Queensland College of Teachers v ODM
[2017] QCAT 229
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- Unreported Judgment
- Queensland College of Teachers v ODM[2017] QCAT 229
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Queensland College of Teachers v ODM[2017] QCAT 229
Queensland College of Teachers v ODM[2017] QCAT 229
CITATION: | Queensland College of Teachers v ODM [2017] QCAT 229 |
PARTIES: | Queensland College of Teachers (Applicant) v ODM (Respondent) |
APPLICATION NUMBER: | OCR092-17 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member O'Callaghan |
DELIVERED ON: | 5 July 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | EDUCATION – TRAINING AND REGISTRATION OF TEACHERS – Suspension of teacher – where Queensland College of Teachers suspended the teacher’s registration on the basis of its belief that the teacher poses an unacceptable risk of harm to children – whether the teacher does not pose an unacceptable risk of harm – whether suspension should continue Education (Queensland College of Teachers) Act 2005 (Qld), s 49, s 50(5), s 53, s 54(1)(b), s 55(6) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 M v M (1988) 166 CLR 69; [1988] HCA 68 Queensland College of Teachers v Teacher CXJ [2016] QCAT 511 Queensland College of Teachers v Teacher GXM [2016] QCAT 441 Queensland College of Teachers v LDW [2017] QCAT 048 |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
- [1]ODM has been registered in Queensland as a teacher since 1999. On 15 May 2017 the Queensland College of Teachers (‘QCT’) suspended his registration pursuant to s 49 of Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Act’) on the basis that he posed an unacceptable risk of harm to children.
- [2]In accordance with s 50(5) of the Act, the QCT has referred the continuation of the suspension to QCAT for review and seeks orders that the suspension continue.
- [3]The Tribunal must decide to continue the suspension unless it is satisfied that ODM does not pose an unacceptable risk of harm to children.[1]
- [4]As required by the Act, directions were made by the Tribunal inviting submissions from ODM as to why he does not pose an unacceptable risk of harm to children. ODM has (through his legal representatives) declined to provide submissions as to whether the suspension should be continued, although he has made submissions in favour of a non-publication order.
The Legislative Framework
- [5]Once the QCT has formed a reasonable belief that a teacher poses an unacceptable risk of harm to children and suspended the teacher’s registration, the teacher then bears the onus of proof to satisfy the Tribunal that they do not pose an unacceptable risk of harm to children.[2]
- [6]The standard of proof is the civil standard of balance of probabilities in line with what is commonly referred to as the ‘Briginshaw standard’.[3] Accordingly, based on the serious consequences of findings, a teacher would not be successful in discharging the onus on the basis of inexact or flimsy evidence.[4]
What is meant by an unacceptable risk of harm to children?
- [7]The Act does not define “unacceptable risk of harm”. In Queensland College of Teachers v LDW I said:
I accept the submission of the QCT that the ordinary meaning of the term should be preferred having regard to the context of the term in the Act and the purpose of the Act.
The QCT refers the Tribunal to the High Court case of M v M, which considered the degree of risk of sexual abuse which would lead to denial of parental access. The Court in that case formulated the issue as ensuring the protection of a child from ‘unacceptable risk of abuse’. The QCT submits, and I accept, that this formulation directs the Tribunal to an assessment of the ‘chances’ of the risk occurring and the magnitude of potential harm if it did occur, and requires a balancing exercise of advantages and detriments.[5] [footnotes omitted]
- [8]The question is whether there is an identifiable risk of harm and whether such risk is “unacceptable”.
- [9]Harm is defined in the QCT Act as:
7 Meaning of harm
- (1)Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.
- (2)It is immaterial how the harm is caused.
- (3)Harm can be caused by—
(a) physical, psychological or emotional abuse or neglect; or
(b) sexual abuse or exploitation.
- (4)Harm can be caused by—
(a) a single act, omission or circumstance; or
(b) a series or combination of acts, omissions or circumstances.
- [10]This definition would suggest that the identified risk of harm must be significant, rather than minor, and the degree of risk of the harm occurring must be unacceptable. The mere possibility of harm would arguably not be ‘unacceptable’.
- [11]The determination of any identified risk as unacceptable involves achieving a balance between the protection of students from harm by the conduct of the teacher on the one hand and the potential harm to the teacher of having an unjustified suspension of their registration on the other.
- [12]This determination must be made in the context of the purpose of s 49, which is to ensure that children are protected by removing the risk that a teacher may harm, or be in a position to harm, children.
- [13]It is a protective provision which prefers the protection of children and the child’s interests over the interests of the registered teacher.
The grounds of ODM’s suspension.
- [14]The notice of suspension set out the QCT’s reasons for forming the view that ODM posed an unacceptable risk of harm to children as follows:
- ODM was first registered as a teacher on 15 January 1999;
- He was employed as a teacher at the relevant school between January 2006 and the time of suspension;
- During 2007 and 2008 the relevant student[6] was a student at the school in years 11 and 12 respectively;
- In 2007 ODM was the relevant student’s film and television teacher;
- In 2008 ODM directed a play which the relevant student played a role in. Play rehearsals were held at the relevant school, and ODM developed a practice of driving the relevant student and another student home after rehearsals at night;
- On or about 10 June 2008 ODM failed to maintain appropriate professional boundaries within the teacher-student relationship by kissing the relevant student on the mouth in a parked vehicle, whilst driving her home from a rehearsal;
- On 11 June 2008 the relevant student reported this incident to another student who reported it to staff members;
- On the afternoon of 11 June 2008, ODM send a number of text messages to the relevant student which read “What have you done?”, and had a telephone conversation with the relevant student where ODM expressed anger at the relevant student for reporting to another student;
- During an investigation by the relevant school, both ODM and the relevant student denied that he had kissed her. ODM made this denial in a written statement singed 15 June 2008;
- On 20 June 2008, the principal of the relevant school wrote to the Diocesan Director of the Diocesan Catholic Education Office advising that following the investigation there was no evidence of physical or sexual impropriety, but that ODM had been instructed not to transport students home in his vehicle and recommending that ODM be sanctioned and directed to undertake a professional boundaries program;
- Following the reporting of the incident, the relevant student felt isolated by her peers and teachers and began to self-harm by cutting the top of her thighs with razors, as well as repeatedly not attending school;
- On an unknown date between 30 June 2008 and 1 September 2008, during the production of the play, ODM failed to maintain appropriate professional boundaries within the teacher-student relationship by pushing the relevant student up against a wall and kissing her on the mouth.
- On an unknown date between 30 June 2008 and 1 September 2008 during the production of the play ODM failed to maintain appropriate professional boundaries within the student-teacher relationship by driving the relevant student to a car park and engaging in sexual misconduct with her, including kissing her mouth and neck, inappropriately touching her breasts, digitally penetrating her vagina, having her perform oral sex on him, placing his tongue on her vagina, and/or ejaculating in front of her;
- On the following day ODM failed to maintain appropriate professional boundaries within the teacher-student relationship by directing the relevant student to set up an email account to engage in electronic communication with ODM. ODM eventually began sending pornographic images to this account, including depicting women being tied up and beaten with equipment, and videos containing violent sex scenes;
- ODM failed to maintain appropriate professional boundaries within the teacher-student relationship by having sexual intercourse with the relevant student:
- On an unknown date between 5 October 2008 and 27 October 2008, during the production of the play. This incident upset the relevant student and she self-harmed by cutting her thighs with a razor blade;
- On at least three (3) particular occasions on unknown dates between 27 October 2008 and 10 December 2009, prior to the relevant student’s graduation. During these occasions ODM used force and placed his hands on the relevant student’s throat and pulled her hair;
- On at least five (5) particular occasions on unknown dates between 10 December 2008 and 1 January 2009 following the relevant student’s graduation;
- On an unknown date between 31 December 2008 and 1 January 2010, during which ODM and the relevant former student used a ‘ball gag’ and riding crop (whip) which ODM had brought;
- On an unknown date between 31 December 2008 and 1 January 2010, during which ODM engaged in ‘rough sex’ including grabbing the relevant former student by the hair and slamming her head against the side of the bed. During this incident ODM continued to have sex with the relevant former student despite her crying, and she subsequently sustained vaginal bleeding, a ‘fat’ lip and bruises to her arms;
- The relevant former student has reported that, having suffered a nervous breakdown in 2015, she saw a psychologist between September 2015 until November 2016 and that upon reflection she ‘never consented [to] or liked the rough sex or violent pornography’ and considers that she was taken advantage of whilst she was at school and under ODM’s care and responsibility.
- [15]The QCT filed the material on which the decision was based, namely:
- Statement of the relevant former student to New South Wales police, dated 12 April 2017;
- Letter from the Principal of the relevant school to an employee of the Diocesan Catholic Education Office dated 20 June 2008;
- Document entitled ‘Allegation of inappropriate behaviour against ODM’ with Annexures.
Does ODM pose an unacceptable risk of harm?
- [16]ODM has the onus of satisfying the Tribunal that he does not pose an unacceptable risk of harm. He has declined the opportunity to make any submission in response.
- [17]I am satisfied on the material currently provided that ODM poses an unacceptable risk of harm to children. I therefore order the suspension of ODM’s teachers registration continue.
- [18]I note that under s 55(6) of the Act, ODM may apply within 28 days of the notice of this decision to QCAT for review of this decision. He may at that point provide any additional material which may support a submission that he does not pose an unacceptable risk of harm to children.
Non-publication order
- [19]ODM has submitted that a non-publication order over the identify of himself, the relevant former student, the relevant school, staff members or former staff members of the relevant school, parents of students or former students of the relevant school, any witnesses who give evidence to the Tribunal, ODM’s daughter, wife and mother is appropriate. ODM submits that it would be contrary to the public interest for any of those identities to be published as they may lead to the identification of the relevant student, and further that it would be contrary to the public interest for the reputations of his wife, daughter and mother to be damaged by the issues canvassed in the proceeding.
- [20]The QCT submits that a non-publication order is appropriate, if the Tribunal considers that publication could lead to the identification of the relevant former student or ODM’s daughter.
- [21]I am satisfied that it would be contrary to the public interest for information to be published which would identify the relevant school and any students. There is a possibility that the publication of ODM’s name would lead to the identification of the relevant former student, and would lead to the identification of his daughter who is a student.
- [22]I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of that information.
Footnotes
[1]The Act, s 53.
[2]Queensland College of Teachers v Teacher CXJ [2016] QCAT 511, [26]; Queensland College of Teachers v Teacher GXM [2016] QCAT 441.
[3]Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362.
[4]QCT v Teacher CXJ [2016] QCAT 511, [27].
[5]Queensland College of Teachers v LDW [2017] QCAT 048, [10]-[11].
[6]“Relevant student” and “relevant former student” are used in these reasons to refer to the same person before and after her graduation.