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Queensland College of Teachers v JNS[2018] QCAT 228

Queensland College of Teachers v JNS[2018] QCAT 228

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland College of Teachers v JNS [2018] QCAT 228

PARTIES:

QUEENSLAND COLLEGE OF TEACHERS

(applicant)

v

JNS

(respondent)

APPLICATION NO/S:

OCR020-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

16 July 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski, Presiding Member

Member Clifford

Dr W Grigg, Member

ORDERS:

  1. The teacher is prohibited from reapplying for registration or permission to teach before 17 May 2022.
  2. The register of teachers is to be endorsed with a notation that should the teacher reapply for registration or permission to teach after the period of prohibition, the application must be accompanied by a report by a psychologist:
  1. (a)
    confirming that the psychologist has read the referral by the Queensland College of Teachers to the Tribunal filed on 19 January 2018, as well as these orders and reasons;
  2. (b)
    assessing whether the teacher adequately understands the following matters:
    1. differentiating between personal and professional relationships;
    2. the legal obligations of teachers and tutors;
    3. the concept, and importance, of professional boundaries;
    4. the development and maintenance of professional standards and professional boundaries when working with students;
    5. appropriate and inappropriate communication and behaviour with students;
    6. the impact of inappropriate communication, conduct and relationships upon students, families, schools and the profession;
    7. the need to protect children and students from physical, psychological and emotional harm;
    8. risk assessment and early identification of potentially problematic situations and venues;
    9. how to achieve realistic solutions to avoid the risk of harm to students;
    10. the power granted to a teacher;
    11. the extent and nature of the trust invested in a teacher by students, colleagues, parents and the community;
    12. conduct that would compromise the professional standing of a teacher and the teaching profession; and
    13. the importance of full adherence to the Queensland College of Teachers’ Code of Ethics.
  1. The teacher must pay $2,500 to the Queensland College of Teachers by way of costs by 16 July 2019.
  2. Publication, other than to the parties to this proceeding, is prohibited of any information which may identify any of the students involved, the school at which the teacher taught, or the teacher.

CATCHWORDS:

EDUCATION –  TRAINING AND REGISTRATION OF TEACHERS – where teacher favoured a student – where teacher formed an inappropriate personal relationship with a student – where teacher formed a sexual relationship with a former student – whether disciplinary ground established – sanction

Education (Queensland College of Teachers) Act 2005 (Qld), s 92(1)(h), s 161

Queensland College of Teachers v Derbyshire [2011] QCAT 536

REPRESENTATION:

 

Applicant:

E Houston, Acting Principal Legal Officer at Queensland College of Teachers

Respondent:

Holding Redlich Lawyers

APPEARANCES:

 

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

REASONS FOR DECISION

Introduction

  1. [1]
    This case is about whether disciplinary action should be taken against JNS, who was a registered teacher until her registration expired in late 2017. The Queensland College of Teachers (‘the College’) referred the matter to QCAT after it became aware of a close relationship between the teacher and a girl who was a student and then a former student of the teacher. The student became a former student after completing year 12 in 2016.

Legal framework

  1. [2]
    The Education (Queensland College of Teachers) Act 2005 (Qld) (‘QCT Act’) was enacted to uphold standards in the teaching profession; to maintain public confidence in the profession; and to protect the public by ensuring that school education is provided in a professional and competent way.[1]
  2. [3]
    Behaviour in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher, constitutes a ground for disciplinary action.[2]
  3. [4]
    To find that a disciplinary ground is established, we would need to be satisfied on the balance of probabilities. As the consequences of an adverse finding are serious, we could be satisfied only on the basis of suitably convincing evidence.[3]
  4. [5]
    Disciplinary action can be taken against not only currently registered teachers, but also formerly-registered teachers.[4]

The teacher’s background and her involvement in the disciplinary proceedings

  1. [6]
    The teacher became a registered teacher on 6 December 2012. She is now 27 years of age. In 2015, when the earliest incidents of concern happened, she was 23 to 24.
  2. [7]
    The teacher’s employer wrote to her on 31 March 2017 advising of its concerns about the relationship and describing the allegations. The teacher provided a detailed letter in response dated 19 April 2017, denying that she had behaved inappropriately. On 17 May 2017 the College suspended the teacher’s registration. On 17 July 2017 QCAT decided to continue the suspension. On 6 December 2017 the teacher’s registration expired.
  3. [8]
    On 19 January 2018 QCAT received the disciplinary referral from the College. On 19 February 2018 the teacher’s solicitor informed QCAT that the teacher did not wish to take part in the proceeding and would ‘abide by the order of the Tribunal’. On 17 April 2018 the teacher, through her solicitor, applied for a non-publication order. As part of that application, the teacher wrote that she did not wish to make any further statement in the proceeding. She added that she agreed to the cancellation of her registration, but asked QCAT to take into account the period of suspension.
  4. [9]
    The referral proceeded to a hearing on the papers, with the College providing written submissions dated 18 May 2018.

The relationship between the teacher and the student

  1. [10]
    The teacher taught the student in question in one subject in year 10 (2014) and in a different subject in year 11 (2015) and year 12 (2016). In the final two years, the teacher was also the student’s pastoral care teacher.
  2. [11]
    The student turned 15 in November 2014. She was almost 17 when she completed year 12 in 2016. She had attended the school since year 8. She is a friend of the teacher’s younger sister. The student is described as having a troubled background and living with a foster parent during her years at the school. She was subject to a long-term guardianship order placing her in the care of the relevant child safety authority.
  3. [12]
    The teacher gave an account of her relationship with the student in her letter dated 19 April 2017. However, we do not regard that account as reliable as it is contrary in several respects to other pieces of reliable evidence. So we are left to infer the nature of the relationship from the other available evidence. It is therefore desirable to outline below the key pieces of evidence from which our inferences are drawn. Apart from information supplied by the teacher and the student, the evidence mentioned below is uncontested and appears reliable.
  4. [13]
    As at the beginning of the period in question, the teacher was engaged to her long-term male partner. They had an engagement party in April 2015.
  5. [14]
    At some point in the first half of 2015, the teacher told a colleague that she was thinking of leaving her fiancé, as she ‘had feelings’ for another, unnamed person. From their conversation, the colleague understood that a relationship was forming with this other person. In the absence of any indication to the contrary, we infer that the other person was the student in question.
  6. [15]
    At the year 11 camp in August 2015, the teacher asked for permission for the student to sleep in her cabin because the student suffered from nightmares. The Assistant Principal refused permission.
  7. [16]
    On two or three occasions in term 1 in 2016 the Assistant Principal observed the teacher and the student sitting alone together in a building after school, talking. After the first occasion, he told the teacher she should not be alone with a student except in a highly visible area such as the library. On two occasions in 2016, the Assistant Principal proposed meetings with the teacher to discuss concerns, but for one reason or another these meetings did not proceed. However, at the request of the Assistant Principal, the pastoral leader in the school reinforced the message that the teacher should not stay behind alone in a classroom with a student. The pastoral leader also pointed out to the teacher that other students were starting to perceive favouritism by the teacher toward the student in question. At one of the fortnightly lunchtime check-ins between the teacher and the pastoral leader, the teacher wanted to bring the student along.
  8. [17]
    On 22 June 2016 the student told her child safety officer that she would be moving to the home of the teacher’s parents on 18 November 2016.
  9. [18]
    In term 3 of 2016 the student ‘ran out’ of a class and was later found in the chapel with the teacher. They were sitting next to each other on the floor, talking.
  10. [19]
    At times between mid-2015 and mid-2016 the teacher and the student exchanged emails about personal topics. Some of this was over-friendly chit-chat. Some was discussion of problems the student was facing. Sometimes the teacher asked for reports on class behaviour in her absence. In August 2015 reference was made to the student attending a theatre at night with the teacher and her family. In that month there were also references to chocolates, a book and a card the teacher had accepted as gifts from the student. In November 2015 the teacher said she would buy the student a big box of chocolates in return for help with errands.
  11. [20]
    The student finished school on 18 November 2016. This, we note, is the date she had told her child safety officer in June that she would be moving house.
  12. [21]
    At some point on or around her graduation date, the student or former student moved into the home of the teacher’s parents. We do not know exactly when this was. There is no evidence from the former student or the teacher’s family. The teacher in her letter dated 19 April 2017 said that the former student moved in in November 2016. The available information, while limited, points to the student moving in as soon as she graduated, and we find accordingly.
  13. [22]
    There is conflicting information about when the teacher moved back to her parents’ home following the breakup with her fiancé. It appears to have been over the summer holidays at the end of either 2016 or 2017. The teacher has referred to it being ‘during the New Year holidays’ apparently in 2016/2017. Another witness, though somewhat unsure, put it a year earlier.
  14. [23]
    On 3 January 2017 the teacher told a friend she had not been happy in her last relationship. She said she was now ‘seeing someone’ who found it hard to know about her past. The teacher asked the friend to delete a photograph of the teacher’s engagement party from Facebook. The next day she told the friend she wanted to keep the new relationship private. In February 2017, the teacher introduced the former student to the friend as her partner. As at February 2017, the teacher’s biographical details on Instagram indicated that that she was in a relationship but did not identify the partner.
  15. [24]
    On 3 March 2017 the teacher and the former student attended a dinner with some of the teacher’s friends. The teacher initially introduced the girl as her flatmate, but later said they were dating, and referred to her as her partner. The teacher said she now identified as a lesbian.
  16. [25]
    One of the friends reported the relationship to the authorities soon after this, when the friends realised that the partner was a recently-graduated student of the teacher’s school.
  17. [26]
    In her letter dated 19 April 2017, the teacher denied any romantic relationship with the former student. The teacher said she is heterosexual. She said she had known the student as an ‘at risk student’ with ‘mental health issues’, and she provided her with pastoral care as she would for any student in need. She said that the occasions when she was seen alone with the student happened simply because the student was the only one who accepted a general offer of an additional tutorial. She said that the student, as a friend of the teacher’s younger sister, formed a close relationship with the teacher’s family and therefore moved in with the family in November 2016.
  18. [27]
    On 26 May 2017 the former student’s child safety officer asked her about her relationship with the teacher. The former student said the relationship is ‘not really a thing’ and that they are ‘not official’. She said there had been ‘nothing going on’ at school between them, and they became close only after the teacher moved into the house.
  19. [28]
    The evidence from sources other than the teacher and the former student points compellingly to a romantic relationship between the teacher and the former student. We consider that evidence to be highly reliable. In contrast, the teacher and the former student have a motivation to downplay the true nature of their relationship. We find that there was a romantic relationship. When it passed the point from flirting to commitment, and when a sexual relationship began, we cannot know on the available evidence. We infer that at the latest, there was such a relationship once the teacher and the former student commenced living together at the home of the teacher’s parents. Giving the benefit of the doubt to the teacher about when she moved back into her parents’ house, this was at the latest within about six weeks of the student finishing year 12. So we will proceed on the basis that cohabitation began at that point. We will also proceed on the basis that the teacher refrained from sexual interaction until they began cohabiting.
  20. [29]
    However, it is apparent that the teacher had a sexual interest in the student while she was still in years 11 and 12, and the teacher engaged in flirting and encouragement. There was an intimacy between the teacher and the student that was different to a usual professional relationship between teacher and student. We find that the teacher favoured the student. We also infer that the teacher and the student had a plan from at least 22 June 2016, when the student told her child safety officer of her planned move, to begin cohabiting once the student finished year 12. We do not accept the suggestion made by the teacher that the motivation for the student’s move to the family home was merely for family support. While there may well have been family support for the former student, we infer that the move was made mainly so that the relationship between the teacher and the former student could be pursued more intensely. We do not know whether the relationship continues.

Is a disciplinary ground established?

  1. [30]
    The teacher favoured a student in whom she had a sexual interest. She failed to maintain professional boundaries between herself and the student for much of the last two years of the student’s schooling. This included socialising with her, discussing personal matters, exchanging gifts, and so on. The teacher persisted in crossing boundaries despite warnings from other staff.
  2. [31]
    The student had a troubled background. She was vulnerable and needy. As a pastoral care teacher, the teacher had a somewhat heightened responsibility to ensure that the best interests of students, especially vulnerable students, were protected. Instead, the teacher exploited this student’s neediness for her own purpose of forming an intimate relationship.
  3. [32]
    The teacher then began living with the former student as her partner very soon after the student’s graduation.
  4. [33]
    Unsurprisingly, this behaviour breached a raft of provisions in the Code of Conduct published by the teacher’s employer. For example the Code says that employees must not develop a relationship with a student that is, or that could be seen to be, a personal rather than a professional relationship. Further, it says that the obligation not to engage in a sexual relationship with a student continues for ‘a significant time’ after the student leaves school.
  5. [34]
    The teacher behaved in a way that does not satisfy the standard of behaviour generally expected of a teacher. Therefore, a disciplinary ground is established.[5]

Sanction

  1. [35]
    A sanction is imposed not to punish a teacher but to further the objects of the QCT Act. The sanction imposed should serve to deter future similar conduct by the teacher or other teachers, to protect students, and to maintain public confidence in the profession.
  2. [36]
    Clearly, a significant sanction is warranted in this case.
  3. [37]
    QCAT can prohibit a former teacher from reapplying for registration or permission to teach for a stated period from the day the order is made or indefinitely.[6] That can be done only if QCAT would have cancelled the teacher’s registration had the teacher remained registered. QCAT can also require the teacher to pay to the College an amount that QCAT considers appropriate by way of costs, having regard to the investigation and proceeding expenses.[7] QCAT can also order that an endorsement is to be entered in the register.[8]
  4. [38]
    This is a case where we would have cancelled the teacher’s registration if she had remained registered.
  5. [39]
    The College has referred to a number of previous cases in its submission. In our view, the only case sufficiently similar to warrant discussion is Queensland College of Teachers v Derbyshire[9] (‘Derbyshire’). That case also involved a young teacher, in that case a male. A female year 12 student was in classes supervised by him in term 3. He then left the school. He entered into a relationship, including sex, with the student over the following couple of months. The girl was 17. QCAT considered that the conduct involved exploitation by the teacher of the power and trust afforded to him as a teacher. QCAT noted, however, that there was no suggestion that the student had vulnerabilities. The teacher cooperated with the College, and made admissions. QCAT was satisfied that the teacher had come to appreciate that the relationship was inappropriate, and that he was remorseful. QCAT decided to cancel the teacher’s registration and prohibit him from reapplying for registration for three years from the date of suspension of his registration.
  6. [40]
    In the present case the College submits that a lesser sanction is appropriate because of the ‘absence of any evidence of sexual conduct’. We do not accept that submission. There is no direct evidence of sexual conduct but we have had no hesitation in inferring that there was sexual conduct. As already mentioned, we are proceeding on the basis that the sexual conduct commenced after the student graduated.
  7. [41]
    We consider that the conduct in the present case is considerably more concerning that the conduct in Derbyshire. In the present case, the teacher fostered an inappropriately close relationship over a period of almost two years in the build-up to the sexual relationship. During that phase, the student was only 15 to 16. This included a plan to begin cohabitation that was formed when the student was in year 12. The student was vulnerable. The teacher persisted in pursuing the relationship despite warnings from school staff. The teacher has not made any admissions. Instead, she made a false denial. She has not shown any indication of insight or remorse.
  8. [42]
    We therefore consider that a long period is required for the teacher to gain maturity, and reflect upon the inappropriateness of her conduct, before she can have an opportunity to re-enter the teaching profession.
  9. [43]
    We also note that when Derbyshire was decided, a five year cap on the period of prohibition applied under the QCT Act. That cap has since been removed, reflecting the community’s growing concern for the protection of children.
  10. [44]
    We consider that a prohibition period of five years from the date of suspension, 17 May 2017, is appropriate in the present case.
  11. [45]
    The College seeks an order for $2,500 in costs. This is on the basis that the financial burden of investigating and proceeding in such a matter should be borne by the teacher who has been found to have erred, rather that teachers generally through their registration fees. We consider that a costs order for $2,500 is appropriate. That figure would be a conservative estimate of the actual cost.
  12. [46]
    The College submits that we should order a notation to be endorsed on the register that the teacher must supply a psychologist’s or psychiatrist’s report, addressing certain matters, to accompany any future application to be re-registered. The College has proposed numerous topics to be covered in such a report. We have adopted most of those. However, we have not adopted the topics relating to ‘any mental illness, condition or disorder’. There are indications in the investigation report that the teacher had significant mental health problems in 2016, at around the time she was breaking up with her fiancé and coming to terms with her sexuality. We do not believe, however, that there are indications of ongoing mental illness. Therefore we do not regard those additional topics as ones that should be included.

Non-publication

  1. [47]
    An interim non-publication order was made by QCAT on 17 April 2018. We consider it appropriate to make a permanent non-publication order to protect the student in question. She was only 15 when the teacher commenced the inappropriate relationship. In the interests of justice,[10] she should not be identified. To prevent that from happening, it is also necessary to prohibit identification of the teacher and the school.

Conclusion

  1. [48]
    We have imposed a significant sanction in this case in order to protect students. We do not believe that the teacher is presently suitable to teach. A significant period would be required if she is to develop insight into the importance of maintaining professional boundaries in her dealings with students.

Footnotes

[1]Education (Queensland College of Teachers) Act 2005 (Qld), s 3(1).

[2]Ibid s 92(1)(h).

[3]Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.

[4]Education (Queensland College of Teachers) Act 2005 (Qld), s 111A, s 161.

[5]Education (Queensland College of Teachers) Act 2005 (Qld), 92(1)(h).

[6]Ibid s 161(2)(c).

[7]Ibid s 161(2)(b).

[8]Ibid s 161(2)(d).

[9][2011] QCAT 536.

[10]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(2)(e).

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v JNS

  • Shortened Case Name:

    Queensland College of Teachers v JNS

  • MNC:

    [2018] QCAT 228

  • Court:

    QCAT

  • Judge(s):

    Presiding Member Kanowski, Member Clifford, Member Grigg

  • Date:

    16 Jul 2018

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
Briginshaw v Briginshaw (1938) HCA 34
1 citation
Jump To
Cite 1 - (1938) HCA 34
Queensland College of Teachers v Derbyshire [2011] QCAT 536
2 citations
Jump To
Cite 1 - [2011] QCAT 536
Cite 2 - [2011] QCAT 536

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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