Queensland College of Teachers v WAS
[2015] QCAT 61
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- Unreported Judgment
- Queensland College of Teachers v WAS[2015] QCAT 61
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Queensland College of Teachers v WAS[2015] QCAT 61
Queensland College of Teachers v WAS[2015] QCAT 61
CITATION: | Queensland College of Teachers v WAS [2015] QCAT 61 |
PARTIES: | Queensland College of Teachers (Applicant) |
| v |
| WAS (Respondent) |
APPLICATION NUMBER: | OCR157-14 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 19 February 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Acting Senior Member Howard, Presiding Member Member Grigg Member Kanowski |
DELIVERED ON: | 25 February 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
4. a. WAS is to pay the costs of the Queensland College of Teachers up to the maximum amount of $2,500. b. This amount is to be paid in instalments as may be agreed between WAS and the College or, failing agreement, in full by 28 February 2016. |
CATCHWORDS: | Teacher not suitable to teach – sexual relationship with vulnerable student – costs sanction Education (Queensland College of Teachers) Act 2005 (Qld), s 92(1)(h), s 160(2)(f) |
APPEARANCES:
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).
REASONS FOR DECISION
Introduction
- [1]WAS is a registered teacher. His registration, however, has been suspended since July 2014. The Queensland College of Teachers suspended WAS registration after becoming aware that he had engaged in a sexual relationship with a student in 2013.
- [2]The College has referred the matter to QCAT for a determination to be made about whether a disciplinary ground exists, namely whether WAS is not suitable to teach. QCAT is a disciplinary body under Chapter 6 of the Education (Queensland College of Teachers) Act 2005 (Qld) (the EQCT Act).
- [3]The parties have provided written submissions, with WAS submissions being made through his representative, TressCox Lawyers.
Non-publication orders
- [4]Orders were made on 22 July 2014 and 18 November 2014 under s 66 of the QCAT Act prohibiting publication of details such as the names and identifying particulars of the students, the teacher and schools involved in this matter. We note that those orders remain in force.
Agreed facts
- [5]The following matters are not in dispute, and we find that they occurred.
- [6]WAS became registered as a teacher in December 2008, when he was 31 years of age. He taught at Queensland high schools between January 2010 and June 2014. Prior to 2013 he completed Code of Conduct and Student Protection training.
- [7]In 2013 WAS taught at the school attended by the student in question. The student turned 16 in July 2013. She was in year 11. WAS turned 36 in September 2013. The student was not in any of WAS classes, though on one occasion he was a relief teacher in one of her classes.
- [8]At some point in 2013 WAS and the student had a conversation in which they each disclosed that they had been sexually abused by relatives as children. WAS and the student then went on, over a period of approximately three months up to November 2013, to develop a close relationship that became romantic and ultimately sexual.
- [9]In August WAS gave the student a bracelet. In September he gave her a teddy bear. He established a Facebook account under an assumed name so that he and the student could communicate without using his real name. They exchanged more than 10,000 Facebook messages, at various times of the day and night. A good deal of the communication had romantic or sexual themes. The teacher visited the student at her home a number of times, when nobody else was there. The teacher and the student ended up having sexual intercourse in the student’s bedroom on at least three occasions from late September.
- [10]WAS and the student also met up at a shopping centre. He went to her workplace on one occasion. They met at a park where they talked and sometimes hugged and kissed. They found opportunities to talk at school. WAS shared personal information about himself with the student. He gave her his mobile phone number and his non-school email address. When he was away on holidays he sent the student a bunch of roses, using the assumed name. He also brought back a gift for her. WAS had discussions with the student about staff, students and classes at the school. He offered to assist her with school work. He also offered to obtain a copy of old English assignments that she could use.
- [11]This intense phase of the relationship came to an abrupt halt when WAS’ wife discovered the Facebook exchanges on a phone used by WAS. She sent a message to the student demanding that the relationship cease.
- [12]This was not quite the end of the contact however, even though WAS transferred to another school after the 2013 school year. WAS and the student met so that she could return the bracelet and other items. On Christmas Day in 2013 he sent her romantic messages. In February 2014 he dropped the bracelet in the student’s letter box with a note expressing his love.
Issues
- [13]The issues we must decide are:
- Is a ground for disciplinary action established?
- If so, what disciplinary action should be taken?
Is a ground for disciplinary action established?
- [14]A ground for disciplinary action is that a teacher is not suitable to teach.[1] It is relevant to consider whether the person is suitable to work in a child-related field.[2] A person who behaves in a way that does not satisfy a standard of behaviour generally expected of a teacher is not suitable to teach.[3]
- [15]It is undisputed, and we find, that WAS behaved in ways that do not satisfy standards of behaviour reasonably expected of a teacher, and that he is not suitable to teach. WAS failed to maintain professional boundaries with the student in question. When she disclosed to him that she had been sexually abused, he failed to report this to an appropriate person such as the school Principal. Instead he took advantage of a student who was vulnerable because of her prior sexual abuse. He exploited the trust the student placed in him, embarking on a course of conduct designed to seduce her. He gave her preferential treatment. He engaged in a close, intense and intimate relationship with the student.
- [16]The community entrusts teachers with the care of young people for the purpose of education. It is a serious breach of trust for a teacher to take advantage of that role for sexual gratification. We find that a ground for disciplinary action against WAS is established, namely, that he is not suitable to teach.
What disciplinary action should be taken?
- [17]The purpose of disciplinary action is not to punish a teacher. Instead, it is to further the objects of the EQCT Act. These include upholding the standards of the teaching profession, maintaining public confidence in the profession, and protecting the public by ensuring that education is provided in a professional way.[4] Although punishment is not the aim, deterrence is a relevant consideration: the sanction imposed must provide ‘general deterrence to the members of the teaching profession and specific deterrence to further irresponsible conduct by the teacher in question’.[5]
- [18]It is undisputed that WAS’ conduct was serious and that disciplinary action is required. Various sanctions are available under s 160(2) of the EQCT Act. These include cancelling registration, prohibiting reapplication for registration for a stated period or indefinitely, requiring a notation on the register, and requiring the teacher to pay an amount to the College for its costs of investigating the matter and bringing the proceedings in QCAT.
- [19]The College submits that we should cancel WAS’ registration, prohibit him from reapplying for registration for ten years, and require a notation on the register that WAS produce a satisfactory psychological report as a pre-condition to re-registration. The College also submits that we should require WAS to pay its costs of bringing the proceeding, in an amount to be agreed or determined by a costs assessor using the District Court scale. The College does not seek a contribution toward its investigation costs.
- [20]WAS submits that cancellation, a period of prohibition, and the proposed notation are appropriate. However, he submits that the period of prohibition should be six years rather than ten. He also opposes a costs sanction.
- [21]We agree that cancellation, a period of prohibition, and a notation are appropriate. We also consider that a costs sanction is appropriate.
- [22]The parties have suggested an agreed wording of the notation. We think it is generally suitable except for a slight inconsistency: it mostly refers to a psychologist conducting the assessment but at one point it refers to a psychiatrist instead. We believe that the assessment could be properly conducted by either a psychologist or a psychiatrist. We will adopt the substance of the suggested wording but permit the assessment and report to be conducted by either a psychologist or a psychiatrist.
- [23]We will discuss below the two contentious matters.
Costs sanction
- [24]QCAT can make an order requiring a teacher to pay to the College, by way of sanction, an amount QCAT considers appropriate having regard to (relevantly) the expenses incurred by the College in the proceedings before QCAT.[6] This provision displaces the usual expectation that each party is to bear their own costs in a QCAT proceeding.[7]
- [25]WAS argues that s 102 of the QCAT Act applies. That section enables QCAT to make a costs order if the interests of justice so require. QCAT must, under s 102, have regard to a number of factors including whether a party has acted in a way that unnecessarily disadvantages another party, and the financial circumstances of the parties. We do not accept the submission that s 102 applies. It is located in the part of the QCAT Act that governs the making of costs orders in a proceeding. It does not expressly, or by necessary implication, qualify the power in the EQCT Act to impose a costs sanction in a disciplinary proceeding. Nonetheless, factors such as conduct and financial position remain relevant because QCAT is required in all proceedings to act fairly and according to the substantial merits of the case.[8]
- [26]WAS argues that a costs sanction should not be imposed because he has fully cooperated in the investigation and the QCAT proceeding and because of his lack of financial resources.
- [27]The College acknowledges that WAS has cooperated in the disciplinary process and ‘made early and frank admissions to the disciplinary allegations’.[9] In the QCAT proceeding WAS signed a comprehensive statement of agreed matters, and agreed to a hearing on the papers. These actions have enabled the matter to proceed in a timely and cost-effective way. In an affidavit in October 2014 WAS said he and his wife were unemployed and their savings were almost exhausted. They had few assets and were in the process of seeking Centrelink benefits. We accept this evidence.
- [28]The College acknowledges that WAS cooperation in the proceeding has helped curtail costs, but submits that this is not a factor that ‘should be granted much weight on whether to award costs’.[10] We accept this submission: the curtailment of costs inevitably reduces the amount that may be ordered, but does not itself weigh heavily against imposing a costs sanction.
- [29]The College also submits that WAS impecuniosity should not stand in the way of a costs sanction because the College would have a discretion not to enforce the order. However, we believe that this approach would effectively delegate our responsibility to impose an appropriate sanction.
- [30]The College urges us to take into account that the referral to QCAT was mandatory,[11] and that the College is wholly funded through the mandatory payment of registration fees by teachers. We see force in this submission. The proceeding has come about because of WAS improper behaviour as a teacher. It is unfair to expect the cost of disciplining him to be borne by teachers generally, the vast majority of whom behave responsibly. The cost burden on practitioners who fund their regulatory authority has been taken into account by QCAT when considering costs in a case involving a medical practitioner[12] and another involving a lawyer.[13]
- [31]We have no evidence of the amount of costs incurred by the College. The total may run into many thousands of dollars. We are not prepared to impose a costs sanction in an unknown and unspecified amount to be determined. Such an order might be appropriate in some types of proceedings, but it is not appropriate in this case when a costs contribution is part of a disciplinary sanction. The amount to be paid by WAS for costs has some bearing on the other parts of the sanction to be imposed.
- [32]In these circumstances we have decided to require a payment up to a maximum of $2,500 by WAS. We are reasonably confident that this is less than the actual costs that would have been incurred by the College in making the disciplinary referral, preparing submissions and other documents, in attending directions hearings, and so on. We have decided to allow payment by instalments agreed between the parties, or failing agreement by 27 February 2016. This will enable a payment plan to be negotiated that takes into account whether or not WAS finds work. In case an agreement is not reached, we have allowed a relatively lengthy time for payment in full.
Period of prohibition
- [33]In support of its submission for a ten year period of prohibition, the College cites Queensland College of Teachers v Limpus[14] and Queensland College of Teachers v Grisedale[15] as comparative cases. In each case a prohibition period of five years was imposed, which was the maximum period when those cases were decided. The EQCT Act has since been amended to remove the cap. It is now open to QCAT to impose an indefinite period of prohibition.[16] The College submits that the behaviour of WAS was more serious than the behaviour of the teachers in Limpus and Grisedale.
- [34]Limpus involved a teacher who flirted with a 15 year old student and later had sexual intercourse with him at her home. The teacher was in her early 20s. She was in her first year of teaching. She did not participate in the QCAT hearing, but had earlier indicated that she denied the allegations. The College says the case is distinguishable from WAS’ case because the teacher was young and the sexual intercourse was an isolated incident. We accept that those are important differences, but on the other hand it is also important to note that the student in question was younger. He was below the age of consent. It is also relevant to note that the teacher was not cooperative in the QCAT proceeding.
- [35]Grisedale involved a relationship between a teacher and a year 12 student. The teacher was aged approximately 30. She had been registered for six years. The age of the student is not stated in the reasons, but she was described as vulnerable. Over a period of about three months the teacher and the student had a close friendship. The teacher gave the student gifts and they discussed personal matters. At one point the teacher held the student’s hand in an affectionate way. Shortly after the student finished school, there was cohabitation and a sexual relationship for some weeks. The teacher then terminated the relationship. The College submits that the case is distinguishable from WAS’ case in that the sexual relationship occurred after the student had left school. We agree that this is a point of distinction. On the other hand, we note that the teacher had been registered for a longer period.
- [36]The College submits that WAS’ case is more serious than the two comparative cases because WAS was an experienced teacher; the student was particularly vulnerable because of her history of sexual abuse; WAS was aware of that abuse but he failed to notify the authorities; he engaged in ‘grooming behaviours’; and he had sexual intercourse with the student on more than one occasion.
- [37]We do not accept some aspects of these submissions. The teacher in Grisedale had been registered for longer than WAS. Further, we would be reluctant to attach the adjective ‘grooming’ to the relevant behaviours in this case in the absence of a definition in the EQCT Act or some other settled definition. It is also noteworthy that some features in Limpus were more serious than in the present case: the younger age of the student and the lack of cooperation by the teacher.
- [38]Ultimately, of course, each case turns on its own facts. There is a range of relevant factors: the age of the teacher, the age of the student, the nature of the conduct, any psychological vulnerability, the level of cooperation in the proceedings, and so on. It is therefore not easy to rank cases in terms of seriousness. Overall, though, we do view WAS’ conduct as generally more serious than the conduct in the other cases. WAS was older. He was not a young and inexperienced teacher like Ms Limpus. He took advantage, for his own sexual gratification, of a student whom he knew had been sexually abused. He transgressed professional boundaries without any apparent hesitation. The relationship came to an end not as a result of WAS recognising that it was inappropriate, but because he was caught out by his wife.
- [39]We do not think, however, that the conduct was so much more serious that it warrants a doubling of the prohibition sanction. It is true that QCAT in Limpus and Grisedale imposed the maximum prohibition period then available, and that the five year cap has since been removed. There is, though, nothing in the reasons in Limpus or Grisedale to indicate that QCAT would have imposed longer periods had they been available.
- [40]It is appropriate to give weight to the fact that WAS has been fully cooperative in the investigation and the QCAT proceeding. It is also relevant to take into account that we impose a costs sanction as part of his sanction, which is a burden that was not imposed in either Limpus or Grisedale.
- [41]On balance, we consider that a six year prohibition period is appropriate. Six years is a substantial period in which WAS can mature and take opportunities to reflect and learn. It is also important to note that WAS will not automatically gain re-registration at the end of the six year period. Before he can gain re-registration he will have to demonstrate that he has gained awareness of matters such as the ways in which inappropriate relationships can affect students. We do not think that a longer period would significantly enhance the deterrent effect or serve any other useful purpose.
- [42]We have decided that the six year period should run from 11 July 2014, the date on which WAS’ registration was suspended. This is because we accept evidence from WAS that he has been attending counselling to address his psychological problems. We have no evidence about whether this has resulted in development of insight into the harm he has caused the student, or could cause students in the future, but it has probably been a useful step in that direction.
Conclusion
- [43]For these reasons, we consider that the appropriate sanctions consist of the cancellation of WAS’ teacher registration, the prohibition on reapplying for six years, the requirement for a satisfactory psychological or psychiatric assessment before any re-registration, and a costs contribution.
Footnotes
[1]EQCT Act s 92(1)(h).
[2]Ibid s 12(1)(b).
[3]Ibid s 12(3)(a).
[4]Ibid s 3(1).
[5]Queensland College of Teachers v Brady [2011] QCAT 464 at [55].
[6]EQCT Act s 160(2)(f)(ii).
[7]QCAT Act s 100.
[8]Ibid s 28(2).
[9]Submissions dated 7 October 2014 at [24].
[10]Submissions dated 16 February 2015 at [17].
[11] EQCT Act s 97(3).
[12] Medical Board of Australia v Love [2013] QCAT 608 at [49].
[13];Warren v Queensland Law Society Incorporated [2013] QCAT 234 at [37].
[14][2011] QCAT 99.
[15] [2011] QCAT 539.
[16] EQCT Act s 160(2)(j).