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[2010] QCAT 80
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2010-02-04
Mr J
Original judgment source is linked above.
Queensland College of Teachers v Ashton [2010] QCAT 80
Pursuant to section 160(2)(d)(h) and (j) of the Act, that Ms Ashton's teacher registration be cancelled, and that she be prohibited from reapplying for permission to teach for a period of 2 years from 14 October 2009 with a condition attached that prior to any future registration that she attend counselling or therapy with a registered psychologist, and a report be prepared addressing the following insight or knowledge she has gained regarding:
(1) Differentiation between personal and professional relationships.
(2) Development and maintenance of professional standards when working with young people and actively determining and implementing professional boundaries with individual students.
(3) Risk management and early issue identification of potentially problematic situations, as well as initiating realistic solutions for avoiding risk of harm to students.
(4) Personal and social behaviour that could compromise the professional standing of a teacher, and the profession of teaching.
(5) Understanding the affect of inappropriate relationships between teachers and students.
(6) An awareness of the power and balance between a teacher and a student, and;
(7) Developing insight into the circumstances in which the teacher's or student's own emotional needs could influence the nature of a relationship with a student.
(8) To protect the identity of the complainant, the name, address and school of the complainant child and the names, addresses and schools of all witnesses be subject to a non publication order under section 66 (1) of the Queensland Civil and Administrative Tribunal Act 2009.
Disciplinary, suitability to teach, cancellation, Section 92(1)(h), Section 158, Section 160(2)(d), (h) and (j)
Queensland College of Teachers represented by Dr Karyn Alton, Queensland College of Teachers
Ms Kylie Jane Ashton represented by Mr J Noud, instructed by Mr Rohan McAdam, Nyst Lawyers
Letter from Nyst Lawyers containing statements of MC, JS, HJ, and AM dated 13/10/2009
On 10 July 2009, the QCT suspended Ms Ashton's teacher, registration under section 49 of the Act, after the notification from the Department of Education and Training (DETA).
An investigation had been conducted by DETA following a complaint that while Ms Ashton was a teacher at a Queensland High School between 2007 and 2008, that she had maintained an inappropriate sexual relationship with a student from that school, HA.
The conduct included but not limited to inappropriate physical contact and viewing improper DVD material and that she failed to comply with the direction of her suspension issued on 26 August 2008 being that she not contact any persons involved in the proceedings, any of the witnesses, which included the student herself and also other teachers at the school, which is a normal requirement when the Department of Education and Training commence an investigation.
Students and staff were interviewed by DETA. That evidence, is compelling, particularly the evidence of BE, KD, SA and of the student herself, that these incidents did take place.
The student was born on 31 July 1991 so she was 16 to 17 years of age and Ms Ashton was 31 to 32 years of age at the time of the investigation in 2008.
The evidence that Ms Ashton had inappropriate physical contact with a student is supported by the evidence of SA, BK, BE and CN.
In relation to the allegation of "embracing" the student, at the school musical rehearsals, there is the evidence of, SA, BE, OB, and SL.
In relation to Ms Ashton hugging the student outside the staff room, at a time after the ski trip that was held in 2007, the QCT relies on the evidence of SA.
Further incidences of hugging between 2007 and 2008, are corroborated by the evidence of, again, BE, FG and the student herself.
In relation to Ms Ashton kissing the student in the costume area, at the school, there is evidence of BE that Ms Ashton rested her head on the student's chest and allowed the student's fingers to run through her hair.
In relation to the student holding hands with Ms Ashton there is the evidence of OB.
In relation to the kissing of Ms Ashton and the student at the school musical, there is evidence of SA, BE, FG and the student herself.
The allegation that Ms Ashton had inappropriate telephone Internet communication with the student, is supported by the evidence of BE and the student herself.
In relation to the allegation that Ms Ashton gave inappropriate special attention to the student, the QCT relies on the evidence of SA, KD, CN, OB, BC, BK, FG, LT, who is a student, and the evidence of the school timetable in relation to times and the fact that the student was not actually a direct student of Ms Ashton's. She was a student at the school but she was not directly a student involved in the classes of Ms Ashton. She was not involved in her class work.
In relation to the incident of Ms Ashton and the student watching a DVD together, called The L Word and being huddled underneath the blanket, the QCT relies on the evidence of WJ, RS, SA, the student herself and BE.
In relation to the allegation that Ms Ashton and the student would lie down together separately on pillows in the area which is attached to Ms Ashton's office, at the school the QCT relies on the evidence of BK, SA, FG, KD, CN and the student herself.
Evidence that the student actually attended at Ms Ashton's private residence is relied upon the statement of BE.
That Ms Ashton would drive the student home in her own vehicle, has relied upon the evidence of GE, OB and the student.
The evidence of the exchanging of gifts, the QCT relies upon the evidence of BE, GE, the student herself, CN and the student, LT and OB.
In addition to the concerning behaviour of itself, further breaches the policies of the employing authority Department of Education and Training.
The code of conduct of the Department of Education and Training is very specific, with guidelines and requirements for teachers to follow in their employment, which Ms Ashton is required to adhere to under section 18 of the Public Sector Ethics Act (1994). This requires that teachers in her position, comply with the code of conduct which is the Department of Education and Training.
The QCT's position is that these incidents took place. The witnesses are independent witnesses. What they have observed, seen or heard, shows that a ground for disciplinary action has been established.
The order sought by the QCT is that the committee make an order pursuant to section 160(2)(d), (h) and (j) of the Act, which will be to cancel Ms Ashton's teacher registration and then to prohibit Ms Ashton from reapplying for teacher registration or permission to teach for period of three years.
Attached to that separately is a condition attached to any future registration that Ms Ashton attend counselling or therapy with a psychologist and a report be prepared addressing the following insight and knowledge regarding Ms Ashton. That is set out on the front page of the written submissions and I'll address that further towards the end as far as the details of that are concerned. So that is the QCT position in relation to these proceedings.
MC stated that she had known Ms Ashton for 12 years. She had observed her work as a teacher in 2001 when she assisted her with a drama production. Notwithstanding the fact that she was aware of the matters before the TDC she was prepared to have Ms Ashton care for her 3 young children aged 7 4 and 2 1/2 she would continue to trust Ms Ashton with their care and provide support to her.
JS said she had known Ms Ashton for 30 years. They had studied together at QUT and worked together in out of school care. She observed Ms Ashton to be trustworthy and a "natural teacher."
AM is a school principal. He has known Ms Ashton for all of her life. He described her qualities as including "confidence, patience, compassion, understanding, dedication, unwavering support and willingness to help". He was aware of the matters before the TDC but said that he would be prepared to employ her."
HJ is also a teacher. She described Ms Ashton as "passionate about her profession and an excellent teacher." She said that Ms Ashton had confided in her before the hearing and she was aware of the matters before the Committee but regardless of the outcome she would continue to support her.
At the hearing her counsel made the following submissions:
Ms Ashton resided with her mother and father, who provided a very stable loving environment, where her parents encouraged her to follow her ambition to teach drama. She has held an interest in drama and the principles of the dramatic arts from her youth.
She resided with her parents and attended school from 1982 to 1988. She then attended a college from 1989 to 1993. When she was a student at school the seeds, of her desire to become a drama teacher were planted in that she was an arts counsel leader at that school.
During her time at school she worked at Target for a long period of time from 1991 to 1997. Ms Ashton is someone who has steadily built a reputation for herself as being a hard worker and someone who respects the work ethic and someone who has never, in her life, had any periods of time where she has been unsure about what direction her life is taking, although this incident has created great distress for her, and has already had a bearing upon her emotionally, but also financially as well.
She is now currently working at a men's clothes store. However, she is trying as best as she can to lift her weight and carry on through this time and then, hopefully, again one day teach and bring her skills back into a teaching environment. During her school years she was involved in theatre and drama classes. When she left school she attended an External College for a year and then went to university from 1995 to 1998 where she studied for, and was awarded, a Bachelor of Senior Education. During her time in university she sustained her lifestyle through taking various part-time jobs and she put herself through university and she worked hard for those few years living off the smell of an oily rag, but got herself through university and continued to follow her dreams to be a drama teacher.
She has held also various types of employment in the drama area and they have included working at the Playground and Recreation Association which, was akin to a day care centre, however, it was a day care centre where Ms Ashton was able to apply her skills as a drama teacher and also provide drama exercises for a lot of the students who were aged between five and 17. She was also involved in the Act One Youth Theatre, which is a youth development drama class which she ran independently for a number of years, where again she had the opportunity to one her drama skills and impart her love and desire for drama on to other students who were also interested.
She worked for a company called the Fun Factory, which hosted a variety of children's birthday parties and also care facilities and she then began her teaching career at the high school in 1999 and she had been there for some 10 years. As has been conceded by the QCT there have been no previous allegations or findings made against her. She is someone with good character. She took one year off during her time at the high school where she travelled and taught across Europe, where she lived in London for six months and worked as a nanny where she had the care of two children who were aged four and two. She then came back to Australia where she continued her work at the high school in 2006.
During her time at the high school in addition to being a classroom teacher she took on various leadership roles and was a sporting house leader, a year level coordinator, assisted in the coordination of school camps, coordinated school musicals and drama night events, coordinated the school student council and leadership program, was involved in the implementation of a new boy's development program, work in behaviour management classroom, coach debating and was generally very active in the school and local community. That is backed up by what the student, WJ, said and also what KD said, that she was a hard working teacher.
School life was very central to her and she wanted to make a genuine contribution.
Ms Ashton was prepared to engage in the sort of psychological counselling that has been envisaged but said that a shorter penalty should apply.
Kylie Jane Ashton was born on 23 June 1976, and is presently aged 33 years.
She was registered as a teacher in Queensland on 7 April 1999.
On 22 August 2008 the QCT received information pursuant to section 76 of the Act that Ms Ashton was having a sexual relationship with a student.
On 27 January 2009 the QCT received notification of the conclusion of the investigation from DETA. The investigation substantiated that while employed as a teacher at a Queensland high school in the period between 2007 and 2008 Ms Ashton: * (a) maintained an inappropriate sexual relationship with a student from the school; * (b) had inappropriate contact with a student from the school including but not limited to inappropriate physical contact and viewing improper DVD material * (c) failed to comply with a direction of her suspension issued on 26 August 2008.
On 26 June 2009 the QCT received a notification under section 77 of the Act advising that Ms Ashton had resigned from DETA effective 12 May 2009.
On 10 July 2009, the Director of QCT suspended her registration pursuant to section 49 of the Education (Queensland College of Teachers) Act 2005.
On an unknown date between 2007 and 2008 Ms Kylie Jayne Ashton would give neck massages to HA and allow this to be reciprocated.
That on a date unknown in April or May 2008 during the school musical rehearsals Ms Kylie Jayne Ashton intimately embraced HA in her office.
On an unknown date after the ski trip in 2007 Ms Kylie Jayne Ashton hugged HA outside staffroom.
On an unknown date between 2007 and 2008 Ms Kylie Jayne Ashton hugged HA on various occasions.
On unknown date sometime between 2007 and 2008 Ms Kylie Jayne Ashton kissed HA in the costume room.
On an unknown date between 2007 and 2008 Ms Kylie Jayne Ashton rested her head on HA's chest and allowing HA's fingers to run through her hair.
On an unknown date between 2007 and 2008 Ms Kylie Jayne Ashton and HA held hands.
On or about the 1 May 2008 Ms Kylie Jayne Ashton kissed HA after the school musical
During 2007 and 2008 Ms Kylie Jayne Ashton spent excessive time with HA.
That on the 23 June 2008 Ms Kylie Jayne Ashton was lying under a blanket with HA in a classroom alone whilst watching a DVD called "The L Word".
On an unknown date between 2007 and 2008 Ms Kylie Jayne Ashton would allow HA to watch DVD material in her office.
On various unknown dates between 2007 and 2008 Ms Kylie Jayne Ashton and HA would lie down together and separately on pillows in her office.
During the 2008 June/July holidays HA attended Ms Kylie Jayne Ashton's private residence.
On an unknown date between 2007 and 2008 Ms Kylie Jayne Ashton would drive HA home in her vehicle.
The student who was aged 16 to 17 years came from a troubled background. Her history is set out in the evidence of SA, the teacher who made the complaint. She said that the student had been sexually abused by her step father. Her mother was an alcoholic and drug addict. The student had caring responsibilities for younger siblings. She had difficulties with her mother and had moved out of home. She was therefore a vulnerable student who lacked familial support and was therefore socially isolated.
Ms Ashton was aware of the student's troubled background. She was also aware of the student's sexual orientation. The student identified as a lesbian and KD said that this was known within the school community[3]. Ms Ashton and KD attempted to help the student. What started appropriately as the encouragement and support of a needy student developed beyond appropriate student teacher boundaries.
Ms Ashton at the time was 31 to 32 years of age. She had been a teacher since 1999 so she was not a youthful or inexperienced teacher. She should have had sufficient maturity, judgement and training to avoid the conduct.
The relationship was not discreet and was well known within the school. Numerous witnesses refer to rumours within the school community. SA, a senior teacher said she felt compelled to act once she realized that rumours of the relationship had spilled outside the school.
Ms Ashton developed a physical relationship with the student hugging and kissing her. SA observed them outside the classroom hugging under a blanket after a ski trip in 2007. SA observed them arrive at school staffroom together between 7.30am and 7.45am and give each other neck rubs.
The relationship involved emotional as well as physical intimacy. Teacher CN observed the student waiting outside the classroom "nearly every day, quite a lot of lunchtimes and sometimes after school." Ms Ashton told the student she loved her.
The evidence of teacher BE was that she saw a text message from the student to Ms Ashton in early 2008 which was intimate describing the teacher as "my sunshine," and "Bella". She observed the student massaging Ms Ashton. She said she had observed texting between the teacher and student in class.
Ms Ashton and the student were observed by a former student WJ watching a sexually explicit DVD of a television series called "The L Word", a sexually explicit series about lesbian couples, on a laptop at school.
FG, a teacher drove the student and Ms Ashton home and observed them cuddling. He had seen them hugging at school on one occasion.
Ms Ashton openly expressed her feelings to KD who warned her about the appropriateness of the relationship, telling her to "back off and keep your distance[4]. Ms Ashton had confided in him saying "Yes Ï know I'm getting too close to her, I'm a bit scared about my feelings."
RS the guidance officer said she received information from other teachers. She had no firsthand knowledge of inappropriate conduct but followed up with Ms Ashton and warned her that it could result in investigation and loss of employment. Unfortunately despite these warnings Ms Ashton persisted in her relationship with the student.
Eventually SA, made a notification to the principal. The Department of Education and Training then commenced an investigation.
The SP3 report, Report of Suspected Sexual Abuse of a student by an employee document, records Ms Ashton as 32 years old and the student as 17 years old at the time of the investigation. There was a significant age disparity between the teacher and student.
That information and materials before the Committee are unchallenged. The submissions made by Ms Ashton go to penalty rather than disputing the facts set out in the notice.
There is corroboration of witnesses in each of the instances set out in the notice as summarised by the QCT.
The issue for the TDC is whether a ground for disciplinary action has been established, pursuant to section 158 of the Act. The ground for disciplinary action in this case is whether Ms Ashton is suitable to teach under section 92, subsection (1)(h) of the Act.
The Considerations for the TDC are contained in sections 11 and 12 of the Act. The relevant provision is section 12 (3)
Without limiting section 11 or subsection (1) or (2), a person is not suitable to teach if the person--
(a) behaves in a way that does not satisfy a standard of behaviour generally expected of a teacher; or
(b) otherwise behaves in a disgraceful or improper way that shows the person is unfit to be granted registration or permission to teach.
Brilliant. She was enthusiastic. She was encouraging. She was always, you know, there for extra time or if you needed to go and see her for any help or anything like that. She was always going out of her way to help you out. It was kind of - yeah, came as a bit of a shock.
Kylie is a younger teacher, popular teacher, like, the kids do like her.
Counsel for Ms Ashton argued that a sanction or penalty of 3 years duration could work against the best interests of children, because it would deny students continued guidance and instruction from Ms Ashton and that should be considered when contemplating what is in the best interest of the children.
He conceded there is need for guidance and counselling and in psychological treatment and Ms Ashton was prepared to accept a condition to that effect.
There is ample evidence before the Committee within the investigation report and from her witnesses that Ms Ashton was an effective and competent teacher. She was popular with students. However with that gift comes responsibility for the young and the vulnerable.
The Committee has taken into account the evidence of MC and JS that they would trust her with their infant children. That she is capable of caring for young children is not in dispute. The relationship between Ms Ashton and the student was mutual and consensual. The student was aged over 16 years so it was not illegal. However it betrayed the code of conduct of the employing authority[5] and the QCT. Given her length of service Ms Ashton must have known that the relationship was wrong. She received warning to that effect from colleagues such as KD and RS.
The evidence of SA was that after Ms Ashton was suspended the student went "downhill emotionally". There was concern within the school that the student might harm herself. There is therefore evidence that the student was profoundly affected by the relationship and its aftermath. Perhaps that consequence was inevitable but as a mature and experienced teacher Ms Ashton should have foreseen the consequences of her actions.
Ms Ashton offered no explanation for the conduct. She failed to express remorse and contrition.
The jurisdiction exercised by the TDC is protective, not punitive. There are dual reasons for this. In Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR at 201-202, the High Court said:
Although it is sometimes referred to as the "penalty of disbarment" it must be emphasized that a disbarring order is in no sense punitive in character. When such an order is made, it is made from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that the abuse of privilege may not lead to loss of privilege.
(a) to uphold the standards of the teaching profession; and
(b) to maintain public confidence in the teaching profession; and
(c) to protect the public by ensuring education in schools is provided in a professional and competent way by approved teachers.
(a) establishing the Queensland College of Teachers; and
(b) conferring on the QCT functions and powers about--
(i) granting registration or permission to teach to persons; and
(ii) taking disciplinary action against approved teachers; and
(iii) monitoring compliance with and enforcing this Act; and
(c) establishing the Office of the Queensland College of Teachers to help the QCT in the performance of its functions.
The disciplinary process is therefore partly child protection legislation designed to ensure that only those suitable to do so work with children. Ms Ashton's diminished self esteem and loss of income are secondary considerations when implementing that purpose.
Having regard to the seriousness of the misconduct and Ms Ashton's failure to mitigate the seriousness of it, or suggest strategies for avoiding a repeat of this conduct the committee is satisfied that she should be prohibited from reapplying for a period of 2 years from the date of the hearing.
There are no directly comparable matters decided by the TDC. In the decision made in F heard by the TDC on 21 October 2009 the teacher was prohibited from reapplying for a period of 18 months but that case involved grooming the student with gifts and notes and did not involve a prolonged physical relationship. This case is more serious taking account of the physical contact between the teacher and student and the length of the relationship. The fact that the teacher knew of the student's vulnerable background is also a factor that exacerbates the seriousness of this case.
Although counsel for Ms Ashton requested that the disqualification period be backdated to the date of the suspension the Committee did not find that this should occur. First Ms Ashton gave no evidence suggesting that there were mitigating facts in her favour. Second she gave no evidence to suggest remorse or insight.
To assist her to gain insight into her conduct and to ensure that she is suitable to return to teach the Committee believes that she would be assisted by a course of counselling or therapy with specific focus on managing future teacher/ student relationships.
Clearly the type of counselling envisaged in the condition will take some time to achieve its purpose and is unlikely to be effective without considerable dedication and self examination on behalf of the teacher. Any counselling will commence post the hearing so the commencement date should start from that point.
On reapplying for registration Ms Ashton will need to demonstrate that she has learned from this experience and has identified strategies to avoid a repeat of this behaviour.
[1] This section existed at the time of the hearing but has since been repealed.
Queensland College of Teachers
Ashton [2010] QCAT 80
(1938) 60 CLR 336