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- Queensland College of Teachers v DTJ[2015] QCAT 443
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Queensland College of Teachers v DTJ[2015] QCAT 443
Queensland College of Teachers v DTJ[2015] QCAT 443
CITATION: | Queensland College of Teachers v DTJ [2015] QCAT 443 | |
PARTIES: | Queensland College of Teachers (Applicant) v DTJ (Respondent) | |
APPLICATION NUMBER: | OCR020-15 | |
MATTER TYPE: | Occupational regulation matters | |
HEARING DATE: | 13 October 2015 | |
HEARD AT: | Brisbane | |
DECISION OF: | Member Hughes Member MacDonald Member Quinlivan | |
DELIVERED ON: | 13 November 2015 | |
DELIVERED AT: | Brisbane | |
ORDERS MADE: |
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CATCHWORDS: | DISCIPLINARY PROCEEDINGS – TEACHERS – whether suitable to teach – where teacher previously subject to disciplinary proceedings – where teacher subject to current suspension – where former teacher and former student – where intimate relationship with former students | |
APPEARANCES: | ||
APPLICANT: | Queensland College of Teachers | |
RESPONDENT: | DTJ |
REASONS FOR DECISION
Should the Tribunal order non-publication?
- [1]The QCT does not oppose DTJ’s application for non-publication, but strictly on the issue of identification of the current partner of the applicant who is a former student. The QCT also acknowledges that any publication relating to any earlier decision of the Tribunal involving DTJ may also lead to the identification of the former students. In these circumstances, the Tribunal prohibits the publication of any information in these proceedings that could identify the former students in any way, including the names of the teacher and former students.[1]
- [2]The Tribunal has therefore published these reasons in a de-identifying format.
What is this application about?
- [3]Both the Queensland College of Teachers and DTJ agree that he is not suitable to teach because of his conduct.
- [4]Between 2010 and 2011, while he was a registered teacher, he inappropriately communicated with a student using various multimedia applications. The communication was not for an educational purpose.
- [5]Between 2012 and continuing into 2014, as a former approved teacher, he commenced an intimate relationship with a former student from the same high school as the previous student. Both students were friends while they were at the high school. At differing times during this period, DTJ engaged in an intimate relationship with each former student.
- [6]In 2011, DTJ’s teacher registration was suspended pursuant to section 49 of the Education (Queensland College of Teachers) Act 2005. The Tribunal subsequently cancelled his registration and prohibited him from reapplying for registration for three years from the date of suspension.
Background
- [7]The following table outlines the sequence of events:
7 May 2009 | DTJ was provisionally registered as a teacher |
Early 2010 | DTJ taught at the relevant High School |
12 May 2010 | DTJ first emailed student CL without an educational purpose |
23 August 2010 | DTJ emailed the CL advising that he only wanted to be friends |
August 2010 – November 2010 | DTJ became known to a Year 12 female student that led to an intimate relationship (first disciplinary proceeding) |
9 April 2011 | DTJ emailed CL advising that he hoped to meet up with her in the holidays |
5 July 2011 | DTJ’s registration was suspended pursuant to section 49 of the Act |
28 October 2011 | QCAT decision cancelling DTJ’s registration |
Early 2012 | DTJ commenced an intimate relationship with CL |
November 2012 | Students CL and HK graduated from High School |
December 2012 | The intimate relationship between DTJ and CL ended |
December 2012 | DTJ commenced a relationship with former student HK |
January 2013 | The relationship between DTJ and KH became intimate and is ongoing |
Is there a ground for disciplinary action?
- [8]What are the circumstances of this disciplinary action?
- [9]Between January 2010 and October 2011 while teaching at a state high school, DTJ inappropriately communicated with a student via mobile phone messages and over the Internet using Internet sites. The communication had no educational purpose.
- [10]Further, from about December 2012 and continuing into 2014, he commenced an intimate relationship with a different former student from the same state high school who had graduated from that school in 2012. This student was a friend of the other student, while they were at the school.
- [11]Between October 2013 and July 2014, the QCT undertook a disciplinary investigation pursuant to section 173(2)(a) of the Act. The investigator concluded that the evidence showed that the only questionable conduct of the teacher while he was a registered teacher was his communication with the student by multi-media. The first student indicated that in 2010/2011 she communicated with DTJ probably once a week. There is no evidence that the communication was sexual in nature.
- [12]During their communication, DTJ asked the student to meet him on one occasion, but she refused. At some point in 2010-2011, the student concluded that they were in a relationship. DTJ and the student never met in person while he was a teacher.
- [13]The first student stated that it was only after DTJ was no longer a registered teacher that a sexual relationship commenced between them. The relationship continued throughout 2012.
- [14]The second student stated that she was not in any relationship with the teacher until December 2012. This was approximately 15 months after the Tribunal cancelled his registration. Therefore, the investigator concluded that QCT does not hold any evidence to support a relationship existing between DTJ and the student while he was a registered teacher.
- [15]On that basis only one allegation was derived from the information obtained as follows:
That whilst a registered teacher… at a state high school… between 27 January 2010 and 28 October 2011 (he) communicated with a student via message on mobile phone and over the Internet… this communication was devoid of any educational context.
- [16]Section 161(2) of the Act provides that if the “relevant teacher” is a former approved teacher, the Tribunal may, if it would have made an order cancelling the teacher’s registration or permission to teach if the teacher had been an approved teacher – make an order prohibiting the teacher from reapplying for registration or permission to teach for a stated period from the day the order is made or indefinitely.
- [17]DTJ admitted that he behaved in a way that does not satisfy a standard of behaviour generally expected of a teacher. He accepted most allegations, with the exception of the use of a webcam as a mode of communication. He said that he would accept and not contest any disciplinary action.
- [18]The first student attended the school from 2008 – 2012. In 2010, DTJ attended the school as a relief teacher. The student initiated contact with him through emails without an educational purpose.
- [19]In 2010 and 2011, DTJ engaged in personal conversations with the female student and used other forms of social media to communicate with the student.
- [20]In 2012, following the cancellation of his registration in 2011, the teacher took the first student on a date and subsequently had an intimate relationship with her that ended towards the end of that year.
- [21]At around that time, DTJ took the second student on a date and commenced an intimate relationship that continues. The student had graduated from the school in 2012. Both students were close friends throughout their schooling.
- [22]DTJ says that he sincerely regrets his actions, which occurred at a very difficult time in his life and he sincerely apologized for his disservice to the teaching profession. He also said that he will not contest any outcome of disciplinary proceedings and indicated to the QCT that he is not averse to indefinite exclusion from registration.
- [23]DTJ stated that he will “go on record as declaring that I will not re-apply, nor do I have a desire to re-apply for my teaching accreditation in Queensland or elsewhere”.
What admitted facts establish the ground for disciplinary action?
- [24]The QCT submits that DTJ is a “relevant teacher” under the provisions of section 92 of the EQCT Act[2]. He was a registered teacher between 7 May 2009 and 28 October 2011 as demonstrated by the evidentiary certificate. Although DTJ’s registration was suspended on 5 July 2011, he was still registered until his cancellation.
- [25]The ground for disciplinary action can only be founded upon conduct by DTJ that occurred between 7 May 2009 and 28 October 2011. The Tribunal cannot consider any conduct falling outside of those dates in assessing whether the ground for disciplinary action has been established.
- [26]Just as factors of mitigation might persuade the Tribunal that the degree of risk that a teacher poses to the public has decreased, factors of aggravation are relevant considerations for the Tribunal to consider in determining the appropriate sanction. The QCT points out that in other decisions the Tribunal has acknowledged that its role is to consider whether a teacher is presently not suitable to teach.[3]
Has a ground for disciplinary action been established?
- [27]In proceedings involving the determination of a disciplinary matter the standard of proof is on the balance of probabilities according to the gravity of the fact to be proved.[4]
- [28]DTJ accepted all the allegations made against him, with the exception of the use of a Webcam as a mode of communication. He made no submissions in relation to the relevant findings and likely sanctions, other than to indicate that he would not contest any outcome of any disciplinary proceedings and confirm that he is not averse to indefinite exclusion from registration.
- [29]DTJ breached his professional duty to maintain professional boundaries.
- [30]The Tribunal therefore accepts the establishment of a ground for disciplinary action and finds that the relationship between the teacher and the first student commenced in the classroom and then continued online through private emails. The power imbalance between the teacher and the student continued even though he was no longer the student’s classroom teacher and continued after his registration was cancelled.
- [31]The correspondence between DTJ and the student was wrong because it was likely to lead to an inappropriate intimate relationship, where he might take advantage of the power balance to the detriment of the student. These communications had the capacity to compromise his professional standing as a teacher and betray the trust and power granted to him. The community expects a teacher to have sufficient insight to know that this conduct can harm young people.
What is the appropriate sanction?
- [32]In its submissions, the QCT referred the Tribunal to the provisions of s 161(2) of the EQCT Act. It also referred to the matter of principle outlined by Justice Fryberg regarding the assessment of sanction orders in professional disciplinary proceedings:
It is trite law that the purpose of the disciplinary jurisdiction is the protection of the public. As the Tribunal has observed in a number of cases, there are a number of aspects to this. In some cases, protection may be achieved by erasing the practitioner’s name from the register. In others, the deterrent effect of disciplinary punishment, coupled with the knowledge of the stress, cost and publicity associated with disciplinary proceedings, may be enough to satisfy the Tribunal that there is little risk to the public from the practitioner. The existence of genuine remorse is a factor which may assist the Tribunal in reaching a conclusion that the practitioner poses little danger to the public. The Tribunal must also consider the issue of general deterrence. The order which the Tribunal makes must be such as to deter other members of the profession who might be minded to behave in a similar way. It must also be calculated to maintain public confidence in the profession and in the system of disciplinary administration.[5]
- [33]The QCT has referred the Tribunal to similar cases. The attached schedule summarizes those cases and other cases identified by the Tribunal as offering some guidance.
- [34]In particular, the QCT referred to the decision in QCT v Pau[6] where the teacher engaged in inappropriate communication with a student by providing the student with a printed copy of an email that he had written. The QCT submitted that Mr Pau exhibited significant insight into his misconduct and had developed strategies to avoid repeating it. He admitted to it early and expressed remorse. As his registration had already lapsed, the Tribunal imposed a prohibition period of one year from the date of hearing, with a notation that any application for re-registration was to be accompanied by a report from a psychologist.
- [35]The QCT also referred to the decision in QCT v Banyai[7], where the teacher communicated through Facebook with female students from a school where he used to teach. The students were 14-15 year of age at the time and the communication was inappropriate because it was overly familiar and sexual in nature. The teacher did not chastise one particular student for inappropriate statements made. The teacher also made references to a “threesome”.
- [36]The teacher admitted to the communication and agreed that it was misconduct. There was no material before the Tribunal about the teacher undertaking counselling or further professional development to address the circumstances of the inappropriate conduct. The Tribunal imposed cancellation with a prohibition period of 12 months with a notation about providing a psychologist report with any application for re-registration.
- [37]In QCT v Chambers[8], the teacher communicated over the school holidays with a student through Facebook. The teacher exchanged a significant number of messages about deeply personal matters. They arranged to meet. The teacher picked the student up in his vehicle and took her to his home without parental consent. The teacher failed to report that he suspected that the student had been sexually abused. When confronted with the allegations the teacher made admissions and co-operated with the investigation.
- [38]The teacher submitted that he did not attempt to gain anything, but had committed the misconduct in the misguided belief that it was for the student’s benefit. The teacher had been cautioned previously about another minor matter. The Tribunal cancelled his registration, but only imposed a 3-month prohibition period, noting that the teacher had been out of work for 14 months leading to the date of the order.
- [39]In QCT v Teacher VK,[9] the Tribunal accepted the QCT submission that the teacher’s conduct involved ‘‘… serious, multi-faceted, concurrent and protracted departures from the standards expected of teachers to such a high degree that considerations of denunciation and deterrence are strongly enlivened”. The Tribunal considers that this is not the case in this matter.
- [40]The Tribunal is satisfied that the present circumstances can be distinguished from QCT v BJH,[10] because there were no post registration issues in that case and the current misconduct is not as serious.
- [41]This present case is unusual in that DTJ has already had his registration cancelled and if the Tribunal allows his application for a non-publication order, publicity will be minimised. The QCT does not oppose his application for non-publication but only on a very specific basis.
- [42]As a result, the QCT submits that the factors that are relevant in this matter are general deterrence, the maintenance of public confidence in the profession and public confidence in the system of disciplinary administration.
- [43]The QCT contends that the mitigating factors in DTJ’s favour include admitting his conduct at the earliest possible time and participating in the investigation and providing emails between himself and the student to the investigator.
- [44]Aggravating factors include that he entered into an intimate relationship with a student who was in year 12 at the time. He commenced a relationship with the student’s friend shortly after the friend graduated from high school around the same time.
- [45]The QCT submits that even if some of DTJ’s behaviour occurred after his registration was cancelled, it is wholly inconsistent with someone who in the near future could be considered suitable to teach.
- [46]The QCT argues that taking DTJ as he is today and giving weight to the other authorities, DTJ should be prohibited from reapplying for registration for a further 12 months from the date of the order.
What is the appropriate sanction?
- [47]The Tribunal is satisfied that DTJ’s conduct is wholly inconsistent with the behaviour expected of a teacher.
- [48]As noted above, the QCT submits that he should be prohibited from reapplying for registration for a further 12 months from the date of the order pursuant to section 161(2)(c) of the EQCT Act. The QCT also suggests appropriate notations on the register should DTJ seek re-registration in the future.
- [49]The Tribunal is particularly concerned that following his suspension and subsequent cancellation, DTJ continued to engage in behaviour that was inappropriate. The Tribunal notes that DTJ engaged in the present conduct shortly after the Tribunal cancelled his registration or permission to teach. He therefore showed no insight or remorse in relation to his behaviour.
- [50]The Tribunal has taken into account that DTJ co-operated fully with the investigation into his behaviour and his willingness to accept all allegations and any potential decision. The Tribunal has noted that there has been a passage of time since the conduct and he has remained committed to his current relationship, including supporting and caring for his partner and family during a potentially fatal illness.
- [51]In all the circumstances, the Tribunal orders the cancellation of DTJ’s teacher registration and prohibition from seeking registration and permission to teach, for a period of 12 months to reflect the seriousness of his behaviour. The Tribunal also imposes conditions on any future applications for registration by DTJ.
- [52]The appropriate Orders are therefore:
- DTJ is prohibited from applying for registration or permission to teach for 12 months from the date of this Order;
- The Register is to be endorsed with a notation that any application from DTJ for reregistration must be accompanied by an independent psychologist report that includes assessment of his appreciation of the following:
- (a)Differentiating between personal and professional relationships;
- (b)The legal obligations of teachers;
- (c)Development and maintenance of professional standards when working with young people and actively determining and implementing professional boundaries with individual students;
- (d)Risk assessment and the early issue identification of potentially problematic situations and venues as well as initiating realistic solutions for avoiding the risk of harm to students;
- (e)The extent and nature of the student, colleague, parental and community trust inherently invested in a teacher;
- (f)Personal and professional behaviour that would compromise the professional standing of a teacher and the profession of teaching;
- (g)What constitutes inappropriate communication;
- (h)Understanding of the effects of inappropriate relationships with students;
- (i)The trust and power granted to a teacher;
- (j)Understanding all of and importance all for adherence to the Queensland College of Teachers’ Code of Ethics; and
- The psychological report must include:
- (a)An indication by the psychologist about whether the psychologist is satisfied that DTJ has adequately understood and addressed the above points; and
- (b)Confirmation of the psychologist being provided with a copy of this decision.
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| Schedule
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Case name and citation | Details of Teacher | Details of student/s | Other relevant factors | Penalty? | Publication? |
| Male – 58yo. Reg’d Dec 1996, expired May 2010. | Various students | Sexual relationship after student left school Proceedings in Magistrates Court. | Prohibited from applying for reg’n or permission to teach for 4 years. Reg’d psychologist report required. | No comment |
| Male – 39yo. First reg’d 1999, not renewed in May 2010 | Female – aged 17yo | Inappropriate communication with a student | Reg’n cancelled. Prohibited from applying for reg’n or permission to teach for 1 year. Reg’d psychologist report required. | No comment |
| Female – 26yo. Reg’d Feb 2006 – currently approved teacher. | Male – aged 15 | Sexual intercourse – teacher denies allegations. Police investigated – no charges laid. | Reg’n cancelled – prevented from re-applying for a period of 5 years | No comment |
| Female – Reg’d Jan 2009, suspended Sept 2010. | Female – limited details. | Plan for relationship after student left school – sexual intimacy occurred - failed to report self-harming by student. | Reg’n cancelled – prohibited from re-applying for a period of 3 years. Reg’d psychologist report required. | No comment
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| Female – First year teacher in 2009. Registration suspended in June 2010 and expired March 2011. | Female - Year 9. | Student vulnerable. Teacher not given DET Code of Conduct training until end of 2009 before training received. Offer to become student’s guardian. | Period of suspension adequate. Reg’d psychologist report required for any application for re-registration. | Prohibition on publishing names of complainant, other students and school. |
| Female – 33yo. Reg’d to teach Feb 2002, name removed from register at her request Feb 2010 | Female –After graduation at the time of relationship | Engaged in special relationship and engaged in a physical or sexual relationship with former student | Prohibited from applying to teach for 5 years. Reg’d psychologist report required. Distinguished from Grasso and compared to Walters and Borchardt | Prohibition on publishing names of complainant, address and school |
| Male - Reg’d Sept 1980 to April 2011. Suspended June 2010, lapsed April 2011. | Female – aged between 15-17 | No criminal complaint “father-figure” Consensual sexual contact over 2 yr period. No mitigating factors | Maximum period - Prohibited from seeking reg’n or permission to teach for 5 years | De-identified |
| Male – 45yo. Registered from Aug 1990 – April 2009. | Various students from grade 9 – 12 over a number of years | Maintained relationship after grade 12 student left school – engaged in sexual relationship. History of conduct from 2000. | Disqualification for 4 years by agreement. Co-operated with process, made admissions, surrendered reg’n | De-identified |
| Male – reg’n not suspended. Experienced teacher (8 years) | Female – 12yo former student | Overly familiar relationship, failure to report suspected harm. | Reg’n cancelled. Prohibited from re-applying until 14 Dec 2012 ( effectively 3 mths) Reg’d psychologist report required. | Prohibition on publishing names of schools and students. |
| Male – 44yo. First reg’d in Jan 1991. | Female students x2 | Over familiar and/or sexually suggestive behavior. Stronger sanction than submitted jointly by parties. Leadership | Reg’n cancelled for 12 mths. Reg’d psychologist report required before reinstating teacher’s registration.. | Prohibition on publishing names of teacher, his wife and brother and students and their addresses and teacher’s and student’s current schools. |
| Male - 31yo. Registered Dec 2006 Contract teacher since 2007 in various schools. | Females - 14-15yo | Employment terminated – inappropriate communication with students. Prior to conduct teacher completed Code of Conduct training | Reg’n cancelled. Prohibited from re-applying until 5 Dec 2012 ( effectively 12 mths) Reg’d psychologist report required. |
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| Female – Late 30s at the time. Registered from start of 2008, suspended Nov 2013 | A female and various male students. | Conduct between April 2010 and Dec 2011. Engaged in sexual intercourse with a number of former students. | Reg’n cancelled. Prohibited from re-applying until Nov 2018 ( effectively 5 years) Reg’d psychologist report required. | De-identified |
| Male – Registered Dec 2008 at age 31 and suspended in July 2014 | Female - grade 11, aged 16yo | Sexual relationship with vulnerable student in 2013. Prior to 2013 completed Code of Conduct and Student Protection training. Teacher 36 at time. Both had been subject to prior sexual abuse. | Reg’n cancelled. Prohibited from seeking reg’n or permission to teach for 6 years. Independent psychologist report required. | De-identified |
| Male – 34yo at time, first registered as a teacher on 21 December 2006 Undertook Code of Conduct and student protection training in May 2010 | Female students aged between 14-15 | Between 25 Jan 2007 and 18 Jan 2011 the teacher engaged in inappropriate social media contact, sexual contact at school and a sexual relationship after a student left school. | Registration cancelled by previous Tribunal in April 2013. Prohibited from re-applying until 5 Dec 2018. Reg’d psychologist report required. | Prohibition on publishing names of teacher, school and the complainants. |
| Male – criminal allegations approximately 26 years ago | Male complainants aged between 10-12 at the time. | Charges included carnal knowledge, indecent dealing and administering stupefying drug – 2 charges dismissed and 2 nolle prosequi. | Reg’n suspended – Applicant not currently reg’d as teacher. Undertaking to never again apply for Reg’n and consent for information to be disclosed | Prohibition on publishing names of schools and students. |
Decision of QCT v. Bruce William Walters OCR 152-10 – Penalty 5yrs. – case involved a romantic relationship which developed while the student was at school followed by a sexual relationship developing very shortly after the student finished school. Unreported.
Footnotes
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66.
[2]Education (Queensland College of Teachers) Act 2005 (Qld) s 92.
[3]QCT v Teacher VK [2011] QCAT 268 at [19].
[4]Briginshaw v Briginshaw [1938] HCA 34.
[5]Medical Board of Queensland v Martin [1998] QMAT 001.
[6][2010] QCAT 493.
[7][2013] QCAT 180.
[8][2012] QCAT 491.
[9][2015] QCAT 356.
[10][2015] QCAT 356.