Queensland College of Teachers v CMK [2019] QCAT 271

[7] In matters such as this disciplinary proceeding, the standard of proof of evidence is based on the case of Briginshaw v Briginshaw, where the appropriate standard is the reasonable satisfaction of the decision-maker with that degree of satisfaction varying according to the gravity of the fact to be proved[1]. The allegations in this matter are serious and will be examined in this light.

[8] Schedule 3 of the Act states that a relevant teacher means an 'approved teacher', or a 'former approved teacher', and that an 'approved teacher' is one who holds registration or permission to teach. CMK was an 'approved teacher' and a relevant teacher at the time of the misconduct[2]. She has since become a 'former approved teacher'.

[9] Section 92 of the Act sets out the grounds for disciplinary action in practice and conduct matters. Numerous grounds are listed including:

the person behaves in such a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher[3].

'Standard of behaviour' is not defined in the Act but has been addressed by the Tribunal in a previous matter:

...the standard expected should be the standard 'reasonably' expected by the community at large, as the actions of a teacher may impact directly on 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[4].

[10] The QCT believes that a ground for disciplinary action exists and that this is not a QCT practice and conduct matter. The referral to QCAT by the QCT's Professional Capacity and Teacher Conduct Committee (PC&TCC) has been made under section 97 of the Act.

[11] The issues for the Tribunal are whether a ground for disciplinary action against the teacher is established under section 158 of the Act, and if so, the appropriate action to be taken against the teacher[5].

[12] The QCT has referred the Tribunal to previous matters dealt with by the Tribunal which illustrate consideration of the protection of students from harm and as to not harming students.

[13] 'Harm' is defined in the Act as follows:[6]

(1) Harm, to a child, is any detrimental effect of a significant nature on the child's physical, psychological or emotional wellbeing.

a) physical, psychological or emotional abuse or neglect; or

b) a series or combination of acts, omissions or circumstances.

[14] There is an expectation that teachers will act professionally with students at all times, and in addition to building a rapport with students, teachers must maintain appropriate professional boundaries:

Teachers are always in a professional relationship with their students whether in school or non-school settings. Although certain behaviours, when first commenced, may not breach the boundaries of a professional teacher-student relationship, these behaviours may progress incrementally to a point that could result in a breach of professional boundaries. This can be a particular risk for teachers who:

• Have a 'dual' personal/professional relationship with the student outside the school, including, for example, being the student's sports coach or instructor in other extra-curricular activities that the student may be involved in[7].

[15] Following on from this guideline, the Tribunal found in Queensland College of Teachers v SGS, that[8]:

the teacher's relationship with their student is a professional one and all of the contact between teacher and student has an educational context and does not in particular, become sexualised.

[16] The Tribunal has handed down many decisions addressing the inappropriateness of sexual relationships between teachers and students and has discussed at length the standards and ethical principles that such behaviour breaches.

[17] The Tribunal has also considered numerous cases involving relationships between teachers and former students. In Queensland College of Teachers v FDA,13 the Tribunal found: 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 students completion of secondary school.

[18] The QCT notes that, between 2013 and 2015, whilst employed as a teacher at her school, CMK engaged in inappropriate and/or overfamiliar behaviour towards senior dance students including: spray tanning students both at school and at students' homes without the knowledge or consent of her supervisor; discussed with students about parties she attended and underage drinking; discussed her breast enhancement surgery and lifted her top to expose her sports bra; discussed her social life and boyfriends with students; told students about an incident at a nightclub while intoxicated.

[19] During 2015, whilst employed as a teacher at her school, CMK engaged in an inappropriate and/or over-familiar relationship with the former relevant student.

[20] From late 2015, CMK engaged in an over-familiar and/or intimate relationship with the former relevant student.

[21] On unknown dates during late 2016 to early 2017, CMK and the former relevant student were physically intimate while staying in London, England.

[22] The QCT submits, and the Tribunal agrees, that this behaviour falls well below the standard of behaviour generally expected of a teacher by the community, and by members of the teaching profession.

[23] The Tribunal finds that a ground for disciplinary action under section 92(1)(h) of the Act is established.

[24] The Act requires that making an assessment of conduct relies on keeping in mind the welfare and best interests of children[9]. The Tribunal is required to additionally take into account the objects of the Act which are:

(a) to uphold the standards of the teaching profession;

(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[10].

[25] The parties are in agreement that CMK engaged in the misconduct, that the conduct fell below the standard of behaviour expected of a teacher and that a ground for disciplinary action is therefore established under section 92(1)(h) of the Act

[26] The QCT submits four previous decisions of the Tribunal for consideration as to sanction, having regard to the level of seriousness of the behaviour in this matter.

[27] The first case, Queensland College of Teachers v HL [2013] QCAT 631, concerned a female teacher, in her twenties, over a two-year period in relation to a group of Year 11 and 12 female students. The teacher engaged with the students as friends in terms of the language she used/allowed. She formed a close relationship with one student, discussing personal problems and relationships with boys. She also accompanied that student and her family on a family holiday. The Tribunal ordered cancellation of her registration and prohibited her from reapplying for a period of four months from the date of the order and ordered that a satisfactory psychologist assessment and report be submitted with any future application for registration.

[28] We consider CMK's behaviour to be more serious and damaging that that of HL.

[29] The second case, Queensland College of Teachers v Thomas Joseph Derbyshire [2011] QCAT 536, concerned a 26-year-old male teacher and his conduct towards a 17-year-old (Year 12) student in Term 4 of her final year of school. The teacher did not teach the student but had supervised classes that she was in. The teacher had left the school when inappropriate communication began through Facebook during Term 4. The relationship became sexual and they met several times. The Tribunal considered that the teacher was young and inexperienced, and the age difference was not as large as some other matters. The teacher cooperated with the investigation and disciplinary process and showed genuine remorse. The Tribunal ordered cancellation of his registration and prohibited him from reapplying for a period of three years from the date of his suspension and ordered that a satisfactory psychologist assessment and report be submitted with any future application for registration.

[30] We consider CMK's behaviour to be of a similar level to that that of Mr Derbyshire.

[31] The third case, Queensland College of Teachers v Teacher FDA [2017] QCAT 224, concerned a 27-year-old male teacher and a former Year 12 student (aged 17) where he taught. There was no direct teacher/student relationship. The Tribunal found that the teacher entered into a relationship with the student from November of her final year at school (around graduation) and a sexual relationship began in the January of the following year. The Tribunal found that, while the relationship was not unwelcomed by the student, the teacher had failed to allow sufficient time for the power imbalance to dissipate and demonstrated a lack of insight in relation to the professional standards expected of a teacher. The Tribunal also took into account the teacher's lack of cooperation with the disciplinary process. The Tribunal ordered cancellation of his registration and prohibited him from reapplying for a period of four years from the date of the order and ordered that a satisfactory psychologist assessment and report be submitted with any future application for registration.

[32] In comparison with the current matter, the behaviour in FDA concerned a teacher and student of similar ages as in the current matter, similar levels of misconduct and similar disregard of appropriate professional boundaries. CMK's cooperation with the investigative and disciplinary process along with her agreement in the Agreed Statement of Facts is a mitigating and differentiating factor.

[33] The fourth case, Queensland College of Teachers v DRR [2012] QCAT 671, concerned a 31-year-old male teacher and a 17-year-old student. The teacher had taught her in Year 11 and Year 12. They commenced communication through the school email account during school. After graduation they began personal emailing and texting that rapidly escalated in intensity to sexual communication. Although a sexual relationship did not eventuate, the Tribunal found the teacher's behaviour to be "grooming behaviour". The Tribunal found no evidence of significant remorse or insight from the teacher. The Tribunal ordered cancellation of his registration and prohibited him from reapplying for registration for a period of 30 months from the date of decision and ordered a notation be entered into the register regarding the receipt of a satisfactory psychologist assessment and report be submitted with any future application for registration.

[34] In the current matter, CMK was in her late twenties and had been a registered teacher for around 5 or 6 years at the time of the relevant conduct. She was over-familiar with students and failed to maintain appropriate professional boundaries in terms of her interactions, conversations and conduct with them. CMK's conduct in relation to the former relevant student was significantly more serious and germinated in the school context where he was known to the respondent as a student and she was known to him as a teacher.

[35] The QCT submits that there are mitigating features for the Tribunal's consideration that include her admissions to and remorse for the misconduct as set out in the Agreed Statement of Facts.

[36] Having regard to the seriousness of this matter, we consider that a period of 3 years from the date of CMK's suspension is appropriate along with conditions regarding any future application for registration.

[37] The QCT submits it is not in the public interest for information to be published which would allow the former students in this matter to be identified and agrees that the identification of CMK and/or the school would make it possible to identify those former students. The Tribunal accepts those submissions of the QCT.

[38] It is submitted for the former teacher that a pseudonym should be adopted for her in these Reasons so as to not allow identification of her, and therefore the other persons which the Order seeks to protect. The pseudonym CMK is adopted in these Reasons for that purpose.

[39] Therefore, we will make orders under section 66 of the QCAT Act that publication is prohibited of:

(a) the contents of all documents produced to the Tribunal (except as recited in the published Reasons for the decision), and

(b) information that may identify the teacher, the relevant student, the relevant school, staff members, former staff members of the relevant school, parents of students, or former students of the relevant school, any witnesses who engaged with the disciplinary/investigative processes.

[40] The Tribunal finds that a ground for disciplinary action under section 92(1)(h) has been established, and makes orders as follows:

1. A disciplinary ground is established.
2. Under section 161(2)(c) of the Act, CMK is prohibited from applying for registration or permission to teach for a period of three (3) years (from the date of suspension of her employment)
3. The Register be endorsed with the following notation that any application by CMK for re-registration must be accompanied by a detailed and independent psychologist's report addressing the following issues:
   • (a) Differentiating between personal and professional relationships;
   • (b) The legal obligations of teachers and tutors;
   • (c) Development and maintenance of professional standards when working with young people and actively determining and implementing professional boundaries with individual students;
   • (d) Risk assessment and early issue identification of potentially problematic situations and venue as well as initiating realistic solutions for avoiding the risk of harm to students;
   • (e) The extent and nature of the student, colleague, parental and community trust inherently invested in a teacher;
   • (f) Personal and social behaviour that would compromise the professional standing of a teacher and the profession of teaching;
   • (g) The effect of inappropriate relationships with students;
   • (h) The trust and power granted to a teacher;
   • (i) The importance of full adherence to the Queensland College of Teachers Code of Ethics and Professional Boundaries Guidelines; and
   • (j) An indication from the psychologist about whether the psychologist is satisfied that CMK has adequately understood and addressed the above points
4. CMK must bear all costs associated with compliance with the Tribunal's orders.
5. Other than to the parties to the proceeding, publication of any information which may lead to the identification of CMK, the relevant student or relevant school is prohibited until further order of the tribunal**.**

[1] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361-362.

[2] Schedule 3 of the Education (Queensland College of Teachers) Act 2005 (Qld)

[3] Ibid s 92(1)(h)

[4] Queensland College of Teachers v Armstrong [2010] QCAT 709, 33.

[7] Professional Boundaries: A Guideline for Queensland Teachers, Queensland College of Teachers, May 2016 (Updated 2017), 5.

[8] Queensland College of Teachers v SGS [2017] QCAT 383