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Queensland College of Teachers v CMH[2018] QCAT 252

Queensland College of Teachers v CMH[2018] QCAT 252

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland College of Teachers v CMH [2018] QCAT 252

PARTIES:

QUEENSLAND COLLEGE OF TEACHERS

(applicant)

v

CMH

(respondent)

APPLICATION NO/S:

OCR030-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

30 July 2018

HEARING DATE:

16 July 2018

HEARD AT:

Brisbane

DECISION OF:

Member Goodman

ORDERS:

  1. The suspension of the registration of CMH as a teacher is continued.
  2. Other than to the parties to this proceeding and until further order of the Tribunal, publication is prohibited of any information which may identify CMH, any relevant student, or the relevant school.

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, s 140

Briginshaw v Briginshaw (1938) 60 CLR 336

M v M (1988) 166 CLR 69

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 & REPRESENTATION:

 

Applicant:

B Houston

Respondent:

M White, instructed by Butler McDermott Lawyers

REASONS FOR DECISION

  1. [1]
    CMH has been registered in Queensland as a teacher since 2015. In 2015 and 2016 CMH was employed as a teacher. In addition to her classroom teaching, she was the coach of an U15 sporting team. The particular sport was a contact sport and so there was by necessity some physical contact between the teacher and the students in demonstrating techniques. Over time, concerns were raised regarding CMH’s relationships with the students, and in particular with student A, who she coached as part of the team and also spent time with outside of school and team training hours.
  2. [2]
    On 25 January 2017, the Queensland College of Teachers (‘QCT’) suspended CMH’s registration pursuant to s 49 of Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Act’) on the basis that she posed an unacceptable risk of harm to children.
  3. [3]
    In accordance with s 50(5) of the Act, the QCT referred the continuation of the suspension to QCAT for review and sought an order that the suspension continue.
  4. [4]
    On 24 October 2017, QCAT determined that the suspension of CMH’s teacher registration should be continued. On 11 December 2017, QCAT made a further decision to reopen the application, and set aside the previous decision.[1] Following some further delays and adjournments, the matter is now before the Tribunal to consider and substitute a new decision. As the previous decision has been set aside, it is not taken into account in this decision.
  5. [5]
    The Tribunal must decide to continue the suspension unless it is satisfied that CMH does not pose an unacceptable risk of harm to children.[2]
  6. [6]
    As required by the Act, directions were made by the Tribunal inviting submissions from CMH as to why she does not pose an unacceptable risk of harm to children. CMH has provided submissions, arguing that the suspension should be ended.[3] The QCT has filed further submissions in response.[4] Both parties provided further oral submissions at the hearing.

The Legislative Framework

  1. [7]
    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.[5]
  2. [8]
    The standard of proof is the civil standard of balance of probabilities, on what is commonly referred to as the ‘Briginshaw standard’.[6] 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.[7]

What is an unacceptable risk of harm to children?

  1. [9]
    The Act does not define the term ‘unacceptable risk of harm’. In Queensland College of Teachers v LDW, the Tribunal said:[8]

[10] 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.

[11] 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. [footnotes omitted]

  1. [10]
    The question is whether there is an identifiable risk of harm and whether such risk is ‘unacceptable’.
  2. [11]
    Harm is defined in the QCT Act as:

7 Meaning of harm

  1. (1)
    Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.
  1. (2)
    It is immaterial how the harm is caused.
  1. (3)
    Harm can be caused by—
  1. (a)
    physical, psychological or emotional abuse or neglect; or
  1. (b)
    sexual abuse or exploitation.
  1. (4)
    Harm can be caused by—
  1. (a)
    a single act, omission or circumstance; or
  1. (b)
    a series or combination of acts, omissions or circumstances.
  1. [12]
    The definition suggests 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’. 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.
  2. [13]
    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. It is a protective provision which prefers the protection of children and the child’s interests over the interests of the registered teacher.[9]

The grounds of CMH’s suspension

  1. [14]
    The notice of suspension sets out the QCT’s reasons for forming the view that CMH posed an unacceptable risk of harm to children. Due to the time it has taken to bring this matter to hearing, some of the grounds are no longer relied upon. The QCT advise that the grounds currently relied on to form the view that CMH poses an unacceptable risk of harm to children are as follows:
    1. (a)
      On dates between 27 January 2015 and 25 July 2016 whilst employed as a teacher CMH failed to maintain appropriate boundaries within the teacher/student relationship with student A and others including but not limited to:
    1.               In 2015 engaging in inappropriate physical contact with student A by allowing the student to stroke and/or touch her arms in the classroom;
    2. In terms 3 and 4 of 2015 engaging in inappropriate physical contact with A by stroking and or tickling A’s arm and touching A’s leg whilst driving her home from training;
    3. In 2015 and 2016 inviting A over to her place of residence outside of school hours, including allowing A to stay overnight;
    4. During 2015 and 2016 speaking to A by telephone at night and outside of school hours;
    5.               In December 2015/January 2016 giving A a bracelet;
    6. In early 2016 attending a coffee shop with A outside of school hours;
    7. In early 2016 attending a sushi restaurant with A outside of school hours;
    8. In March/April 2016 inviting A to her birthday party. A subsequently attended;
    9. During the Easter weekend in 2016 inviting A to stay at her house and lying beside A on her bed in her bedroom;
    10.               During term 2 in 2016 hugging A and allowing A to kiss her on the cheek during a sporting event;
    11. In June 2016 giving A a jacket and pencil case for her birthday;
    12. While on an approved camping trip on 23 or 24 July 2016, inappropriately entering A’s tent at approximately 6.15am and remaining in there.
    13. On dates unknown between 27 January 2015 and 25 July 2016, failing to maintain appropriate boundaries within the teacher/student relationship by giving presents to two other students.
  2. [15]
    In these unusual circumstances, and due to the delay in this matter coming to a hearing, an investigation report has been completed and provided to the parties. The report contains findings in relation to other concerns not raised as original grounds for suspension. The investigation report was not made available to the Tribunal for the purposes of this proceeding. The QCT submitted that the Tribunal should determine this application on the basis of the concerns contained in the notice of suspension, with some particular matters no longer relied on. The introduction of new evidence would mean further delay in the finalisation of this matter to allow the Tribunal time to consider the new evidence and for CMH to respond to it. CMH submitted that this hearing should proceed on the basis of the evidence currently before the Tribunal.  The Tribunal is satisfied that the course of action proposed by the parties is the most appropriate, particularly given the delays already experienced. 
  3. [16]
    The QCT filed the material on which the decision was based, namely:
    1. (a)
      Incident statements of SI dated 26 July 2016;
    2. (b)
      Statement of WG (undated);
    3. (c)
      Transcript of DET interview with student JT (dated 12 September 2016);
    4. (d)
      Transcript of DET interview with student MD (dated 16 September 2016);
    5. (e)
      Transcript of DET interview with student CJ (dated 12 September 2016);
    6. (f)
      Transcript of DET interview with student AS (dated 16 September 2016). At the hearing, the QCT advised they would not be relying on any evidence contained in this transcript;
    7. (g)
      Transcript of DET interview with teacher MD (dated 12 September 2016);
    8. (h)
      Transcript of DET interview with teacher FA (dated 29 September 2016);
    9. (i)
      Transcript of DET interview with A’s father (dated 12 September 2016);
    10. (j)
      Transcript of DET interview with student A (dated 22 September 2016);
    11. (k)
      Email from teacher MD dated 4/10/16;
    12. (l)
      Email from MR dated 14 September 2016; and
    13. (m)
      Email from WD dated 7 August 2016.

CMH’s submissions

  1. [17]
    CMH submits that many of the allegations are simply not true. In particular, she denies any allegations of tickling / stroking / touching in the classroom or in her car. She denies any hugging or kissing at a sporting event. She denies entering A’s tent, stating that she half entered the tent to wake A up but did not completely enter the tent and did not remain in it. She states that she did not lie beside A on her bed.
  2. [18]
    CMH provided supportive references from friends, colleagues and relatives who deny knowledge of any wrongdoing on CMH’s part.
  3. [19]
    She accepts that the following events occurred, and has provided her explanation:
    1. (a)
      A did stay over at her place. CMH states that this was with the permission of A’s parents and was in the context of very early training events (4.30am starts). CMH states that her flatmates, who were experienced teachers, knew of this arrangement and did not raise concerns with her. She disputes evidence from the deputy principal who claims that CMH was advised that this was inappropriate.
    2. (b)
      If she saw A at church they would exchange a kiss on the cheek. There was no other kissing or hugging.
    3. (c)
      She spoke to A by telephone at night and out of school hours. The school had previously mistakenly published her personal mobile telephone number on a permission form provided to the students. She received a call from A late one night. A was distressed and told CMH she was considering suicide. She told CMH she could not go home because of a fight with her father. CMH ultimately drove to meet up with A and spent time with her in a park near her home and was eventually able to persuade A to spend the evening at the home of another relative. She did not report the incident to others as A had told her she would commit suicide if she did.
    4. (d)
      She did give A a bracelet.
    5. (e)
      She did attend a coffee shop and sushi restaurant with A. This was in the course of transporting A for training. CMH had observed that the school placed pressure on teachers to undertake extracurricular activities and so it was common for students and teachers to spend time together outside of school hours
    6. (f)
      A did attend her birthday party. This was at Easter time. A arrived unexpectedly and uninvited at CMH’s house that morning (having been dropped off by her mother). When A entered CMH’s bedroom, CMH immediately asked her to leave. A travelled with CMH to the birthday party where she stayed for a short time before leaving.
    7. (g)
      She did give A a jacket and pencil case for her birthday.
    8. (h)
      She did give presents to other students. These were inexpensive and were given to every team member.
  4. [20]
    CMH submits that:
    1. (a)
      The evidence of a number of the students and others who were interviewed by DET is not credible. In particular, one of the witnesses is a former flatmate of CMH, and their relationship soured when she found covert cameras around the property. The student witnesses had formed a dislike of CMH and had fallen out with student A, and so they had motivation to provide evidence that would create difficulties for CMH and for student A.
    2. (b)
      Student A and her father (who considers that he knows CMH well) both deny any inappropriateness in her relationship with A.
    3. (c)
      Student A was a troubled teen who was experiencing difficulties at home and with her friends, and who turned to CMH for care, support and guidance. Ultimately the student became too reliant upon her and due to inexperience CMH failed to recognise this at the time. There was, however, no sexual or even overly familiar relationship between CMH and A.
    4. (d)
      She does not present an unacceptable risk of harm to children.

The QCT’s submissions

  1. [21]
    The QCT submits that the Tribunal need not be satisfied that actual harm has been proved, only that there is an unacceptable risk of harm.
  2. [22]
    CMH’s conduct poses an unreasonable risk of harm to children’s emotional and psychological wellbeing.
  3. [23]
    The evidence establishes that CMH:
    1. (a)
      engaged in affectionate physical contact with A (hugging and kissing);
    2. (b)
      spent time alone together with A in CMH’s car, at her home, at the training camp, at the park during the evening CMH says that A called her in a distressed state, and during training sessions;
    3. (c)
      allowed student A to stay in her home overnight; and
    4. (d)
      gave A personal and expensive gifts – a Pandora bracelet and a leather jacket.
  4. [24]
    CMH’s conduct demonstrates favouritism and preferential treatment towards student A.
  5. [25]
    Spending time alone together, particularly in the early hours of the morning, raises concerns as to the nature of the relationship between CMH and A.
  6. [26]
    CMH has not properly understood how her relationship with the student might be perceived by others, and the impact that perception might have on the student and the wider community. The impact is the harm, as defined in the legislation.
  7. [27]
    CMH’s involvement with the group of students has resulted in falling out of relationships within the group.
  8. [28]
    CMH has failed to understand her obligations and responsibilities as a teacher. She has not ensured that professional boundaries were maintained, and she did not understand the need to report A’s threats of self-harm to ensure that A received professional help and support.
  9. [29]
    CMH poses an unacceptable risk of harm to children. 

Has CMH established that she does not pose an unacceptable risk of harm?

  1. [30]
    The Tribunal accepts that some of the evidence initially provided to the QCT is unreliable. In particular, detailed and alarming evidence provided by student AS about CMH’s behaviour with A while on a school trip is no longer relied upon as it has been established that A did not attend the trip. Further, concerns raised by a former flatmate that CMH may have snuck A into the house are no longer relied on as it has been established that the person arriving late and leaving the next morning was CMH’s sister. Evidence in relation to a note allegedly written by CMH and attached to some chocolate for A is no longer relied upon by the QCT.  It is of concern to the Tribunal that some of the original evidence appears to have been manufactured. That is not to say, however, that the Tribunal finds that all of the evidence is unreliable. CMH herself has conceded that she engaged in particular behaviours which of themselves raise concern.
  2. [31]
    I do not propose to consider in detail the material contained in the transcripts of interviews with students and teachers. Those matters can be considered fully at the final hearing of this matter.  While some of the allegations initially raised were simply untrue, it is clear that the relationship between CMH and A was one that concerned a number of teachers and students. The relationship was at the centre of gossip and innuendo amongst the students. A’s reputation was affected by the events of 2015 and 2016, and A herself and a number of the students indicate that it was her relationship with CMH that caused great difficulties amongst the students.
  3. [32]
    CMH has not demonstrated insight and understanding of her professional obligations. CMH’s behaviour towards A demonstrated favouritism and, as CMH concedes, A came to rely upon her. The relationship harmed A’s reputation amongst her peers and the wider school community. This is a significant harm for a year 9 and 10 student to endure.
  4. [33]
    CMH has the onus of satisfying the Tribunal that she does not pose an unacceptable risk of harm. She has not discharged that onus. Her relationship with A breached professional boundaries. It was a personal relationship, and the familiarity between the two is demonstrated by student A arriving (on CMH’s evidence) unannounced to surprise CMH with chocolate at Easter (the day of her birthday party). 
  5. [34]
    The Tribunal finds that the breach of professional standards has the potential to have a significant detrimental effect on a child’s psychological and emotional well-being. 
  6. [35]
    I find that the conduct constitutes an unacceptable risk of harm to children. I accept that CMH was at the time an inexperienced teacher. Even given time to reflect, however, CMH has not acknowledged in her submissions that her actions could have resulted in harm to the student. I am not satisfied that CMH has developed insight into the risk that arose from the relationship between her and student A. Lack of insight may increase the likelihood of harm reoccurring. The harm is significant.
  7. [36]
    CMH has not discharged the onus to satisfy the Tribunal that she does not pose an unacceptable risk of harm to children. Accordingly, the suspension of her teacher registration must continue, and I make that order.
  8. [37]
    I note that under s 55(6) of the Act, CMH may apply within 28 days of the notice of this decision to QCAT for review of this decision. She may at that point provide any additional material which may support a submission that she does not pose an unacceptable risk of harm to children.

Non-publication order

  1. [38]
    Pursuant to s 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal can make an order prohibiting the publication of information that may enable a person who has appeared before the Tribunal to be identified. The Tribunal may do so on the application of a party or on its own initiative.[10]
  2. [39]
    Both parties submit that a non-publication order is appropriate and necessary in these circumstances.
  3. [40]
    I am satisfied that it would be contrary to the public interest for information to be published which would identify CMH, any of the relevant students or former students, or the relevant school. This non-publication order can be revisited in any subsequent disciplinary proceedings.
  4. [41]
    I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of that information.

Footnotes

[1] Section 140, Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

[2] The Act, s 53.

[3] Submissions of CMH, dated 12 June 2017.

[4] QCT’s Submissions, dated 25 June 2017.

[5] Queensland College of Teachers v Teacher CXJ [2016] QCAT 511, [26]; Queensland College of Teachers v Teacher GXM [2016] QCAT 441.

[6] Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362.

[7] QCT v Teacher CXJ [2016] QCAT 511, [27].

[8] Queensland College of Teachers v LDW [2017] QCAT 048, [10]-[11].

[9] Queensland College of Teachers v LDW [2017] QCAT 048, [16]-[17].

[10] Section 66(3), QCAT Act.

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v CMH

  • Shortened Case Name:

    Queensland College of Teachers v CMH

  • MNC:

    [2018] QCAT 252

  • Court:

    QCAT

  • Judge(s):

    Member Goodman

  • Date:

    30 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
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
M v M (1988) 166 CLR 69
1 citation
Jump To
Cite 1 - (1988) 166 CLR 69
QCT v Teacher GXM [2016] QCAT 441
2 citations
Jump To
Cite 1 - [2016] QCAT 441
Cite 2 - [2016] QCAT 441
Queensland College of Teachers v LDW [2017] QCAT 48
3 citations
Jump To
Cite 1 - [2017] QCAT 48
Cite 2 - [2017] QCAT 48
Cite 3 - [2017] QCAT 48
Queensland College of Teachers v Teacher CXJ [2016] QCAT 511
3 citations
Jump To
Cite 1 - [2016] QCAT 511
Cite 2 - [2016] QCAT 511
Cite 3 - [2016] QCAT 511

Cases Citing

Case NameFull CitationFrequency
CMH v Director General Department of Justice and Attorney-General [2023] QCAT 633 citations
1

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