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Queensland College of Teachers v JN[2019] QCAT 241

Queensland College of Teachers v JN[2019] QCAT 241

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland College of Teachers v JN [2019] QCAT 241

PARTIES:

Queensland college of teachers

(applicant)

v

JN

(respondent)

APPLICATION NO/S:

OCR095-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

21 August 2019

HEARING DATE:

24 January 2019

HEARD AT:

Brisbane

DECISION OF:

Member Allen, Presiding

Member Deane

Member Grigg

ORDERS:

  1. JN’s registration as a teacher is cancelled.
  2. JN is prohibited from applying for registration or permission to teach for a period of 5 years from the date of this order.
  3. A notation is to be entered in the register of teachers that should JN apply for registration or permission to teach, the application must include a psychologist’s report for which the following conditions are met:
    1. (a)
      Prior approval has been obtained from the Queensland College of Teachers for the preparation of the report by that psychologist;
    2. (b)
      The psychologist has been provided with copies of the disciplinary referral made by the Queensland College of Teachers to the Tribunal on 13 April 2018 and the Tribunal’s disciplinary orders and reasons;
    3. (c)
      The report includes an assessment  of JN’s appreciation of:
      1. Differentiating between personal and professional relationships;
      2. The legal obligations of teachers;
      3. The development and maintenance of professional standards and physical boundaries when working with young people;
      4. How to actively determine and implement professional boundaries with individual students;
      5. How to assess risk and identify potentially problematic situations early;
      6. How to initiate realistic solutions for avoiding the risk of harm to students;
      7. The nature and extent of the trust and power invested in teachers by students, colleagues, parents and the community;
      8. Behaviour that would compromise the professional standing of a teacher and the profession of teaching;
      9. The effects of inappropriate relationships with students; and
      10. The importance of adherence to the Queensland College of Teachers’ Code of Ethics;
    4. (d)
      The report describes any therapy undertaken by JN since January 2017; and
    5. (e)
      The report describes JN’s mental health at the time of the assessment.
  4. JN must pay the amount of $1,721.02 to the Queensland College of Teachers within the period of 12 months from the date of this order.
  5. Publication is prohibited of any information which may identify JN, members of JN’s family, BA and any of the witnesses or the relevant school, except that the fact that JN is the teacher named in the decision may be published to:
    1. (a)
      other teaching regulatory authorities;
    2. (b)
      any government authority dealing with the suitability of people working with children;
    3. (c)
      any psychologist preparing a report in accordance with these orders.
  6. The Tribunal reasons for decisions may be published in de-identified format only.

CATCHWORDS:

EDUCATION – EDUCATORS –– DISCIPLINARY MATTERS – GENERALLY – where teacher had taught student for one semester – where student best friend of teacher’s daughter – where teacher spent time watching TV and talking alone late at night with student while she was a guest at his house – where topics of conversation became inappropriate after student finished school – where use of social media commenced after student finished school – where  teacher and now former student commenced sexual relationship when he was 42 years old and she was 17 –  whether teacher’s behaviour does not satisfy standards of behaviour generally expected of a teacher – consideration of appropriate sanctions and order generally

Education (Queensland College of Teachers) Act 2005 (Qld), s 3(1), s 92, s 158, s 160

Briginshaw v Briginshaw (1938) 60 CLR 336

Hoile v Medical Board of South Australia [1960] HCA 30

Burgess v Board of Teacher Registration Queensland [2003] QDC 159

Queensland College of Teachers v Armstrong [2010] QCAT 709

Queensland College of Teachers v McNamara [2010] QCAT 442

Queensland College of Teachers v WAS [2015] QCAT 61

Queensland College of Teachers v TSV [2015] QCAT 186

Queensland College of Teachers v CMF (No. 2) [2016] QCAT 290

Queensland College of Teachers v Satora [2016] QCAT 411

Queensland College of Teachers v HMJ [2016] QCAT 447

Queensland College of Teachers v RTM [2016] QCAT 501

Queensland College of Teachers v SEF [2017] QCAT 55

Queensland College of Teachers v JNJ [2017] QCAT 125

Queensland College of Teachers v FAS [2017] QCAT 226

Queensland College of Teachers v Teacher FDA [2017] QCAT 224

Queensland College of Teachers v SGS [2017] QCAT 383

Queensland College of Teachers v Teacher CXJ [2018 QCAT 117

Queensland College of Teachers v DGM [2018] QCAT 194

APPEARANCES & REPRESENTATION:

 

Applicant:

E Houston, in-house solicitor

Respondent:

E Burke, solicitor of Holding Redlich

REASONS FOR DECISION

Introduction

  1. [1]
    JN is a teacher who had a sexual relationship with a former student, BA. When BA’s mother, BB became aware of that relationship, she informed HH, the principal of the School where JN taught. Prior to BB speaking to HH, JN had already informed HH of the relationship. JN resigned from the School and HH referred the matter to the College[1] which initiated an investigation[2] of the matter. A referral was then made by the College to the Tribunal[3] on 18 April 2018 for the determination of the disciplinary matter.
  2. [2]
    JN’s registration as a teacher was suspended by the College[4] on 20 February 2017 and the suspension was continued by the Tribunal[5] on 20 April 2017 pending the outcome of this proceeding.
  3. [3]
    The Tribunal’s role is to determine whether a ground for disciplinary action is established[6] in respect of JN and if it is satisfied to order an appropriate sanction against JN. The Tribunal must be satisfied whether or not the ground exists on the basis of the civil standard.[7] The Tribunal must take into account relevant previous decisions in deciding whether the ground is established.[8]
  4. [4]
    The ground for disciplinary action is said to be under the Education (Queensland College of Teachers) Act 2005 (Qld) (‘E(QCT) Act’) s 92(1)(h): ‘JN behaved in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher.’
  1. [5]
    The allegations are summarised as follows:
    1. (a)
      During 2014 and 2015, JN engaged in over familiar conduct with student BA when she visited JN’s daughter JT at his house, who at the time was student BA’s best friend, including but not limited to:
      1. Staying up with student BA after his daughter had gone to bed and providing and/or watching DVD’s and/or movies together; and
      2. Engaging in conversation with student BA about music and movies.
    2. (b)
      Between December 2015 and February 2016, JN engaged in over familiar conduct with the now former student BA, including but not limited to asking her about her male relationships.
    3. (c)
      Between Friday 12 February 2016 and Saturday 13 February 2016, JN kissed the former student BA at his house.
    4. (d)
      Between 12 February 2016 and 14 February 2017, JN engaged in an intimate relationship with the former student BA, including but not limited to:
      1. On or about the end of February 2016, JN kissed the former student BA at his house;
      2. On or about the end of February 2016, JN had sexual intercourse with the former student BA at his house;
      3. Whilst the former student BA was living in another town completing a university course, on more than one occasion, JN visited the former student BA at her house and had sexual intercourse with her, including but not limited to staying at her house for a week in or around June 2016.
    5. (e)
      JN engaged in personal and/or intimate and/or sexual communication via personal messages with former student BA, messages which are set out in the attachment to the referral between 27 July 2016 and 2 October 2016.
    6. (f)
      Between November 2015 and February 2017, on more than one occasion JN requested the former student BA delete their electronic conversations.
    7. (g)
      In or around August 2016 (later agreed this was in November 2016), JN and the former student BA booked a holiday that they went on together, in or around the beginning of January 2017.
    8. (h)
      On or before 20 September 2016, JN asked the former student to marry him.
    9. (i)
      On 13 and 14 February 2017, after the former student BA attempted to end the relationship, JN acted inappropriately, including in summary with the particulars set out in the attachment to the referral:
      1. Attempting to call her at least nine times on 13 February 2017 and eight times on 14 February 2017;
      2. On 13 February JN sent or left four recorded messages for the former student BA via Facebook, in which he was screaming for her to believe him and not leave him;
      3. On 13 February, JN via Facebook persistently (he agreed it occurred ‘on more than one occasion’) requested the former student BA give him information about the address of her grandparents’ house where she was staying, despite the former student’s reluctance to provide that information;
      4. On 13 February 2017, JN drove to the former student’s grandparents’ house and left gifts at the letter/post box;
      5. Between 13 and 14 February 2017, JN threatened to commit suicide;
      6. Between 13 and 14 February 2017, JN sent numerous messages to the former student via Facebook after she told him to stop, as set out in the attachment to the referral, some of which relevantly state:
        1. ‘Why would I risk my hob [sic] and career fir [sic] you if I was banging anything else on the side’;
        2. ‘You ruined my fucking life. Gave me the promise of something amazing and took it away in the worst possible way’;
        3. ‘Fuck you and your family of job ruining bastards’;
        4. ‘This will finally make you all feel fucking happy’;
        5. ‘I’m simply going to post on Facebook about us and let the whole world know’;
        6. ‘You shouldn’t have treated me so badly and been so indifferent when your family made me lose my job. Did you checj [sic]?’.

Uncontroversial facts

  1. [6]
    There was no statement of agreed facts filed in respect of this matter. JN and the College agreed that none of the College’s witnesses would be called to give evidence at the hearing. There are certain facts which are not controversial as between the parties and are supported by the statements of evidence and admissions from JN and the Tribunal is satisfied in regard to the facts set out below:
    1. (a)
      JN, born in 1974, has been registered as a teacher in Queensland since 2003;
    2. (b)
      JN was employed at the School as a teacher from 2005 until he resigned in January 2017;
    3. (c)
      JN is divorced and has two daughters, JT and JL. He had custody of his children from Wednesday to Saturday evening every second week during the relevant period;
    4. (d)
      JT and JL were students at the School;
    5. (e)
      BA, born in 1998 was a student at the School starting half way through year 9 and finishing year 12 at the end of 2015;
    6. (f)
      JN taught BA one subject in a class of 25 when she was in Year 10, in 2013. He did not teach her any other subjects as she was in a different educational stream to the one he taught in;
    7. (g)
      JT and BA became friends when they were in Year 10 and they were best friends in Year 11 and 12;
    8. (h)
      BA would visit JN’s house and stay overnight. This happened once or twice when she was in Year 10 and more regularly when she was in Grade 11 and 12;
    9. (i)
      There were occasions when JN and BA would be alone in JN’s lounge room after his daughters had gone to bed. During these times they would watch movies and have conversations;
    10. (j)
      JN was in a relationship with HL from June 2015 to September 2016. HL did not reside with JN but stayed over regularly;
    11. (k)
      BA finished her schooling at the end of October 2015 and continued to stay regularly at JN’s house as a friend of JTs and on occasion stay up late watching movies and having conversations with JN;
    12. (l)
      JN and BA exchanged mobile phone numbers and Facebook identities prior to February 2016.
    13. (m)
      In February or March 2016 JN and BA kissed for the first time and following that they commenced a consensual sexual relationship;
    14. (n)
      BA moved to another town and commenced university in March 2016 and JN visited her at various times in the other town;
    15. (o)
      During the sexual relationship between JN and BA there were messages of a romantic and explicit sexual nature exchanged on Facebook messenger and mobile text messages;
    16. (p)
      JN and BA at times deleted messages they sent each other;
    17. (q)
      JN sent BA a Facebook message mentioning that he had proposed marriage to her;
    18. (r)
      BB, BA’s mother became aware of the relationship between JN and BA at the end of 2016 or early in 2017 and confronted BA about it;
    19. (s)
      JN had booked an overseas trip in November 2016 which BA accompanied him on from 9 January 2017 to 16 January 2017;
    20. (t)
      BB informed the School counsellor and a meeting was arranged between BB and HH, the Principal of the school;
    21. (u)
      Prior to that meeting JN had informed HH of the sexual relationship he had with BA on the afternoon of 16 January 2017 and again on the morning of 17 January 2017;
    22. (v)
      HH spoke with BB about the sexual relationship between JN and BA on 17 January 2017;
    23. (w)
      HH commenced an investigation into the allegation and issued JN with a Show Cause letter;
    24. (x)
      JN resigned from the School sometime in January 2017;
    25. (y)
      BA attempted to end the relationship over the period 13 and 14 February 2017. During this time JN sent her text messages, left voice messages and went to the address where she was staying and threatened to kill himself. These interactions were of such a nature that they resulted in BA obtaining a protection order against JN.
  2. [7]
    While the above facts are uncontroversial, JN maintained that his relationship with BA while she was a student was within the standards of behaviour expected of a teacher and that the relationship changed once she became a former student and at that time he was no longer bound by the standards of behaviour. Consideration then needs to be given to their relationships both during the period when BA was a student and when she became a former student.

JN and BA’s relationship while she was a student

  1. [8]
    JN in his statement[9] acknowledged that BA occasionally stayed up with him watching movies. He stated that these times were after the girls had gone to bed (both in JT’s room) and he would put a movie or TV show on. That BA would come through and join him and he did not request her, nor was he rude enough to tell a guest in his house to leave the communal living area. That BA would quite often attempt to engage in conversation of a personal nature (asking about what had happened between himself and former partners, his upbringing etc.). He states he elected that it would be inappropriate for him to have such conversations with a student and would keep conversation light and simple. Movies, books and music were typical conversations. He says he had no interest in BA in a romantic or sexual way at this time. JN said later in his statement that BA manipulated him with stories of an unhappy home life, drawing sympathy and empathy.
  2. [9]
    Having considered the statements of the other parties the Tribunal is satisfied that JN had on many occasions spent time alone with BA while she was a guest at his house, through her being his daughter JT’s best friend,  in circumstances where they were staying up late at night and watching movies and chatting. This is confirmed in JN and BA’s statements[10] as well as that of HL, JN’s then girlfriend.[11]  The Tribunal is satisfied that at this time JN was a teacher at the school at which BA was a student and had taught her in an earlier year. The Tribunal is satisfied on the basis of BA’s confirmation of JN’s statement that at this stage there was no physical contact between JN and BA and the topics of conversation were not in themselves inappropriate[12]. JN had indicated to HL that this time spent together occurred as a result of BA making noise which resulted in him coming out[13] whereas in his statement to the Tribunal JN said he would be in the lounge and BA would come out. The Tribunal is satisfied therefore, that at this stage JN was not being honest with HL about his relationship with BA. Having regard to the statements of HL, that she had noticed and made JN aware that she thought BA was flirting with him[14], the Tribunal is further satisfied that JN was aware that BA had an interest in him. The Tribunal notes that JN said to HL that he saw BA just like his daughters.

JN and BA’s relationship after she finished Year 12

  1. [10]
    JN stated[15] that from November 2015 BA was no longer a student at his school and that the conversations he had previously avoided with her were, he felt, no longer inappropriate and so he would answer her questions regarding his previous relationships. He states that these conversations could not have occurred between the time BA left school and early January because there was a lodger in his house and his parents had come over from England for his daughter JT’s graduation.
  2. [11]
    JN says:
    1. (a)
      he never instigated any conversation (when they did occur) and BA disclosed a considerable amount unprompted and unasked for;
    2. (b)
      that he is a very open person, and as BA was no longer a student he saw no harm in this;
    3. (c)
      he was naïve and was not prepared for the feelings that would arise as BA and he became closer; and
    4. (d)
      BA disclosed to him that when she was 16 she had a sexual relationship with her boss at the shop where she worked part-time, who was 37 years old and married and that she had had sexual interactions with several boys at the school, on school grounds, when she was between 14 and 16 years old.
  3. [12]
    JN says that initially during these conversations he had no interest in BA romantically or sexually but over time (albeit very rapidly) we grew closer and in February it was obvious that BA was flirting deliberately.
  4. [13]
    The Tribunal is satisfied that JN and BA continued to spend time alone together after she finished school; this is confirmed in both of their statements.[16] The Tribunal is satisfied that JN made a conscious decision as soon as BA graduated that he could discuss things with her which would not be appropriate to discuss with a student,[17] in particular about relationships and that BA considered some of the comments inappropriate. That this change was acknowledged by both JN and BA as changing the way they related to each other.[18] The Tribunal does not accept that JN had no interest in BA while she attended the School as there was no justification for a sudden change in the way they related to each other as a result of an event such as her finishing school and that he would have been waiting to discuss these things with her until he saw it as appropriate, that is that there was an element of premeditation in his choice of conversation with BA. The Tribunal notes that at this stage JN’s own mother was concerned about the time BA was staying at the house and wanting to spend time with JN and that this was justified by BA’s claimed bad home life.[19] The Tribunal is satisfied that this shows the closeness of the relationship between JN and BA at this stage as it was observable to outsiders and her staying over was justified by BA’s vulnerability, as a result of her home life.

JN and BA’s first physical interaction

  1. [14]
    JN stated[20] that he was not sure of the dates and believes that he and BA first kissed after February and that it was a mutual thing. There was no instigator and it just happened.
  2. [15]
    The Tribunal is satisfied that as a result of the inappropriate conversations that JN initiated with BA after she finished school the relationship became a physical one on or around the 13th of February 2016. The Tribunal notes that JN and BA had been conversing and flirting for some months and that this was the first occasion they had occupied the same physical space on the couch and were discussing inappropriate subjects.[21] The Tribunal accepts that the kiss that took place was a mutual one, in particular, as it lasted some time[22] and while JN may have initiated it there is no suggestion that it was not accepted. It is clear that with the conversations about relationships and flirting that JN and BA had been building to this kiss for some time. The Tribunal is also satisfied that despite what BA said about JN’s feeling he had made a mistake on the Friday night that clearly having regard to the statement from HL, BA reacted positively to JN’s return to the house on the Saturday night.[23]

JN and BA’s sexual relationship

  1. [16]
    JN stated[24] that BA and he did have a sexual relationship after February 2016 and that he visited her in the town she moved to for university. JN said this could not have been in June School Holidays as he was on a ten-day road trip with his then partner HL to another city. He said that BA was asked to house-sit for them when they took the road trip, which she did.
  2. [17]
    The Tribunal is satisfied based on the admissions by JN and confirmation by BA[25] that a physical relationship commenced between them after the night of the first kiss and this culminated in them beginning a sexual relationship at the end of February 2016. Following the night of the first kiss they would always be together on the same couch with BA’s feet on a pillow in JN’s lap and them always having some physical contact and they continued to discuss inappropriate topics which would result in kissing.[26] The Tribunal is further satisfied that it was the introduction of conversations about past relationships by JN into the topics that JN and BA would discuss which led to the sexual relationship between JN and BA as is evidenced by BA saying that it was the discussions about past relationships and kissing and flirting that led to BA and JN kissing. The Tribunal is satisfied based on the statements of JN and BA that this relationship continued when BA left to go to university and that JN would visit her at her new town and that BA would come back to the town JN resided in. [27] The Tribunal is satisfied that for the period from March 2017 to October 2017 JN was also in a relationship with HL[28].

Use of social media by JN and BA

  1. [18]
    JN stated[29] that there were several messages sent between BA and himself of a romantic and explicit sexual nature. Most of these were during or after September 2016. That the sexual content was something that BA requested of him. She was seemingly intrigued with the ‘50 Shades of Grey’ movies and books and wanted him to act out her fantasies. As he was in the business of making BA happy he would do this in message form. He said she is still clearly taken with the movies in question as her current boyfriend doesn’t look entirely dissimilar to Jamie Dornan. He said that BA was very sexually aggressive and although he had many sexual partners, he has never known anyone to push sexual boundaries as much as BA. She had needs and he was happy to meet them – all when she was, as the College clearly stated, a former pupil. He said as for romantic messages, these are things people say in the moment. He said some of the things he said were him being romantic and that in relationships we embellish our speech to make our partner feel valued.
  2. [19]
    He said[30] that he didn’t think BA and he became friends on Facebook or exchanged numbers until after December 2015. That they did agree to delete messages much later while in the relationship. He said that, to his shame, he did not want people to know he was cheating on his partner, HL. Moreover, he said BA was insistent they keep their relationship secret. Further he said there were several points at which he wished to declare their relationship openly but BA did not want JT or her family to know; BA was more insistent on deleting messages than he ever was.
  3. [20]
    JN stated at the hearing that he kept the relationship a secret because he didn’t want to hurt his children. He was embarrassed as an older man with a younger woman. When asked why he deleted the messages and asked BA to delete the messages, JN stated that he was embarrassed. He did not want his daughters to find out.
  4. [21]
    The Tribunal is satisfied that JN and BA did not use social media or phone contact while BA was a student which is confirmed by BA.[31] Their use of Facebook and text messaging commenced soon after BA graduated from school.[32] While JN said it commenced after December, HL said that there was contact from BA to JN while BA was at parties after her graduation.[33] BB confirmed that JN had become a Facebook friend of BA’s the day after she graduated based on the material she received by email.[34] JN has acknowledges that the messages became very sexualised and romantic after his relationship with BA started and there is evidence of comments from Facebook messenger to support this.[35] The Tribunal is satisfied based on the evidence of BA that she and JN’s use of Facebook and texting gradually increased following her graduation and that while the messages were initially only friendly they became more inappropriate as time progressed towards the start of their sexual relationship.
  5. [22]
    The Tribunal is satisfied that both BA and JN were in the habit of deleting messages and that this started as early as February 2016.[36] While JN states that he deleted his messages because he did not want HL or his children to know, this is inconsistent with his risk taking behaviour in having physical interactions with BA while his children and possibly HL were in the house. BA states that she was not concerned about deleting messages and that JN was concerned because he thought people may see them as inappropriate and put his position at risk. It is clear that BA kept her relationship with JN from her own family. Each of them, JN and BA, had reasons to delete the messages and so the Tribunal cannot be satisfied that it was only JN’s choice to delete messages.

The end of JN and BA’s relationship

  1. [23]
    JN acknowledged in his statement[37] and at the hearing that he acted inappropriately and that he was ashamed of his behaviour on 13 and 14 February 2017. JN said the circumstances were relevant and set those out in his statement. JN says he had lost his job, his career was on the line, and the one person whom he loved more than anything in the world was accusing him of being unfaithful. He said that, ironically, he had only been unfaithful once in his life and that was to HL.
  2. [24]
    He says he is not excusing his behaviour. He owns it and he is ashamed of it. But ‘in these final messages and moments of our relationship I was in a very dark place’. He explained that losing one’s job alone is a devastating mental and emotional ordeal and here he was losing his job, possibly his career and also the woman he had lost it all for. Anyone would have been under duress at this stage. He said this was not normal behaviour for him. Again, he says they were two consenting adults at that stage and he doesn’t believe he should have treated anyone like that. He alleges that the end of his relationship has absolutely nothing to do with whether or not he is a danger to children.
  3. [25]
    The Tribunal is satisfied that as a result of JN’s behaviour around the time that BA ended their relationship, BA experienced fear and was required to have an AVO placed on JN.[38] BB confirmed that BA started to get quite frightened by JN’s behaviour on 13 February 2017.[39] The circumstances surrounding the exposure of the relationship are set out in BB’s statement and she makes it clear that she prevailed upon BA to end the relationship because it was not appropriate for her to be in it having regard to the age difference between BA and JN.[40] The Tribunal is also satisfied that this was a time of high stress for JN having regard to the loss of his job and the other consequences of his relationship with BA being exposed. The evidence from DD, a colleague of JN’s confirms that JN was very upset around this time.[41] The Tribunal is satisfied having regard to the correspondence from Dr Bourke, which was filed in the suspension application that, JN was mentally unwell at this time suffering from depression. The Tribunal considers that JN should have obtained appropriate mental health support at this time to ensure that his behaviour did not impact on BA to the extent that it did.

Has the ground for disciplinary action been established?

  1. [26]
    The College in its submissions noted that the E(QCT) Act does not define the ‘standard of behaviour generally expected of a teacher’ and that the Tribunal has stated that:

The standard expected should be the standard “reasonably” expected by the community at large, as the actions of a teacher may impact directly upon the children of the community; and this in turn should reflect the standard that those in the teaching profession would expect of their colleagues and peers. QCT v Armstrong [2010] QCAT 709 at [33] cited in QCT v SEF [2017] QCAT 55 at [78], QCT v CMF (no.2) [2016] 290 at 24.

  1. [27]
    There is a body of decisions in this Tribunal where teachers have formed special relationships with students that have resulted in some sexual contact between them.[42] Often these matters involve communication between the teacher and student on Facebook or by text message or teachers tutoring students. In some cases a sexual relationship commences while the student is a student at the same school where the teacher teaches and in others after the student has finished school or one of them has left the school. In some cases the teachers have only had sexual intercourse on a few occasions or even once. And in others there has only been inappropriate behaviour such as inviting a student to skinny dip in the teacher’s spa,[43] or an afternoon drive where unwanted sexual advances were made and a teacher kissed a former student.[44] In the vast majority of cases there has been a finding that a ground of disciplinary action has been established.
  2. [28]
    In this case it has been submitted on behalf of JN that his sexual relationship with BA did not result from them being in a student-teacher relationship and that JN had contact with BA as a result of BA being at JN’s house through her friendship with JT. Further, it has been submitted that, in any case, the relationship between JN and BA commenced when she was a former student. As a result there should not be a finding that the ground for disciplinary action had been established.
  1. [29]
    Two cases were cited on behalf of JN involving professional registration law in respect of a doctor and a lawyer and the need for the conduct in question to arise from the professional relationship in regard to the doctor[45] and for a lawyer to be conduct which undermines trustworthiness, lack of integrity or they cannot be trusted to deal fairly within the system and that it must be limited to the context within which they appear.[46]
  2. [30]
    In that regard, the College submits that the ground is not constrained to conduct occurring within the professional setting, as the legislation explicitly allows a consideration of conduct which occurs outside of the teaching profession.
  3. [31]
    It is submitted on behalf of JN that none of these allegations relate to JN’s alleged behaviour:
    1. (a)
      In his capacity as a teacher;
    2. (b)
      At school; or
    3. (c)
      At any school-related activity; or exploiting his position as a teacher.
  4. [32]
    The College submitted that the standard of behaviour expected of teachers towards students is not confined to direct teacher student relationships, nor that it must be school related, the professional behaviour expected of teachers towards students extends beyond the classroom and their immediate teaching relationships.
  5. [33]
    The Tribunal notes that JN was a teacher at the school where BA was a student and had previously taught her and at all times before she graduated JN was aware that BA was a student. The method by which JN was able to form his relationship with BA is irrelevant. He was able to spend time alone with her in a context which was not related to her school activities when he was a teacher at her school. He clearly acknowledged that while she was a student it was inappropriate to have certain conversations with her showing that he understood that at that stage he was subject to the usual student-teacher professional boundaries.
  6. [34]
    It was submitted for JN that the College had not stated what the standards of behaviour were that he had breached. The College in its submissions in reply dealt with two decisions of the Tribunal. The first was the decision in QCT v Teacher FDA where the Tribunal stated at [40]:

The timing of the sexual relationship between Teacher FDA and the relevant student is important because there is a power imbalance that exists which takes time to dissipate as well as professional boundaries and standards expected of a teacher that extend beyond a student’s completion of secondary school. Although the evidence before us suggests that the relationship was not unwelcomed by the relevant student, Teacher FDA has failed to allow sufficient time for the teacher and student power imbalance to dissipate before entering into contact that was not appropriate for a teacher and student.

  1. [35]
    The College submitted in that case there was no direct-student teacher relationship, Teacher FDA left the school a year before the relationship commenced and the relationship became sexual in January following the student’s graduation. The College submitted that in this case there had been a direct teacher-student relationship and JN continued to teach at the School and that the power imbalance could be assumed to be greater than in FDA’s case. The relationship between JN and BA became sexual at the end of February (or the beginning of March) after BA graduated in November of the year before. That while this is a passage of an additional month or two from the students’ graduation in FDA’s case, it remains insufficient time for that power imbalance to dissipate in the circumstances.
  2. [36]
    The second case was that of QCT v DGM where the Tribunal said at [34]: ‘Teachers hold a special position of trust arising from the nature of their work. In particular, teachers exercise powers that have a significant impact on the lives of students.’
  3. [37]
    The College submitted that it is required by the Act to uphold the standards of the profession, maintain public confidence in the profession, and to protect the public, while having the welfare and best interests of children principally in mind.[47] Likewise, the Tribunal is required to exercise its powers in a way to ensure that the objects of the Act are met.
  4. [38]
    The College submitted at the hearing that:
    1. (a)
      teachers are expected to act professionally and ethically, to act as role models, to act in the best interests of students, and to protect children and young people from harm and from potential harm; and
    2. (b)
      the standard of behaviour expected of teachers extends beyond the classroom, beyond the schoolyard, beyond an immediate teacher-student relationship and beyond a student’s completion of secondary school.
  5. [39]
    The College submitted in regard to the power imbalance that exists that JN was in a position of power over BA by virtue of his role as a teacher, his professional standing in the community and the difference in age maturity and experience. And that the power imbalance existed regardless of BA’s willingness to participate in the relationship at the time. That the fact that JN attempted to conduct his affair with the former student in secret, suggests that he was aware of the standard and sought to avoid the consequences of his actions.
  6. [40]
    The College submitted that JN has failed to have regard for:
    1. (a)
      The trust that students, parents and carers, colleagues and peers, and the wider community placed in him as a teacher;
    2. (b)
      The potential harm to BA; and
    3. (c)
      The potential impact of his behaviour on:
      1. The reputation of the profession and the respect afforded to it;
      2. Public confidence in the profession; and
      3. The well-being of students – those who he taught and those who he came into contact with generally.
  7. [41]
    The Tribunal has found that a relationship with BA was established by JN while she was still a student and that as soon as she stopped being a student he determined that he was no longer bound by the professional boundaries of a student-teacher relationship. Clearly then JN knew what standards he was expected to meet as a teacher in regard to his behaviour with students. This change in the way JN and BA related set in motion the circumstances whereby over the period from November 2015 to February 2016 the relationship changed and became a sexual relationship. This was not a relationship that commenced after BA finished school. It was a relationship that commenced between a teacher and one of the students at the school where he taught. Where the student was a guest in his house and he was talking to and watching movies and TV while alone late at night with the student and she was in his house because she was his daughter’s best friend, who went to the same school as BA. The relationship progressed to a sexual relationship as a result of the removal of boundaries which JN knew were required with him being in a teacher-student relationship as soon as BA finished school. The fact that the relationship commenced while BA was still a student is the defining characteristic here. There was no gap between her finishing school and them meeting and starting a relationship. The relationship which they had, evolved because he thought that he was no longer required to be bound by student-teacher boundaries.
  8. [42]
    JN himself acknowledges his position in his statement[48] as follows:

I have always respected professional boundaries and even maintained those with BA when she was a student in my care. I never had any romantic or sexual interest in BA while she was at school. Our relationship changed, as relationships do with people who interact on different levels and in different situations. Nobody instantly falls in love with someone, regardless of what the movies tell us. We meet, become friends, relationships change and some blossom into love where others degrade into hate.  He admits, I had an intense romantic and sexual relationship with BA after she had left school. I did not pursue, nor was I interested in, her affections when she was a student. The thought was, and is anathema to me. I have never been interested in students in that manner. He goes on to say that, it is untrue to present me as an instigator and manipulator of this relationship. This is not true. The evidence suggests that BA had an agenda early on – she had manipulated me with stories of an unhappy home life, drawing sympathy and empathy. She was the one who came into MY living room and tried to instigate inappropriate conversation (which I stopped when she was a student). I was entitled to watch movies in my own home – in hindsight I should have left the room or sent BA to bed. I do not deny my responsibility in this relationship. I am a grown man and should have rejected BA’s advances – especially given her relationship to my family and the care I had previously given her as a father figure and teacher. Alas, I was flattered and weak. I came to have feelings for BA in ways that I should not have – but this was AFTER her time as a student at my school.

  1. [43]
    JN is clearly not being honest, BA was a student and he cultivated a relationship with her and as soon as he thought it was safe he allowed their conversation to include topics which have been described as inappropriate by him and from BA’s evidence it is clear that these conversations led to their sexual relationship. He acted in a premeditated way by introducing, and not continuing to avoid, those topics as soon as she left school. If it was accepted that BA was making advances on him this would in no way change the standards of behaviour required of him. In particular in those circumstances a teacher is required to maintain their professional boundaries and not in his own words be flattered and weak.
  2. [44]
    The Tribunal notes that there were other matters raised in the College’s submissions which were said to support the establishment of the ground for disciplinary action. Such as that the relationship was conducted in secret by not disclosing it and deleting messages. Having regard to the dynamics of the relationship, that is BA being the best friend of JN’s daughter and JN being in another relationship at the time this is understandable. The fact that BA could be described as JN’s mistress and his jealousy within the relationship was also raised. The dynamics of the consensual sexual relationship at a time when BA was a former student are not necessary to amplify the breach of the standards of behaviour here. They may illustrate the effects of the power imbalance though but this was not explored as there was no examination of BA as a witness. The question is whether the relationship has breached student-teacher professional boundaries and standards of behaviour. In this case it is around how and when the relationship commenced and was conducted while there was a teacher-student relationship and that initial period afterwards where direct findings have been made. The Tribunal has due regard to the submissions of the College in regard to the matters that JN has failed to have regard to which illustrate his breach of the standards of behaviour.
  3. [45]
    In this case the Tribunal has been satisfied that the relationship commenced while BA was a student at the school JN was a teacher and it was the change in the dynamic of the relationship which JN introduced as soon as BA finished schools by allowing the discussion of inappropriate topics which resulted in the relationship becoming a physical one in February.
  4. [46]
    There are also the issues around how JN conducted himself at the end of the relationship which he acknowledged was inappropriate. Clearly JN was having mental health issues and did not take appropriate steps to deal with his stress as result of the relationship being exposed and him losing his job. This resulted in an adverse impact on BA with her becoming so scared by his conduct that she took out an AVO against him.  Ultimately this occurred as a result of the effects of a relationship which should not have occurred because it was always tainted by the way it was initiated and while JN’s behaviour at this time was clearly unprofessional in that he did not take steps to ensure that his mental health was dealt with so that he did not act inappropriately the breach of standards occurred at a much earlier point.
  5. [47]
    The Tribunal is satisfied, having regard to the allegations made against JN, that:
    1. (a)
      in establishing a relationship with BA while she was a guest at his house at a time when she was a student at the school that he taught at and had previously been her teacher;
    2. (b)
      in allowing that relationship to change by introducing inappropriate conversation topics as soon as BA finished school; and
    3. (c)
      the result of JN and BA forming a sexual relationship;

JN has behaved in a way that does not satisfy the standard of behaviour generally expected of a teacher and the ground for disciplinary action has been established.

Sanction

  1. [48]
    The purpose of disciplinary proceedings are not to punish but to deter the teacher in question specifically and teachers generally from acting in ways which create a ground for disciplinary action. The Tribunal has previously stated:

The purpose of disciplinary action is not to punish the 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. [Education (Queensland College of Teachers) Act 2005 (Qld), s 3(1)] It is essential that persons registered as teachers do not pose a risk of harm to children. [Queensland College of Teachers v Genge [2011] QCAT 163 at [12]] 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”. [Queensland College of Teachers v Brady [2011] QCAT 464 at [55]].[49]

  1. [49]
    JN is an approved teacher,[50] having first been registered as a teacher in Queensland on 20 February 2003 and his registration is currently suspended by order of the Tribunal[51] under s 49 of the E(QCT) Act since the initial suspension by the College on 20 January 2017. The disciplinary action which the Tribunal may order where a ground for disciplinary action has been established in the case of an approved teacher is set out in s 160 of the E(QCT) Act, and allows the Tribunal:
    1. (a)
      to decide to take no further action;
    2. (b)
      if the teacher’s registration has been suspended, to end the suspension;
    3. (c)
      to issue a warning or reprimand to the teacher;
    4. (d)
      to cancel or suspend the teacher’s registration;
    5. (e)
      to make an order requiring the teacher to pay to the college, by way of costs, an amount the Tribunal considers appropriate having regard to the expenses incurred by the college in investigating the matter and the expenses incurred by the college in the proceedings before QCAT;
    6. (f)
      to make an order requiring the teacher to pay a penalty of no more than 20 penalty units;
    7. (g)
      to impose conditions on, amend or remove conditions on the teacher’s registration;
    8. (h)
      to make an order that a particular notation or endorsement about the teacher be entered in the register;
    9. (i)
      if the Tribunal cancels the teachers’ registration to teach, to make an order prohibiting the teacher from reapplying for registration for a stated period from the day the order is made or indefinitely; or
    10. (j)
      to make another order the tribunal considers appropriate, accept an undertaking from the teacher.
  2. [50]
    The College notes that the Tribunal must consider relevant previous decisions of which it is aware in accordance with s 158(2) of the E(QCT) Act. The College submitted that the Tribunal has recently observed that cases which were determined when the maximum period of prohibition was five years prior to amendment of the E(QCT) Act in 2012 are less helpful as the period may now be for a stated period or indefinitely.[52] The Tribunal notes that the ground for disciplinary action under
    s 92(1)(h) of the E(QCT) Act was prior to 8 September 2016 ‘not suitable to teach’ which related back to s 12(3) of the E(QCT) Act which states that a person is not suitable to teach if the person behaves in way that does not satisfy a standard of behaviour generally expected of a teacher. The amended ground is said to be wider in scope and apply to a broader range of conduct. The College submitted that the sanctions imposed under the previous ground of ‘not suitable to teach’ maintain their relevance for the current ground where a teacher might be found to be unfit to teach and cancellation and/or a period of prohibition is considered appropriate. The Tribunal notes that the submissions on sanction in the decision of QCT v DGM were based on the former ground in s 92(1)(h) and no issue was raised except in regard to the earlier cases as mentioned above.
  3. [51]
    The College submitted that the relevant precedents are those matters involving a teacher engaging in a sexual relationship with a student or recently graduated student. In those cases the sanctions involved a cancellation of registration and a prohibition from reapplying for registration for a period of between six and seven years and a notation on the register in regard to the requirements where the former teacher wishes to reapply for registration with costs orders made in several cases of between $2,500 and $5,000. The College submitted that in terms of the timing and commencement of the relationship, the most comparable case was QCT v FDA, where the teacher’s registration was cancelled with a prohibition of four years from the date of the order of the Tribunal. In that case a 27 year old teacher formed a close relationship with a 17 year old student, through frequent social media, telephone and SMS communication which progressed to a sexual relationship in January after the student graduated. There was no direct student-teacher relationship and the teacher had left the school a year before the relationship commenced.
  4. [52]
    The Tribunal notes that in QCT v FDA the Tribunal said at [59] that:

…had he been suspended as a teacher by the QCT, the relevant period of suspension would have been taken into account when determining appropriate orders. That Teacher FDA should not be disadvantaged in relation to the time that has passed between the conduct in question and the referral for disciplinary proceedings. We will therefore take the relevant time that passed into consideration in this matter as evidence of no further inappropriate conduct since referral.

  1. [53]
    In that case the conduct in question took place between October/November 2013 and February 2014 and FDA resigned from his teaching position and his registration ended on 30 November 2016 following the filing of the referral for disciplinary action on 15 November 2016. The Tribunal’s order prohibiting FDA from applying for registration for four years from the date of the order was made on 20 June 2017. Effectively, if the period of prohibition is related back to the date that FDA ceased to be registered as a teacher, it would be 5 years and 6 months.
  2. [54]
    In other cases where a teacher has been suspended, the Tribunal’s orders have been dated back to the suspension or the prohibition has been calculated from the date of the order after taking the period of suspension into account. For example, in QCT v DGM the Tribunal said at [55]:

We therefore make an order that DGM be prohibited from teaching for six years from the date of suspension, that being a period of four years from the date of this order.

  1. [55]
    The College further submitted that when determining sanction the Tribunal has said:

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 order of seriousness.[53]

  1. [56]
    The College submitted, having regard to that criteria, that JN was 42 years old when he commenced a relationship with BA who was 17 years old. The College made submissions in regard to what they saw as aggravating features in this case as follows:
    1. (a)
      JN was manipulative and controlling of BA;
    2. (b)
      The relationship was conducted in secret;
    3. (c)
      For more than six months, the relationship was conducted while the teacher was in an open relationship with another woman;
    4. (d)
      The relationship was for JN’s own sexual gratification with little regard to the potential emotional and psychological harm it was likely to cause BA; and
    5. (e)
      When the relationship was coming to an end, JN attempted to make BA feel guilty and responsible for his actions.
  2. [57]
    The College submits that these aggravating features justify a lengthier period of prohibition than was decided in the matter of QCT v Teacher FDA and submitted that the sanction should include a cancellation of JN’s registration as a teacher and prohibition from reapplying for five years from date of the order. The Tribunal notes having regard to the date of JN’s suspension that this would equate to a total period of seven and half years. The Tribunal considers that JN was manipulative in the manner in which the relationship was formed and there is evidence that later he may have been controlling. There were many reasons why the relationship was conducted in secret. The fact that JN was involved in another relationship was acknowledged by BA in her interview is this though a matter going to standards of behaviour expected of a teacher or personal morality. The messages between JN and BA show that there was a mutuality in regard to the gratification involved in the relationship and BA did not raise this as an issue in her interview. JN’s conduct at the end of the relationship was inappropriate and he acknowledged that. It of course was exacerbated by the fact that once the relationship was exposed it had a direct impact on his work as a teacher whereas a relationship breakdown in normal circumstances would not have had that added stressor. This is related to the fact that by being in the relationship JN was making himself vulnerable to disciplinary action. There are other aggravating factors which will be discussed below.
  3. [58]
    It is submitted on behalf of JN that:
    1. (a)
      the appropriate sanction is a period of suspension backdated to the time of JN’s original suspension and with his registration restored from the time of the decision;
    2. (b)
      the Tribunal should accept JN’s evidence that he was in love with BA and that his judgment was affected by this;
    3. (c)
      the Tribunal should have regard to the extremely severe consequences that JN has already suffered, namely the destruction of his relationship with his daughters, his financial ruin and the loss of his good reputation;
    4. (d)
      the evidence does not support that JN acted in a calculated or manipulative way regarding the relationship with BA;
    5. (e)
      the proper interpretation of the evidence is that he acted in a foolish manner that was entirely out of character for him and that the reason for this was his infatuation with BA; and
    6. (f)
      the conduct of the relationship and the manner in which it ended proves that JN cannot sensibly be characterised as having been in a positon ‘of power and influence’ over BA and to do so would be to ignore the evidence in this case in favour of a generic and formulaic view.
  4. [59]
    It was further submitted on behalf of JN that:
    1. (a)
      the case is distinguished from the cases cited by the College in that the only reason there was sufficient contact between BA and JN to begin a relationship was because of his daughter’s friendship with BA;
    2. (b)
      all of the cases cited in the College’s submissions involved some sexual contact while the student was still at school, or some inappropriate contact by social media while the student was still at school; and
    3. (c)
      this is not present in this case despite there being ample opportunity on the part of JN given that BA often visited his home.
  5. [60]
    Specific submissions were made on behalf of JN in regard to the cases cited by the College as follows:
    1. (a)
      In QCT v Teacher FDA the teacher involved did not co-operate with the investigation or QCAT proceedings. He had inappropriate social media contact with the student while she was still at school and met her at a party ‘comforting’ her over a breakup with her boyfriend. There is an obvious predatory and cynical character to his conduct that is not present in this case.
    2. (b)
      In QCT v DGM the teacher involved commenced the relationship during the students last few weeks at school. He paid the student money to lie to try and mislead the various investigations into his conduct. He also engaged in inappropriate conduct with another student. There is nothing of this character in the present matter; while JN kept the relationship secret, he did so because he feared the reaction of his daughters and because BA wanted to keep the relationship secret.
    3. (c)
      In QCT v SGS a sexual relationship commenced when the student was at school, as was the case in QCT v RTM [2016] QCAT 501, QCT v HMJ [2016] QCAT 447 and QCT v WAS [2015] QCAT 61 (in which the student was just 16 years old).
  6. [61]
    It was submitted that not one of those cases can be characterised as truly analogous to this case and that JN’s conduct is distinguished by the following:
    1. (a)
      The relationship developed because BA connect to JN’s daughter and presence in the home;
    2. (b)
      There was no predatory behaviour or chasing on behalf of JN. The relationship came to him;
    3. (c)
      There was no inappropriate relationship while JN was a student; and
    4. (d)
      JN’s genuine, though misguided, feelings for BA caused him to act in a way that was out of character.
  7. [62]
    The Tribunal notes JN in his statement and in evidence at the hearing expressed remorse and regret about the relationship and said that:
    1. (a)
      he would never do this again;
    2. (b)
      his children had been harassed and bullied and no longer talk to him;
    3. (c)
      he has hurt his family and HL with the commencement of the relationship;
    4. (d)
      he had not been able to get work for the vast majority of the time since his suspension and nearly lost his house;
    5. (e)
      he isn’t a stupid person and if there had been any harm to his children, BA or his family he felt remorse.
    6. (f)
      if BA had not been his daughter’s best friend the relationship would not have occurred; and
    7. (g)
      he was completely in love and besotted and at the end of it he was heartbroken and confused which lead to a spell of depression.
  8. [63]
    In this case JN a teacher has over a period of years formed a relationship with a student at the school where he taught, BA which ultimately became a sexual one. The mechanism by which JN was able to form that relationship was BA staying over at his house as a friend of JN’s daughter and JN taking the opportunity to spend time alone with the then student when everyone else in the house was asleep. With JN and BA watching TV and talking at first while she was a student about topics which were not inappropriate but as soon as she stopped being a student JN allowed inappropriate topics to be introduced which ultimately led to a physical relationship after BA became a former student.
  9. [64]
    JN was clearly aware that BA was flirting with him as that was brought to his attention by his then girlfriend HL in June 2015. The Tribunal has not accepted that JN did not have an interest in BA because of the premeditated way he introduced inappropriate topics as soon as she finished school and he thought it was safe to do so because they were no longer in a teacher-student relationship. In the same way phone and social media were not used until after BA finished school because that too would have been inappropriate. For it to be submitted on behalf of JN that the lack of social media use is a distinguishing feature in this case though belies the fact that JN had no need to use social media to communicate with BA as he was alone with her regularly and was able to create a relationship with her in that way. JN himself acknowledged that he should have left the room or told BA to go to bed but he claimed that he succumbed to her advances because he was flattered and weak.
  10. [65]
    The purpose of student teacher boundaries and standards of behaviour is that when a teacher is in a position where they may be tempted to do something inappropriate with a student they stop themselves, take stock of the situation, consider the possible risk of harm to the student and to their position as a teacher if they do something inappropriate and do the right thing, which in JN’s case as he has said would have been not to stay up with BA watching TV and chatting.
  11. [66]
    To try to use the state of being in love or besotted as an excuse for the behaviour is saying that I breached the boundaries and I should be excused because as a result I was no longer able to act rationally. Again he should not have put himself in a position where he was able to develop feelings for BA by not staying up with her alone.
  12. [67]
    There have been no cases cited on behalf of JN where in similar circumstances a teacher has had their sanction backdated to the date of suspension with the result that the teacher would be able to recommence teaching after the Tribunal had made its decision. In this case that would be a period of approximately two and half years of suspension. Having regard to the conduct here suspension and for that period is manifestly inadequate.
  13. [68]
    In this case there are clearly aggravating factors. JN had been a teacher since 2004 and was therefore an experienced teacher who should have been aware of his responsibilities to ensure that he acted within the boundaries of the student-teacher relationship and observed the appropriate standard of behaviour. Whereas Teacher FDA had only been registered as a teacher for 2 years.  JN over a long period of time allowed himself to have contact with a student which breached the student-teacher boundaries and acted in a premeditated way as soon as he thought he was no longer bound by those boundaries. Teacher FDA had inappropriate contact with a student for a short period only near the end of her schooling. For these reasons the appropriate sanction is greater than that in the case of Teacher FDA.
  14. [69]
    It has been submitted on behalf of JN that his personal circumstances in terms of the effect on his family with them being estranged from him and his financial circumstances and the loss of his reputation should be taken into account in regard to the sanction. While the Tribunal accepts that these have been the personal consequences of JN entering a relationship in breach of the standards of behaviour expected of a teacher there is no precedent for taking these personal consequences into account in the determination of the sanction. The purpose of disciplinary action is deterrence and the personal effects on an individual may not provide deterrence to the teaching profession generally. It must be clear that if the standards are breached that certain consequences will follow. These are meant to be objective consequences having regard to the breach of the disciplinary ground which is established not subjective ones having regard to the effect of that breach on an individual teacher.
  15. [70]
    The College has submitted that there should be a cancellation of JN’s registration and prohibition from him applying to be registered again for a period of five years from the date of the order. Having regard to the comparative cases and the ground for disciplinary action which has been established here the Tribunal is satisfied that this is an appropriate sanction for the above reasons.
  16. [71]
    The College has also requested that a notation be placed on the register so that should JN seek permission to reapply for registration as a teacher JN must provide a psychologists report dealing with the matters set out in the notation. These go to issues around differentiating of personal and professional relationships, the legal obligations of teachers and the professional standards and boundaries when working with young people, and how to assess risk and identify potentially problematic situations, trust and power issues, behaviour which would compromise the professional standing of a teacher and the effects of inappropriate relationships.
  17. [72]
    At the hearing JN showed remorse and wished that he had not conducted himself in regard to BA as he did. He stated at the hearing that he believed that if BA had not been his daughter’s best friend the relationship would not have occurred, it had nothing to do with teaching, and BA was a student at his school and he should have treated her as he was expected to treat any other student regardless of the context in which they met. He did not do this and he clearly needs to show that he has all of the understandings set out in the proposed notation before he is able to resume teaching after the end of the period of prohibition.
  18. [73]
    The Tribunal will therefore order the Register of teachers be notated in accordance with the draft submitted by the College.
  19. [74]
    The College has made an application for costs against JN in the amount of $5,000. The Tribunal may make such an order under s 160(2)(f) of the E(QCT) Act having regard to the expenses incurred by the College in investigating the matter and the expenses incurred in the proceedings before the Tribunal. The College advised that the cost of extracting information from BA’s phone alone was $1,721.12. The College submitted that it is funded by registration fees of teachers, the vast majority of whom conduct themselves responsibly. The College posits that it is appropriate to require teachers who have been found liable for disciplinary action to make a contribution towards the costs of the College in investigation of the matter and in bringing the disciplinary referral and that this would ease the burden on teachers generally.[54]
  20. [75]
    It was submitted on behalf of JN that no order for costs should be made in particular as his current financial situation is dire.
  21. [76]
    The Tribunal notes that there was some level of cooperation by JN in terms of not requiring witnesses for cross-examination and some substantial admissions which has lessened the time for the hearing.
  22. [77]
    Having regard to the costs which have been shown to be incurred by the College and JN’s cooperation and financial circumstances, the Tribunal considers that it is appropriate to limit the amount of costs payable by JN to $1,721.12 and for him to have a period of 12 months to pay those costs.

Non-Publication order

  1. [78]
    The Tribunal made an order on 24 April 2018 that the publication of any information which may identify JN, any of the relevant students or the relevant school is prohibited until further order of the tribunal. The Tribunal may make such an order in accordance with s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The Tribunal also made a non-publication order at the time of the suspension decision. The College does not oppose a non-publication except that it requests certain exceptions from it to ensure that the decision can be made available to the psychologist preparing the report, other teacher regulatory agencies and employers for the purpose of assessing the risk of harm to children that JN poses. It was submitted on behalf of JN at the hearing that if the College determined to re-register JN as a teacher after the end of the prohibition period and following its assessment of the psychologist’s report that it would be unfair to require that publication be available to employers.
  2. [79]
    The Tribunal considers having regard to the matters here involving children and the potential effects of disclosure on the parties generally that it is appropriate that a non-publication order be made. There is a need for some exceptions to ensure that JN may not be able to be placed in a position where he may harm children. That includes publication to other teaching registration authorities, and the Chief Executive (employment screening). The Tribunal considers that if the College has determined to register JN as a teacher at the end of his prohibition period then there should be no requirement for publication to potential employers of the details of this matter as the College by registering JN must be satisfied that he is suitable to teach.
  3. [80]
    The Tribunal notes that an order by it under s 66 overrides the provision of s 166 of the E(QCT) Act which would enable publication of JN’s identity and the outcome of the disciplinary matter on the College’s website or its annual report.
  4. [81]
    The orders of the Tribunal are:
  1. JN’s registration as a teacher is cancelled.
  2. JN is prohibited from applying for registration or permission to teach for a period of 5 years from the date of this order.
  3. A notation is to be entered in the register of teachers that should JN apply for registration or permission to teach, the application must include a psychologist’s report for which the following conditions are met:
    1. (a)
      Prior approval has been obtained from the Queensland College of Teachers for the preparation of the report by that psychologist;
    2. (b)
      The psychologist has been provided with copies of the disciplinary referral made by the Queensland College of Teachers to the Tribunal on 13 April 2018 and the Tribunal’s disciplinary orders and reasons;
    3. (c)
      The report includes an assessment  of JN’s appreciation of:
      1. Differentiating between personal and professional relationships;
      2. The legal obligations of teachers;
      3. The development and maintenance of professional standards and physical boundaries when working with young people;
      4. How to actively determine and implement professional boundaries with individual students;
      5. How to assess risk and identify potentially problematic situations early;
      6. How to initiate realistic solutions for avoiding the risk of harm to students;
      7. The nature and extent of the trust and power invested in teachers by students, colleagues, parents and the community;
      8. Behaviour that would compromise the professional standing of a teacher and the profession of teaching;
      9. The effects of inappropriate relationships with students; and
      10. The importance of adherence to the Queensland College of Teachers’ Code of Ethics;
      11. The report describes any therapy undertaken by JN since January 2017; and
      12. The report describes JN’s mental health at the time of the assessment.
  4. JN must pay the amount of $1,721.02 to the Queensland College of Teachers within the period of 12 months from the date of this order.
  5. Publication is prohibited of any information which may identify JN, members of JN’s family, BA and any of the witnesses or the relevant school, except that the fact that JN is the teacher named in the decision may be published to:
    1. (a)
      other teaching regulatory authorities;
    2. (b)
      any government authority dealing with the suitability of people working with children;
    3. (c)
      any psychologist preparing a report in accordance with these orders.
  6. The Tribunal’s reasons decisions may be published in de-identified format only.

Footnotes

[1] E(QCT) Act, ss 76, 77.

[2] Ibid s 98.

[3] Ibid s 97.

[4] Ibid s 49.

[5] Ibid s 55.

[6] Ibid s 158(1).

[7] Briginshaw v Briginshaw (1938) 60 CLR 336.

[8] E(QCT) Act, s 158(2).

[9] Exhibit 4, page 2, response 1.

[10] Exhibit 1, Exhibit C QCT Report, page 70 onwards, paras 51-123.

[11] Exhibit 1, Exhibit C QCT Report, page 123, paras 5, 6; Exhibit 5, para 1.

[12] Exhibit 1, Exhibit C QCT Report, page 75, paras 57, 58, 77, 87, and 88; page 77, para 95; page 78, paras 122, 123.

[13] Exhibit 5, para 1.

[14] Ibid para 2.

[15] Exhibit 4, response 2.

[16] Exhibit 4, response 2; Exhibit 1, Exhibit C QCT Report, page 79, para 129; page 80, para 157; page 81, para 158 and 159; page 83, para 187.

[17] Exhibit 4, response 2; Exhibit 1 Exhibit C QCT Report, page 82, paras 183, 185.

[18] Exhibit 4, response 2; Exhibit 1 Exhibit C QCT Report, page 83, paras 186, 187.

[19] Exhibit 5, para 5.

[20] Exhibit 4, response 3.

[21] Exhibit 1, Exhibit C QCT Report, page 81, 168-173; pages 83-84, paras 192-217.

[22] Exhibit 1, Exhibit C QCT Report, page 85, paras 224-227.

[23] Exhibit 5, para 6.

[24] Exhibit 4, response 4.

[25] Exhibit 1, Exhibit C QCT Report, page 91, para 303.

[26] Exhibit 1, Exhibit C QCT Report, page 89, paras 280, 281; pages 90-91, paras 294-300.

[27] Exhibit 1, page 93, paras 332-337.

[28] Exhibit 5, para 7.

[29] Exhibit 4, para 5.

[30]   Exhibit 4, para 6.

[31] Exhibit 1, Exhibit C, page 79, paras 140-141.

[32] Exhibit 1, Exhibit C, page 86, paras 244-255.

[33] Exhibit 5, para 3.

[34] Exhibit 1, exhibit C, page 64, para 11.

[35] Exhibit 1, pages 143, 144.

[36] Exhibit 1, Exhibit C, page 94, paras 3440-345.

[37] Exhibit 4, para 9.

[38] Exhibit 1, page 97-99, paras 377-391.

[39] Exhibit 1, Exhibit C, page 68, para 35.

[40] Exhibit 1, Exhibit C, page 67, para 33.

[41] Exhibit 1, page 112, para 8.

[42] These decisions include: QCT v Armstrong, QCT v McNamara [2010] QCAT 442, QCT v WAS [2015] QCAT 61, QCT v TSV [2015] QCAT 186, QCT v HMJ [2016] QCAT 447, QCT v RTM [2016 QCAT 501, QCT v Teacher FDA [2017] QCAT 224, QCT v FAS [2017] QCAT 226, QCT v SGS [2017] QCAT 383, QCT v Teacher CXJ [2018] QCAT 117 and QCT v DGM [2018] QCAT 194.

[43] QCT v McNamara.

[44] QCT v TSV.

[45] Hoile v Medical Board of South Australia (1960) HCA 30.

[46] Burgess v Board of Teacher Registration Queensland (2003) QDC 159.

[47] E(QCT) Act, ss 3, 233.

[48] Exhibit 4, page 6.

[49] QCT v TSV [2015] QCAT 186, [25].

[50] E(QCT) Act, Schedule 3 Dictionary, and in accordance with the certificate issued under s 223(e).

[51] QCT v JNJ [2017] 125.

[52] QCT v Teacher CXJ [2018] QCAT 177, [80]; QCT v DGM [2018] QCAT 194, [39].

[53] QCT v WAS [2015] QCAT 61, [38].

[54] QCT v RTM [2016] 501; QCT v WAS [2015] QCAT 61, [30].

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v JN

  • Shortened Case Name:

    Queensland College of Teachers v JN

  • MNC:

    [2019] QCAT 241

  • Court:

    QCAT

  • Judge(s):

    Member Allen, Member Deane, Member Grigg

  • Date:

    21 Aug 2019

Appeal Status

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

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