart. I have never once seen her act in a way that would put their safety at risk. As a small community, no other parent has ever had any concerns about her interactions with their children. My children and my sisters children love being around Sarah as we often go camping, fishing and skiing. Sarah frequently has my children on over night stays as I travel to Brisbane on a frequent basis. They always feel safe in Sarah’s care. She has never touched any child in an inappropriate way or ever suggested any-thing inappropriate to them. If my children are sick or have a rash etc. She always asks me if it is ok for her to look at the symptoms. Sarah is a very liked and respected member of this community.

If you have any questions regarding this, please do not hesitate to contact me ...

  1. [34]
    She also provided a letter dated 26 November 2019, and in that she confirmed that she has read the Reasons Decision. She described the Applicant as very well-respected, an amazing mother and one of the best people she has ever known.
  2. [35]
    Terri-lee Stevenson gave evidence at the Tribunal hearing:
    1. (a)
      she said the children love the Applicant and she interacts very well with them;
    2. (b)
      she said the Applicant was very open with her about her inappropriate communication with the student and lack of professionalism; and
    3. (c)
      the Applicant would not harm the children.

The evidence of Rebbeca McKinnirey (Friend of the Applicant)

  1. [36]
    Rebbeca McKinnirey provided a letter of support for the Applicant dated 29 November 2019, which included the following comments:
    1. (a)
      She is aware of disciplinary action taken against the Applicant and it does not affect what or how she feels and thinks about the Applicant; and
    2. (b)
      the Applicant is a most outstanding teacher, friend, mum and she is blessed to have her in her son’s life.
  2. [37]
    Rebbeca McKinnirey gave evidence at the Tribunal hearing and she supported the comments made in her letter.

The evidence of Jennifer Tuyogen (Friend of the Applicant)

  1. [38]
    Jennifer Tuyogen provided a letter of support for the Applicant dated 1 December 2019, which included the following comments:
    1. (a)
      she has known the Applicant since the start of high school, and she has been a great lifelong friend;
    2. (b)
      every interaction she has seen between the Applicant and children has been positive;
    3. (c)
      she know the Applicant to be very protective, disciplined and nurturing through her actions and the demonstrated behaviour, manners and social skills of those children; and
    4. (d)
      she is aware of the disciplinary action against the Applicant and it is with great sadness that the Applicant is not able work in her chosen field, but from all of the interactions she has had with the Applicant she has never seen, heard or been led to believe that the Applicant would ever knowingly or willingly place a student in harm’s way.
  2. [39]
    Jennifer Tuyogen gave evidence at the Tribunal hearing and supported the comments made in her letter. She said that the Applicant is very caring and protective.

The evidence of Wendy Wright (Friend of the Applicant)

  1. [40]
    Wendy Wright provided a letter of support for the Applicant dated 28 November 2019, which included the following comments:
    1. (a)
      she has known the Applicant since 2012;
    2. (b)
      they have remained in close contact and they have developed a friendship;
    3. (c)
      she has often seen the Applicant’s interactions with the Applicant’s own family, and she is aware of why the Applicant left her employment as a teacher, and this has never been of concern to her:
    4. (d)
      the Applicant is always respectful and courteous; and
    5. (e)
      in relation to interactions with children, the Applicant is someone who is trustworthy and is a reliable adult role model and she has no qualms in leaving children in the Applicant’s care.
  2. [41]
    Wendy Wright gave evidence at the Tribunal hearing:
    1. (a)
      she has not read the Reasons Document; but
    2. (b)
      the Applicant is a reliable role model to children.

The letter from Dr Debra lbbotson, General Practitioner

  1. [42]
    Dr lbbotson provided a letter of support for the Applicant dated 20 August 2018, which included the following comments:[22]
    1. (a)
      Dr lbbotson had known the Applicant for two years as her treating general practitioner.
    2. (b)
      Dr Ibbotson believed that the Applicant is mentally stable, and she had no major mental illness.
    3. (c)
      Dr Ibbotson stated that the Applicant was ‘safe and fit to be working with children’.

The first Report of Dr Peter Rofe, Psychiatrist

  1. [43]
    Dr Peter Rofe provided a report dated 8 October 2018, which included the following commentary:[23]
    1. (a)
      He had been asked by Dr Ibbotson to assess the Applicant regarding her suitability to obtain a blue card.
    2. (b)
      He conducted a full assessment of the Applicant.
    3. (c)
      Prior to conducting this assessment, he had not treated the Applicant and was not involved in her ongoing care, however he noted that he was happy to do so if the Applicant requested ongoing treatment from him.
    4. (d)
      ‘I feel there are no major contraindications to her holding a blue card.’
    5. (e)
      The event of concern occurred in 2009 and involved the applicant having Facebook contact with a student at school.
    6. (f)
      ‘Certainly it seems as if this fourteen year old girl [the student] at the time had major personality issues’.
    7. (g)
      The student had formed a close dependent relationship with the Applicant.
    8. (h)
      The Applicant had advised him that she made full disclosure to the Education Department and when guidelines came to her attention in relation to social media contact with students, she cut off contact with the student.
    9. (i)
      The student acted adversely to this and reported the matter to Education Queensland and the Queensland College of Teachers was also brought into the matter.
    10. (j)
      ‘This had a devastating [effect] on Ms Beresford to the point that she gave up teaching.’[24]
    11. (k)
      ‘It seemed that these issues were being worked through by Education Queensland, but she had lost confidence in teaching and did not want to go back to it.’
    12. (l)
      The Applicant had now expressed a desire to tutor.
    13. (m)
      On the basis of the information provided to him by the Applicant and Dr Ibbotson, Dr Rofe believed that there were no clear reasons why the Applicant should not be granted a blue card.
    14. (n)
      The Applicant had been treated by her General Practitioner for clinical depression and had recently commenced anti-depressant medication.
    15. (o)
      He had increased the Applicant's initial dose of the antidepressant medication as she was reportedly still somewhat flat in mood.
    16. (p)
      He believed that the Applicant's mood should respond to the antidepressant medication.
    17. (q)
      ‘It seems that there has been a pleasing personal maturation that she can now tackle these issues of nine years ago.’
    18. (r)
      The Applicant had expressed to Dr Rofe a genuine desire to resume tutoring.

The second Report of Dr Peter Rofe, Psychiatrist

  1. [44]
    Dr Peter Rofe provided a report dated 16 January 2020, as follows:

I would like to write a supportive letter for Ms Sarah Beresford's objection to the decision to issue a negative notice concerning her Blue Card renewal. I have read through the reasons for the decision to issue a negative notice on her. I have read through the critique of my report and agree with the findings at that point in time. The limitations of my report, which were based on her disclosure and my interview with her. I can fully understand the decision and reasons for my report being given only limited weight and the fact that a negative notice to the applicant was issued on 24 June 2019.

I would like to relay the details of my contact with her on 19 December 2019. I feel that there has been a significant shift in her perception and acceptance of herself-acknowledged misdemeanour. She said to me that when she first consulted me, she was extremely anxious and not wanting to accept that she had done something wrong. She acknowledged that she was an adult and the student was a fourteen year old girl who was being sexually abused by her stepfather. She said she recommended that she see a Counsellor, and they communicated by text. She acknowledged that communication by Facebook was not within professional boundaries. She said she should have approached the school Counsellor herself.

She now has a six year old child. She feels that she has difficulties in engaging with his friends unless their parents are there. She does not feel comfortable getting close to his friends. She said she knew she had made a mistake. She said that she should have disclosed more initially, but did not because of fear of judgement.

She spoke of the student as being somewhat of a leader in year nine. She described her as feisty, but in her class she was a different student in that she did not demonstrate behavioural disturbance. She described her physically as looking "boyish", and there was nothing specifically feminine about her. She said that the student spoke about sexual relationships with a boy and she fitted in with other girls. Sarah openly admitted she had crossed boundaries.

She would like to work as a tutor in Mathematics and English. She would advertise herself as a qualified Teacher and would abide by the Queensland College of Teachers Code of Conduct. She said her husband is very supportive and he can observe some days her anxiety levels are high. She described not the best relationship with her parents. She said her mother and herself are on speaking terms. Her parents married in 1984 and she was born in 1985. She said her mother favoured her older brother. Her father remarried when she was 13, and interestingly this is around the age of the student with whom she had difficulties.

She said she does not want to work in a classroom situation again. I have not altered her antidepressants, namely Fluoxetine 20mgs in the morning. I feel she should stay on her antidepressant for the longer term as her afore-mentioned clinical depression is under control.

I would be pleased to expand on any of the issues I have raised. I respectfully submit that there has been a significant change in her attitude and acceptance of her wrong doings, and would support renewal of her Blue Card status.

The evidence of Dr Peter Rofe, Psychiatrist

  1. [45]
    Dr Rofe gave evidence at the Tribunal hearing:
    1. (a)
      Dr Rofe provided a second report, and for that purpose the Applicant consulted with him on 19 December 2019, where he engaged with the Applicant for one hour.
    2. (b)
      Dr Rofe has read the Reasons Document and has considered that in the context of his evidence.
    3. (c)
      Dr Rofe agreed with his original critique. During the second attendance, the Applicant was open and frank in her disclosure. She adopted a more mature approach.
    4. (d)
      The Applicant understood why BCS issued her with a negative notice and she indicated that on reflection the decision was fair and reasonable. She could understand the reasons, but she maintains that it is appropriate that she be given a positive notice.
    5. (e)
      On the first occasion that the Applicant consulted with Dr Rofe, she failed to disclose material. In his opinion, that was as a result of omission rather than as a result of being intentionally untruthful.
    6. (f)
      The Applicant told Dr Rofe that the student was a girl of aged 14 at the relevant time and that she had been abused by her stepfather.
    7. (g)
      When asked why the Applicant provided better disclosure at the second consultation, Dr Rofe expressed an opinion that that is a factor of time and a realisation of the impact of losing the applicant’s profession. She has considered the matter introspectively and reflectively and her approach now shows a progression in her maturation process. During the consultation in 2018, the Applicant had intellectualised the process but by 2019, she had worked through the process emotionally and could look at this in a far more mature way.
    8. (h)
      Dr Rofe said that the Applicant was 24 years of age when she was a first year teacher, and she was 33 years of age when she first consulted with him. Dr Rofe said that at some level, the Applicant took on the vulnerability of the 14 year old student. Dr Rofe said that it did seem as if the 14 year old girl had dependency issues upon the Applicant, but it was ‘a two way street’ and it is likely that the Applicant formed a dependency issue on the student. The situation was highly charged because the student had suffered sexual abuse.
    9. (i)
      Dr Rofe did say that the engagement of the 14 year old girl might have been flattering to the Applicant and she may have attached to the Applicant as a parental figure at the time.
    10. (j)
      Dr Rofe discussed risk factors and triggers. Dr Rofe said that where there is a power imbalance, the student is vulnerable. In this case, however, given the current situation and the Applicant’s current circumstances, there does not appear to be any specific risk factors. Everyone is subject to individual vulnerability when in close contact with others. But the Applicant was still young at the time and she may have been immature, even for her age. Now she is married, she has a child and has worked through the process of self-repair through a good marriage.
    11. (k)
      In terms of the severity of the behaviour, Dr Rofe categorised it as factor of immaturity. It was not predatory behaviour on the part of the Applicant.
    12. (l)
      Almost certainly there would have been major personality issues suffered by the student as a result of the abuse at home and the Applicant’s behaviour did exacerbate those issues suffered by the student.
    13. (m)
      Dr Rofe concluded that the insight demonstrated by the Applicant in 2019 was real and was not convenient for the purpose of the hearing.

Letters of support from others

  1. [46]
    The Applicant produced letters of strong support from other witnesses, but they were not available to provide evidence under cross examination, so the Tribunal does attribute less weight to the content.

The Respondent’s submissions

  1. [47]
    The Respondent provided submissions to the Tribunal. The Respondent confirmed that the presumption is for the Applicant to receive a blue card, unless the Tribunal is satisfied that the case is exceptional. The task for the Tribunal is to consider relevant risk and protective factors:

Protective factors

  1. The Respondent submitted that the following protective factors are relevant in this matter:
  1. a)
     the Applicant has studied.
  1. b)
     The Applicant has worked.
  1. c)
     The Applicant is in a stable marriage.
  1. d)
     The Applicant has strong supportive networks.
  1. e)
     The Applicant provided 10 references and all the referees were well informed because they did refer to the disciplinary action.
  1. a.
     All referees support the Applicant obtaining a blue card.
  1. b.
     All say that the Applicant deal can deal [sic] appropriately with children.
  1. f)
     The Applicant has gained insight in that she is now aware that physical contact, in the form of hugging, is inappropriate.
  1. g)
     The Applicant has gained insight in that she now accepts that her actions did have the potential to cause harm and did in fact cause harm to the student.
  1. h)
     It has been some time since the inappropriate behaviours and her acceptance of her behaviours having caused harm is a protective factor.

Risk Factors

  1. The Respondent submitted that the following risk factors are present:
  1. a)
     The inappropriate actions were undertaken while the applicant had a position of responsibility and care for children, as a teacher.
  1. b)
     The Applicant made inappropriate contact with a student.
  1. c)
     The Applicant failed in reporting mandatory obligations.
  1. d)
     The Applicant may need more time to reflect upon her action.
  1. e)
     The Applicant’s inappropriate behaviours demonstrate an inability to understand professional obligations.
  1. f)
     One-on-one tutoring represents a higher risk to children than teaching a class of students.
  1. g)
     The provision of a psychiatric or psychological report is important.
  1. h)
     When Dr Rofe provided his first report he had not considered the Reasons Document.
  1. i)
     Dr Rofe largely does not deal with the issues of concern to the Tribunal and therefore the reports are of limited value.
  1. j)
     Dr Rofe did receive some material but not all relevant material.
  1. k)
     Dr Rofe was not told the full story at first instance.
  1. l)
     Dr Rofe said that the refusal to provide a blue card was fair and reasonable.
  1. m)
     Dr Rofe does accept that most of the maturation process for the Applicant should have occurred by the time of first attendance.
  1. n)
     Dr Rofe accepts that there is vulnerability in these relationships, but he does not appear to have referred to other risk factors.
  1. o)
     The evidence of Dr Rofe does not provide sufficient material to justify a conclusion that the Applicant has gained appropriate insight.
  1. p)
     The ‘need to be needed’ trigger was first identified at the hearing, and there is no evidence to show that that trigger has been addressed.
  1. q)
     There is little to show that the issues of concern to the Tribunal have been addressed by the Applicant.
  1. r)
     At the hearing, the Applicant had difficulty in discussing the issues of concern.
  1. s)
     The Tribunal must adopt a precautionary approach.

Conclusions

  1. The Tribunal should temper the weight afforded to the referees as some of the referees believe that the Applicant could not have done harm to a child, which is inconsistent with the evidence.
  2. The Tribunal should accept that being a first-year teacher is no excuse.
  3. The object, purpose and nature of the decisions enshrined in the Act support a precautionary approach to decision-making on blue card matters. Apart from the inherent impossibility of predicting future risk with certainty, the WWC Act is premised on past behavior being an indicator of future behavior and allows for precautionary action to be taken.
  4. A positive notice is unconditional and fully transferable. The holder of a blue card is allowed unsupervised and unfettered access to children in a range of regulated activities. The Tribunal must consider transferability of notices under the WWC Act when having regard to the best interests of children.
  5. The risk factors identified in the proceedings render the case an exceptional case such that it would not be in the best interests of children and young people for the Applicant to be issued with a positive notice and blue card.
  1. [48]
    The Respondent further submitted that as a protective measure for children, the Tribunal should find that this is an exceptional case, such that it would not be in the best interests of children to issue a positive notice to the Applicant. The Respondent conceded that there are protective factors but submitted that the risk factors outweigh those protective factors.

The Tribunal findings and decision

  1. [49]
    In determining the application, the Tribunal maintains its focus on the best interest of children. This is not a case which involves imposing further punishment upon the Applicant nor is it a case where the Tribunal considers any detriment to the Applicant as a result of determining that the case is exceptional. The Tribunal is concerned about the effect on children as a result of the Applicant potentially having a blue card. The Tribunal must consider whether the Applicant has gained insight. The Tribunal considers the risk factors and the protective factors. The decision of the Tribunal is centred around the interests of children. In making its decision, the Tribunal does consider the WWC Act. The presumption is to find that the application is not exceptional. No party has the onus of proving whether the case is exceptional.
  2. [50]
    Having carefully considered the evidence, the Tribunal is of the view that this is not an exceptional case. The actions of the Applicant in engaging in inappropriate behaviour with a student is not condoned by the Tribunal. That is clear from the QCAT Decision in 2011. The intentions of the Applicant at the time do not diminish the impact on the child. The Applicant did hold a position of trust, responsibility and authority in relation to the student and clearly her behaviour did constitute a breach of the position which she held. However the Tribunal must consider the application based on the evidence as at the date of the hearing. The Tribunal has assessed that the Applicant has gained considerable insight into her actions. She has matured and she accepted a new degree of responsibility, which is reflected through an extensive array of protective factors. The assessment of the Tribunal is that the protective factors are significant.
  3. [51]
    The Tribunal is satisfied that the Applicant accepts that she was viewed by the student as an authority figure and that she did breach legal, ethical and social boundaries that existed to safeguard the teacher and student relationship. The Applicant has demonstrated insight into her actions that led to the disciplinary procedures.
  4. [52]
    The Applicant was not trying to keep her association with the complainant student a secret. The QCAT Decision is 2011 determined that the Applicant spoke with her principal, a part-time guidance officer and a flatmate about her association with the complainant student.
  5. [53]
    The Applicant did raise her concerns about the welfare of the complainant student with a person in authority in 2009, namely her then-principal. This is confirmed in the QCAT decision in 2011 as follows:

The school principal confirms that Ms Rudd spoke with him about her concerns for the complainant student on several occasions while the student attended the school. He confirms that he thought it was important for the lines of communication to be open, given the student’s approaches to the teacher, in light of her vulnerability.[25]

  1. [54]
    The Applicant did speak with a part-time guidance officer about her interactions with the complainant student. The Applicant failed to heed the advice of the guidance officer who told her to take care about the interactions and to be aware of the limits on what she could do.[26] The Applicant did speak with a former flatmate about establishing a legal relationship between herself and the complainant student.[27]
  1. [55]
    By twice hugging the student, the Applicant did engage in inappropriate contact which is a breach of the Code of Conduct. However, the view of the Tribunal is that the Applicant has gained insight into the behaviour.
  2. [56]
    The Applicant did minimise her behaviour during interviews with QCT when the matters were first investigated, and she also did minimise her behaviour during the first interview with psychiatrist Dr Rofe. However, the Tribunal is satisfied that she has been honest and forthright in her frank and honest conversation with Dr Rofe during the second interview. The Tribunal does accept the findings of Dr Rofe in his reports.
  3. [57]
    The period of nine months was considered by QCT and QCAT as an appropriate period of suspension for the behaviour alleged. That provides some indication as to what might be regarded as a minimum period before one would reasonably assume that there were prospects the Applicant could gain insight into her actions. A period of 11 years has now passed, and that provides the Tribunal with comfort in its determination in relation to this case. During that time, the Applicant has gained insight, and modified her behaviours. The Applicant has now gained insight into the level of responsibility conferred upon her, sufficient to enable her to work with children and to act in a manner expected of a person entrusted with the care and well-being of children and young people.
  4. [58]
    A significant time has elapsed since the inappropriate conduct in 2009 and there has not been any suggestion of further inappropriate conduct since that time. Since 2009, the Applicant has gained insight into the inappropriate nature of her behaviours and the Tribunal assesses that there is not a realistic concern of a repeat occurrence in the future.
  5. [59]
    The Tribunal does not regard the fact that the Applicant was a first year teacher at the time of the inappropriate behaviour, and had not received formal code of conduct training, as an excuse. But now as a mature woman, with the benefit of life experience and more information about appropriate behaviours and conduct, the Tribunal has formed the view that she would now be careful, considerate, and respectful in her engagement with children. The Tribunal is of the view that she is not a person who is at greater risk than members of the community generally to (once again) breach appropriate standards of behaviour within the context of relationships between adults and children.
  6. [60]
    The report provided by Dr Rofe, psychiatrist, in support of the Applicant is significant. The Tribunal does note that Dr Rofe is supportive of the Applicant’s eligibility to hold a blue card. Dr Rofe made a clear professional assessment, which was not rebutted by any contrary professional opinion, through the following statement:

There is [sic] no clear reasons why she [the Applicant] should not be granted a blue card.

  1. [61]
    In coming to its conclusion, the Tribunal does adopt a precautionary approach to decision-making on blue card matters. In this case, the Applicant’s behaviour in 2009 is not a reliable indicator of future behaviour. What the Applicant has done with her life since then serves as a more reliable indicator of future behaviours.
  2. [62]
    In determining that this is not an exceptional case, the Tribunal does take account of the considerations prescribed by section 228 of the WWC Act and other matters as identified in this decision. The Tribunal considers its decision from the perspective that the welfare and best interests of children is paramount. Every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. In making decisions of this type, the Tribunal does consider the risk to children.
  3. [63]
    The Tribunal acknowledges that a blue card is fully transferable.

Publication

  1. [64]
    The Tribunal may make an order prohibiting the publication of the following:
    1. (a)
      the contents of a document or other thing produced to the Tribunal;
    2. (b)
      evidence given before the Tribunal;
    3. (c)
      information that may enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified.[28]
  1. [65]
    The Tribunal may make such an order only if the Tribunal considers the order is necessary:
    1. (a)
      to avoid interfering with the proper administration of justice; or
    2. (b)
      to avoid endangering the physical or mental health or safety of a person; or
    3. (c)
      to avoid offending public decency or morality; or
    4. (d)
      to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
    5. (e)
      for any other reason in the interests of justice.[29]
  2. [66]
    The presumption is that the identity of the Applicant and witnesses is available in the public sphere. However, the Tribunal is of the view that publication of the name of the student or any other student, their schools or their other personal information would be contrary to the public interest.

Orders

  1. [67]
    The orders are as follows:
  1. The decision of the Director-General, Department of Justice and Attorney-General that the Applicant's case is ‘exceptional’ within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case.
  2. Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal prohibits the publication of the name of the complainant student or any other student, their schools or their other personal information.
  3. The decision of the Tribunal is to be delivered to the parties by email.

Footnotes

[1]  Letter from Queensland College of Teachers to Blue Card Services dated 1 August 2018 [DCS-17]. Ground (b) related to the provision of phone credit, which was later established by the Queensland Civil and Administrative Tribunal as unfounded in Queensland College of Teachers v Rudd [2011] QCAT 367, [23].

[2]Education (Queensland College of Teachers) Act 2005 (Qld), s 7(2).

[3]  Ibid, s 7(3).

[4]  Adopting the approach identified by Blue Card Services (‘BCS’) in its reasons for the decision (‘the Reasons Document’) 7 [6.1].

[5]Queensland College of Teachers v Rudd [2011] QCAT 367.

[6]Working with Children (Risk Management and Screening Act) 2000 (Qld) (‘the WWC Act’), s 220 provides that a notice declaring the application is refused is a ‘negative notice’.

[7]  BCS 51-52.

[8]  WWC Act, s 5.

[9]WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190, [17].

[10]Education (Queensland College of Teachers) Act 2005 (Qld), s 12(3).

[11]  WWC Act, s 221.

[12]  Reasons Document, 7 [6.1].

[13]  Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2).

[14]  The Tribunal is said to 'step into the shoes' of the original decision-maker.

[15]  Ms Michelle Howard, Presiding Member, Professor A Ashman, Member and Ms Robyn Oliver, Member.

[16]  Reasons Document, 7 [6.3].

[17]  Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

[18]  Reasons Document [BCS-4].

[19]  Reasons Document [BCS-4-5].

[20]  Reasons Document [BCS-5].

[21]  Reasons Document [BCS-5-6].

[22]  Reasons Document [BCS-6].

[23]  Reasons Document [BCS-6-7].

[24]  The Applicant was suspended, but there is no evidence to suggest that she has ever attempted to seek reregistration as a teacher

[25]  Queensland College of Teachers v Rudd [2011] QCAT 367, [11].

[26]  Ibid, [12].

[27]  Ibid, [20].

[28]  Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(1).

[29]  Ibid, s 66(2).

Close

Editorial Notes

  • Published Case Name:

    Beresford v Director-General, Department of Justice and Attorney-General

  • Shortened Case Name:

    Beresford v Director-General, Department of Justice and Attorney-General

  • MNC:

    [2020] QCAT 114

  • Court:

    QCAT

  • Judge(s):

    Member Milburn

  • Date:

    22 Apr 2020

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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