Queensland College of Teachers v DKA
[2024] QCAT 363
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- Queensland College of Teachers v DKA[2024] QCAT 363
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Queensland College of Teachers v DKA[2024] QCAT 363
Queensland College of Teachers v DKA[2024] QCAT 363
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v DKA [2024] QCAT 363 |
PARTIES: | Queensland college of teachers (applicant) v DKA (respondent) |
APPLICATION NO/S: | OCR195-23 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 21 August 2024 |
HEARING DATE: | 24 July 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Member Lumb, Presiding Member Bridgman Member Robyn Oliver |
ORDERS: |
|
CATCHWORDS: | Where teacher engaged in sexual relationship with former student – where teacher suspended from teaching – where teacher has violated professional boundaries – whether ground for disciplinary action is established – what proposed disciplinary action should be taken Education (Queensland College of Teachers) Act 2005 (Qld), s 3, s 7, s 49, s 55A, s 92, s 158, s 160, s 201 Briginshaw v Briginshaw (1938) 60 CLR 336. Queensland College of Teachers v FDA [2017] QCAT 224 Queensland College of Teachers v HMJ [2016] QCAT 447 Queensland College of Teachers v PPK [2019] QCAT 59 Queensland College of Teachers v RTM [2016] QCAT 50 Queensland College of Teachers v SGS [2017] QCAT 383 Queensland College of Teachers v WAS [2015] QCAT 61 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
Introduction
- [1]The Respondent is currently registered to teach in Queensland, having been first registered on 11 June 2015.
- [2]On 31 January 2020, the Applicant suspended the Respondent’s registration under s 49 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘the QCT Act’). The Respondent is an ‘approved’ teacher as defined.[1]
- [3]On 25 March 2020, the Respondent’s suspended registration was continued by the Tribunal.
- [4]On 17 April 2023, an investigation report was given to the Professional Capacity and Teacher Conduct Committee (‘the Committee’) under s 201(2)(c) of the QCT Act (which considered the investigation report without making a decision).
- [5]On 20 May 2020, the Applicant referred the matter to the Tribunal under s 97 of the QCT Act. Under this provision the Tribunal must decide whether a ground for disciplinary action against the teacher has been established.[2]
The alleged misconduct
- [6]The allegations are that the Respondent commenced an inappropriate personal and romantic relationship which progressed to a sexual relationship with a former student, with the initial contact occurring soon after the student had graduated from high school.
- [7]The facts and circumstances forming the basis of the ground for disciplinary action are stated as follows:
- On around 10 December 2019, the Respondent obtained the personal phone number of a former student (‘Allegation 1’).
- On or around 16 January 2019, the Respondent exchanged text messages which were inappropriate, overfamiliar and intimate, with the former student (‘Allegation 2’).
- Between 15 March 2019 and 31 March 2019, the Respondent commenced intimate physical contact with the former student (‘Allegation 3’).
- From a date between 17 June 2019 and August 2019, the Respondent engaged in sexual intercourse with the former student at their respective dwellings (‘Allegation 4’).
- [8]By directions dated 15 August 2023, the Respondent was directed to file a response to the referral, including agreed and disputed allegations, including any material he intended to rely on, by 28 September 2023. By email correspondence from the Respondent’s solicitor to the Tribunal sent on 27 September 2023, copied to the Applicant, it was stated that the Respondent declined to provide any response to the allegations; did not wish to participate further in the process; and would abide by the order of the Tribunal.
- [9]On 24 October 2023, the Respondent was directed to file copies of any written submissions in response to the submissions of the Applicant by 19 November 2023. By email correspondence from the Respondent’s solicitor to the Tribunal sent on 28 November 2023, copied to the Applicant, it was stated that the Respondent elected to not file submissions in response to the Applicant’s submissions and would abide by the order of the Tribunal.
The relevant provisions and principles
- [10]A ground for disciplinary action against a relevant teacher exists under section 92(1)(h) of the Act if:
the person behaves in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher.
- [11]If the Tribunal is satisfied that a ground for disciplinary action exists against the teacher, one or more of the actions listed under s 160 of the QCT Act may be taken.
- [12]Although the ‘standard of behaviour generally expected of a teacher’ is not defined in the QCT Act, the Tribunal has previously said:[3]
…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.
- [13]It is necessary to consider the objects of the QCT Act:[4]
- to uphold the standards of the teaching profession;
- to maintain public confidence in the teaching profession; and
- to protect the public by ensuring education in schools is provided in a professional and competent way by approved teachers.
- [14]Teachers have a responsibility to not engage in conduct which harms or has the potential to harm students. ‘Harm’ and its various types and causes are identified in s 7 of the QCT Act. All teachers are given training on a yearly basis to recognise these types and causes of harm, and the potential for its occurrence.
- [15]
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 student’s completion of secondary school.
- [16]In determining this matter, the Tribunal must be satisfied that the allegations have been established on the balance of probabilities having regard to the nature of the individual allegations of material fact made by the Applicant, and the likely consequences which would follow should they be accepted, consistently with Briginshaw v Briginshaw.[6]
Is a ground for disciplinary action established?
- [17]The Respondent has not challenged any of the Applicant’s material or submissions.
- [18]The former student graduated from High School on 16 November 2018. The former student had been taught by the Respondent between 2017 and 2018.
- [19]With respect to Allegation 1, it is plain that there is an error in the date and that it was intended to refer to 10 December 2018. The material[7] indicates that on 30 November 2018, the Respondent made contact with the former student by sending an Instagram request to follow the former student. The plain inference is that the Respondent had obtained the former student’s mobile phone number in order to make contact with the former student. We are satisfied that Allegation 1 has been established.
- [20]With respect to Allegation 2, the social media and text messages which are alleged to be inappropriate, overfamiliar, and intimate included encouraging underage alcohol consumption; discussion in relation to commencing an intimate relationship; and sexualised communication. We are satisfied that Allegation 2 is established based on, among other matters, the matters set out in paragraph 33 of the Applicant’s submissions and the material referenced therein.
- [21]With respect to Allegation 3, having regard to the material referred to in paragraph 36 of the Applicant’s submissions we are satisfied to the requisite standard that the Respondent commenced intimate physical contact with the former student, however, we are only satisfied to the requisite standard that this contact commenced on 30 March 2019.[8]
- [22]With respect to Allegation 4, having regard to the material referred to in paragraph 39 of the Applicant’s submissions we are satisfied to the requisite standard that the Respondent regularly engaged in sexual intercourse with the former student, however, we are only satisfied to the requisite standard that this commenced in July or August of 2019.[9]
- [23]Having regard to the matters set out in paragraphs [18]-[22] above, we find that the Respondent has 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 and a ground for disciplinary action exists under s 92(1)(h) of the QCT Act.
Appropriate disciplinary action
- [24]
The purpose of disciplinary action is not to punish a teacher. Instead, it is to further the objects of the QCT Act. Those objects 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. 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’.
(citations omitted)
- [25]Every year teachers are required as part of their teaching registration requirements to undergo child protection training. This can take the form of Mandatory All Staff Training (MAST), and include documents such as the Code of Conduct for the Queensland Public Service, the Child and Student Protection Policy, Student Protection Procedure, Professional Boundaries: A Guideline for Queensland Teachers, and the Code of Ethics for Teachers in Queensland. There can be no reasonable excuse for any teacher to not be informed of the key messages set out to keep children free from harm.
- [26]The Applicant seeks the following orders upon a finding that a ground for disciplinary action is established: cancellation of the Respondent’s teacher registration; prohibition from reapplying for registration or permission to teach until 31 January 2027 (being seven years from the date of suspension); that the Register of Teachers be endorsed with a notation requiring the provision of a psychological report satisfactory to the Applicant addressing various specified matters; that the Respondent pay $6,012.63 in costs to the Applicant within 12 months of the date of the order.
- [27]We consider the following factors to be relevant to the appropriate disciplinary action to be imposed:
- the Respondent initiated contact with the former student shortly after graduation; although there is no evidence of any previous social contact prior to graduation, and no evidence of prior grooming behaviour;
- the Respondent had previously taught the former student;
- there was a power imbalance between the Respondent and the former student, the Respondent being 28 years of age at the date of initiating contact and the former student then being approximately 17½ years of age (but 18 years of age when the sexual relationship commenced); whilst we accept that the former student was a ‘willing participant’ in the relationship, as the Applicant put it, we accept the submission of the Applicant that, as has said by the Tribunal, the power imbalance reduces ‘the quality and relevance of the student’s consent to be involved in the relationship’ (and, we would add, former student).[12] Although it appears that the Respondent and the former student considered the relationship to be ‘a bit of a grey area’,[13] we consider that the Respondent should have appreciated that the conduct was such as to attract disciplinary action. The imbalance is spelled out in the Guideline for Queensland Teachers.[14]
- the Respondent had held teacher registration for more than four years;
- in 2019, the relationship progressed to an intimate relationship and then to a sexual relationship, the latter commencing within approximately 8 to 9 months after the former student graduated, and continued on a long-term basis.
- the Respondent appears not to have engaged in any secretive conduct in relation to the relationship; rather, the Respondent displayed honesty in acknowledging the relationship to his administrative superiors, as well as to the former student’s close family members, including her parents;
- without the benefit of the Respondent’s responses to the allegations, the Tribunal cannot gauge the Respondent’s insight or remorse (or lack of) in this matter; however, we accept the Applicant’s submission that in the absence of such a response, there is no basis for finding that the Respondent has demonstrated that he has fully accepted the gravity of his behaviour or conduct;
- the Respondent has not challenged the allegations and has indicated that he intends to abide by the decision of the Tribunal and this has reduced the impact on potential witnesses and has made the proceeding more efficient;
- the Respondent has been suspended since 31 January 2020;
- there is no previous disciplinary history of which the Tribunal is aware.
Previous decisions of the Tribunal
- [28]In making its decision about whether a ground for disciplinary action is established, QCAT must have regard to any relevant previous decision by a practice and conduct body of which QCAT is aware.[15]
- [29]When determining sanction, the Tribunal has said:[16]
Ultimately of course, each case turns on its own facts. There is a range of relevant factors: the age of the teacher, the age of the student, the nature of the conduct, any psychological vulnerability, the level of cooperation in the proceedings, and so on. It is therefore not easy to rank cases in terms of seriousness.
- [30]In their submissions to the Tribunal, the Applicant identified previous cases to help the Tribunal with guidelines for the appropriate sanction in this matter.
- [31]Queensland College of Teachers v SGS[17] concerned an experienced, 42 year old teacher and a 17 year old student, over the course of five months during which time the student was still at school. The teacher indulged his fantasies with a vulnerable student, requested photos and sent thousands of text messages, including messages of future marriage plans. The numerous boundary violations by this teacher, the large age gap of approximately 25 years, that the teacher knew of the student’s vulnerability in addition to her youth, led to a sanction of seven years prohibition. This case of SGS can be distinguished from the present because of the deep dishonesty on many levels, the boundary violations towards the profession, and the potential harm to the student.
- [32]Queensland College of Teachers v RTM[18] involved a 35 year old experienced and married teacher and an 18 year old former student. The teacher taught the student when she was in Year 11 at school. Their relationship began during ‘schoolies’ week. Phone numbers were exchanged, gifts and nicknames were given. Crude banter and extensive secretive deceitful conduct continued. RTM was prohibited from teaching for seven years. RTM’s lack of remorse, lack of insight and significant deception were major aggravating factors.
- [33]Queensland College of Teachers v HMJ[19] concerned a 49 year old teacher who was head of department, experienced, and entered into a sexual relationship with a 17 year old vulnerable student days before the student graduated. This behaviour is considered far more serious than that of DKA, with HMJ being prohibited from teaching for six years.
- [34]Queensland College of Teachers v WAS[20] concerned a 36 year old teacher who exchanged more than 10,000 romantic and sexual Facebook messages with a vulnerable 16 year old student. This teacher was issued with a six year prohibition from teaching. The age and experience differences, together with the significant vulnerabilities of the student were recognised.
- [35]Queensland College of Teachers v FDA[21] (‘FDA’) concerned a 27 year old teacher with three years of teaching experience. The former student, and recent school graduate, was 17 years old and was not taught by the teacher. This teacher did not reapply for registration following the end of his five-year registration period. It was disclosed that there was considerable communication between the teacher and former student during the time she was still in Year 12 at school. The teacher attended a post formal party, gave the former student numerous gifts including money, and communicated regularly on SMS, Snapchat, Instagram and Facebook. The Tribunal found that the teacher and former student entered into a sexual relationship from January 2014, the year following the former student’s graduation. The Tribunal prohibited FDA from applying for registration or permission to teach for a period of four years from the date of the order.
- [36]FDA has a number of similar features to the present case; the similar ages of the teacher and former student; the experience level of the teacher; the recent graduation of the former student; the many boundary violations of communication, leading to escalation into a sexual relationship; and that the teacher did not file information to aid the Tribunal in its decision.
- [37]The present case has one aggravating feature which is not present in FDA, namely that FDA did not teach the former student. However, in FDA there were other aggravating factors which are not present here, being first, there were Facebook communications between FDA and the relevant student before the student graduated, and second, there was a level of secrecy and dishonesty with the administration.[22] The Tribunal finds the case of FDA to be slightly more serious than the present case.
- [38]But for the time that has elapsed since the date on which the teacher registration of the Respondent was suspended, the Tribunal would have been minded to impose a period of prohibition for no longer than four years from the date of suspension. However, given that it is now more than 4½ years since the date of suspension, the Tribunal considers that the appropriate disciplinary action is to:
- issue a reprimand to the Respondent pursuant to s 160(2)(c) of the QCT Act;
- end the suspension from the date of this Decision s 160(2)(b) of the QCT Act.
- [39]Further, given the circumstances of the present case including the lack of demonstrated insight and remorse and acknowledgement of boundary violations, the Tribunal considers it appropriate, pursuant to s 160(2)(h) and s 160(2)(k) of the QCT Act, to impose a condition on the Respondent’s permission to teach that, prior to returning to teach, the Respondent must provide a psychologist’s report, satisfactory to the Applicant, which addresses the following:
- Whether the psychologist is satisfied the Respondent has adequately understood and addressed the following matters:
- differentiating between personal and professional relationships;
- the legal obligations of teachers and tutors;
- the concept, and importance, of professional boundaries;
- the development and maintenance of professional standards and professional boundaries when working with students;
- an awareness of what constitutes appropriate and inappropriate communication and behaviour with students;
- the impact of inappropriate communication, conduct and relationships upon students, families, schools and the profession;
- the need to protect children and students from physical, psychological and emotional harm;
- risk assessment and early identification of potentially problematic situations and venues;
- how to achieve realistic solutions to avoid the risk of harm to students;
- the power granted to a teacher;
- the extent and nature of trust invested in a teacher by students, colleagues, parents and the community;
- conduct that would compromise the professional standing of a teacher and the teaching profession;
- the importance of full adherence to the Queensland College of Teachers Code of Ethics;
- the psychologist’s professional opinion regarding the likelihood, if any, of the Respondent engaging in conduct that would be contrary to the need to protect children and young people from physical, psychological or emotional harm.
- confirmation that the psychologist was provided with copies of:
- the Tribunal’s orders and reasons for decision; and
- the referral of disciplinary proceedings under s 97 of the Act.
- Whether the psychologist is satisfied the Respondent has adequately understood and addressed the following matters:
- [40]The Applicant seeks an order for costs. It particularised various heads of cost. It was not clear to the Tribunal how some of these costs arose and were calculated, such as those for a directions hearing and the on-the-papers review. Regardless, the Tribunal considered that it was not in the interests of justice under s 102 of the QCAT Act nor appropriate under s 160 of the QCT Act to make an order for costs given:
- the finding of the Tribunal that misconduct was established and the consequential findings and orders against the Respondent;
- the significant delay in finalising the proceedings, exceeding four years;
- the relatively straightforward nature of the proceedings;
- prejudice to the Respondent given the period of suspension experienced is longer than the Tribunal would have ordered;
- the difficulty making an assessment of the financial circumstances of the Respondent;
- the fact the Respondent submitted to the Tribunal’s jurisdiction reducing the evidentiary burden on witnesses and the Applicant;
- the fact the Applicant consented to a hearing on the papers, significantly simplifying the proceedings.
- [41]Against that background, we make no order as to costs consistent with section 100 of the QCAT Act.
- [42]Finally, the Tribunal notes the existing non-publication order made by the Tribunal on 24 August 2023 which continues.
Footnotes
[1] QCT Act, Schedule 3.
[2] QCT Act, s 158(1).
[3] Queensland College of Teacher v Armstrong [2010] QCAT 709, [33].
[4] QCT Act, s 3.
[5] Queensland College of Teacher v FDA [2017] QCAT 224, [40].
[6] (1938) 60 CLR 336.
[7] BORD, pp 227, 229.
[8] BORD, pp 178-179.
[9] BORD, p 100.
[10] [2016] QCAT 447.
[11] At [59].
[12] Queensland College of Teachers v PPK [2019] QCAT 59, [14].
[13] APPLICANT Documents, p 102, [475], [479].
[14] Professional Boundaries: A Guideline for Queensland Teachers, August 2019, p 6.
[15] QCT Act, s 158(2).
[16] Queensland College of Teachers v WAS [2015] QCAT 61, [38].
[17] [2017] QCAT 383.
[18] [2016] QCAT 501.
[19] [2016] QCAT 447.
[20] [2015] QCAT 61.
[21] [2017] QCAT 224.
[22] FDA, [14]-[15].