Department of Education, Training and Employment v HS [2014] QCAT 387

CITATION: Department of Education, Training and Employment v HS [2014] QCAT 387 PARTIES: Chief Executive, Department of Education, Training and Employment (Applicant) v HS (Respondent) APPLICATION NUMBER: CML044-14 MATTER TYPE: Childrens matters HEARING DATE: 29 July 2014 HEARD AT: Brisbane DECISION OF: Senior Member Endicott DELIVERED ON: 31 July 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. HS is prohibited from entering three specified state schools for the period up to and including 31 December 2014. 2. Publication of the name of parent who is the subject of this order and of the names of the schools covered by this order is prohibited. CATCHWORDS: EDUCATION – where parent of primary school student assaulted the principal of the school, assaulted another person at the school and made threats of further violence against the principal – where parent was charged with criminal offences arising from his conduct – where a plea of guilty had been entered to charge of assault occasioning bodily harm and other charges struck out PROHIBITION ORDER – where order sought to prohibit parent from entering all Queensland State schools – whether parent presented an unacceptable risk of harm to safety or well- being of school communities in general – whether parent was likely to cause harm or -- 1 of 9 -- 2 apprehension of harm or disrupt good order or management of a school Education (General Provisions) Act 2006 (Qld) ss 341, 353 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66 APPEARANCES and REPRESENTATION (if any): APPLICANT: Chief Executive, Department of Education, Training and Employment represented by Matthew Hickey of Counsel instructed by the Crown Law Office RESPONDENT: HS - self represented REASONS FOR DECISION [1] HS pleaded guilty on 22 May 2014 to a charge of assault occasioning bodily harm. No conviction was recorded and he was fined $3,000. It is a consequence of that assault that an application has been made to the tribunal under section 353 of the Education (General Provisions) Act 2006 (Qld) (Education Act) for an order prohibiting HS from entering the premises of all State schools in Queensland for 1 year. HS opposes that application. At the start of the hearing the applicant amended the application to seek, as an alternative outcome, an order prohibiting HS from entering specific schools under section 341 of the Education Act. [2] The application is not seeking to punish HS for a second time for his actions but is designed to protect the safety and well-being of staff, students and other persons who are part of a school community. A prohibition from entering school premises is an effective way to provide that protection. To make such an order, I must be satisfied by the evidence that it is more likely that not that HS presents an unacceptable risk of harm (section 353) or that HS is likely to cause harm or apprehension of harm or to disrupt the good order and management of a school (section 341). [3] The factual background supporting this application is necessarily the context in which findings have to be made on whether there are risks in permitting HS to enter school premises and whether any such risks are unacceptable and should be responded to by prohibiting HS from entry onto school premises. The facts of the assault were set out to the Magistrate at the time of hearing the charge and as it was a plea of guilty, the facts were not challenged by HS. [4] The facts presented to the court were that on 26 November 2013 Mr P was working as the principal at a school in the Brisbane region. Mr P had known HS for about four years as HS’ stepson had attended the school -- 2 of 9 -- 3 during that time. On 26 November 2013 the stepson was suspended from school for three days due to his behaviour. At 1:10pm HS entered the school office and requested to speak to the principal about his stepson’s suspension. HS was told that the principal was in a meeting. HS indicated he wanted to speak with the principal and an administration officer called the principal on the phone and informed him that HS was at the school office. [5] The administration officer also told the principal that HS was very angry and upset. The principal left the meeting and approached HS who was standing outside the school office. HS initially appeared to be calm and composed. HS began to speak to the principal and he quickly became extremely aggressive towards the principal. HS pointed his finger at the principal and walked into the principal’s personal space. Mr P attempted to calm HS down but HS continued to yell and swear at the principal. [6] HS stood in the doorway of the office and the principal attempted to enter the office by walking past HS. As the principal passed HS, he was punched in the left side of his face by HS. The principal and HS were then separated. HS approached the principal after throwing the punch and yelled at the principal, calling him a dog and using obscene language. HS swung his right arm with a closed fist towards the principal but stopped before hitting him again. [7] I accept those facts as an accurate version of what happened on 26 November 2013 and note that version had been accepted by HS by his plea of guilty. Two other charges were brought against HS arising from the incident on 26 November 2013 but no evidence was offered at the hearing by the prosecutor and the charges were struck out by the magistrate. [8] I cannot go behind the finding that HS was guilty of an assault occasioning bodily harm. However I am not restricted in determining this application under the Education Act to the evidence presented to the magistrate. I can take into account evidence that I find credible and cogent to the issues to be decided by me as to the existence of any unacceptable risks arising from HS being permitted to enter into school premises. Such evidence may include evidence of further actions of HS that may have related to the other charges which were struck out after no evidence was offered by the prosecutor. [9] Seven affidavits had been filed in support of this application made under the Education Act. Four of the persons who had provided affidavits were called to be cross-examined at the hearing of the application. The evidence from two of the remaining witnesses was not challenged and was essentially formal in nature. [10] HS had not required one of the witnesses to the assault, Mr Nassif, for cross-examination at the hearing. I was asked by the applicant to proceed on the basis that Mr Nassif’s evidence was unchallenged by HS as he had -- 3 of 9 -- 4 allowed the evidence to go into the hearing without testing that evidence by cross-examination. [11] From comments that he made, it may well be that HS had assumed that the evidence of Mr Nassif would not be taken into account in this application as the charge that HS had assaulted Mr Nassif had been struck out. However the evidence relevant to this application is wider than the evidence presented to the magistrate at the hearing of the one remaining criminal charge. Mr Nassif was a direct witness to the incident on 26 November 2013 and his evidence is relevant to the application. I will proceed on the basis that the evidence of Mr Nassif was unchallenged by HS as Mr Nassif was not required to be present at the hearing and could not respond to any testing of his version of events. [12] The extent of aggressive and violent behaviour by HS on 26 November 2013 must be considered in order to anticipate what risks his ongoing presence on school premises would have. The past in this way can form a valid basis to anticipate the future. According to the evidence filed in the tribunal, the full extent of the aggressive and violent behaviour of HS on that day was not disclosed to the magistrate. [13] The school administration officer, Mrs Goodwin, gave evidence that HS had come to the office and had demanded that Mr P speak to him: ‘I don’t care where he is. I’ll pull him out’. Mrs Goodwin was not shaken from her version of this verbal exchange during cross-examination. Mrs Goodwin also gave evidence that HS had displayed an aggressive attitude by the manner of his walk and by his words leading up to and during his conversation with her. She had phoned through a message for Mr P that HS wanted to speak to him and gave a warning about HS’ attitude and anger. [14] Mr P gave evidence that he left his meeting and went to meet HS who was standing outside the front door to the reception area of the administration block. After a few words of greeting, HS’ demeanour changed and he appeared very aggressive and came right up to Mr P. Mr P gave evidence that HS told him that the time for talking was over, that he had to get the teacher down who had touched his stepson and that he had suspended his stepson and had not listened to him. All the time HS used obscene language and was shouting at Mr P. [15] Mr P gave evidence that he asked HS to calm down on at least four occasions and told him that he would call the police and asked HS to leave. Mr P gave evidence that HS moved out of the doorway and Mr P walked past him to go inside the reception area. HS then gave a sudden blow to the left side of Mr P’s face. [16] Mr P’s version of the incident was challenged during cross-examination by a suggestion put by HS that he, HS, had been calm at the start of the discussion and that he had been intimidated by Mr P’s actions and attitude. Mr P did not agree with the suggestion. -- 4 of 9 -- 5 [17] Johanna Harris, a teacher at the school, gave evidence that she was standing next to Mr P and HS during the incident. She corroborated Mr P’s evidence that the conversation escalated quickly with HS standing close to Mr P, yelling at him and calling him a liar using obscene language. She gave evidence that Mr P had turned to walk past HS when he was punched on the left side of his face by HS. Her evidence was not challenged on the incident. [18] HS does not deny that he punched Mr P. He denied becoming emotional during the conversation between them but gave evidence that he had been intimidated by Mr P who had stood in his personal space during the exchange between them. HS gave evidence that he had reacted in response to the intimidation from Mr P and that he had punched the principal. [19] I do not accept evidence on this point given by HS where that evidence is contradicted by evidence from other persons who directly witnessed the incident. I accept the evidence of Mr P and Ms Harris. The incident was directly witnessed by Ms Harris who corroborates what Mr P has said. It is incredible to suggest on the evidence that Mr P was effectively the aggressor in the exchange and that HS had been left with no reasonable option but to respond violently to the some form of intimidation from Mr P. [20] The evidence of HS of his being calm until provoked by intimidating behaviour from Mr P highlighted the lack of any insight that reflection on the incident should have brought. He demonstrated by his evidence on this point that he had interpreted the placating actions of the principal as a perceived slight that had to be responded to by violence. He had not demonstrated any change from that viewpoint at the hearing despite his own repeated assertions that he had acted foolishly. [21] The punch was not the end of the actions of HS on 26 November 2013. Mr Nassif gave evidence that he had run out of the school administration office after hearing a scream. He saw Mr P holding his face and that the principal was bleeding. Mr Nassif gave evidence that he intervened and that HS swore at him, grabbed his shirt, punched him in the chest with a closed fist and pushed him. [22] Although HS complained at the hearing that he had been assaulted by Mr Nassif, that complaint is disingenuous. I accept the evidence of Mr Nassif that he made some minor physical contact with HS in order to get his attention but the reaction from HS was disproportionate. [23] I do not accept the submission made by HS that his actions were responding to aggression from Mr Nassif. The atmosphere in the space outside the administration office would have been highly charged following the assault on Mr P and it was reasonable for a bystander to try to calm things down to avoid further violence and disruption. [24] It is again disturbing that HS has not developed any insight into the effects of his behaviour and that he explained his actions in relation to Mr Nassif -- 5 of 9 -- 6 as self defence to what are clearly calming, non aggressive and placating actions on the part of that person. [25] The final part of the incident occurred when HS followed Mr P into the office area and yelled further abuse at him. Mr P gave evidence that HS continued to demand that he bring down the teacher who was accused of physically handling his stepson and that he had showed no respect to the boy’s mother earlier that day. Mr P gave evidence that HS swung his arm with a closed fist towards his head but stopped his action without making contact. [26] Mr P gave evidence that HS walked out of the office and made a threat as he left that he would drag Mr P out of the front of the school and treat him like a dog unless his stepson was permitted to come back to school the following day. Mr P gave evidence that HS had made a further threat to hunt him down and kill him. [27] HS’ evidence made no mention of the second attempted punch or the threats to harm Mr P. He did not challenge or deny this evidence from Mr P at the hearing. Mr P’s evidence was essentially corroborated by Ms Harris, Mrs Goodwin and Mr Nassif as well as by a Ms Wakefield who had heard the exchange but did not directly witness the incident. [28] I accept the evidence of Mr P and the other witnesses at the scene. HS was not an impressive witness. He was selective with his evidence and he did not go into detail of what had occurred. A reasonable inference could be drawn that he attempted to downplay the aggressive and violent nature of the incident to avoid a finding that there was a continuing risk associated with his presence in places such as schools. [29] I find that during the incident on 26 November 2013 HS became very angry and aggressive, he could not or would not self regulate his behaviour, he assaulted the principal of the school, he threatened the principal with harm, he assaulted a bystander who tried to intervene and he yelled obscenities in a place where young and impressionable children were gathered and were likely to overhear. [30] The application has been brought out of a concern that HS may repeat his aggressive behaviour on school premises if similar triggers for that behaviour occurred again. Quite remarkably, HS denied he had anger issues. He presented no evidence that could be interpreted as his having gained insight into the causes and impacts of his behaviour. He did not seek any professional assistance to understand his triggers for aggressive and violent action. He attempted to justify his behaviour by blaming other people for his actions. He stated that he had been foolish but the responses he gave at the hearing were often inconsistent with that expression of regret. [31] I am satisfied that the presence of HS on school premises could in certain circumstances give rise to a risk to the safety or well-being of staff and to a risk that he would disrupt the good order or management of a school. -- 6 of 9 -- 7 His presence at the school on 26 November 2013 in an elevated state did give rise to such a risk and that risk translated into actual violence and aggression. [32] The circumstances where such a risk would be likely to arise in the future would be predicated on HS perceiving some injustice or personal slight to him or to family members associated with him. He would again be likely to be unable to regulate his behaviour and he would again tend to misinterpret the innocent actions of others as being intimidating behaviour towards him. [33] HS submitted that this was an isolated incident but he has shown that he has a propensity to respond in a violent or disruptive manner and that propensity gives rise to a risk of harm. His assurances that there would be no repetition on his behaviour were not based on any realistic or objective evidence to overcome the risk presented by his behaviour. [34] I do not accept that the risk of some repetition of this aggressive or disruptive behaviour is low. He has shown himself incapable of regulating his anger despite the presence of multiple witnesses and the threat of police involvement. This tendency was previously unknown: now it has been established and has not been satisfactorily addressed by HS. There is a real risk to others and it is reasonable for measures to be put into place to respond to that risk. [35] However I cannot find that there is a reasonable likelihood that HS will act in such a manner that he will jeopardise the safety or well-being of persons in schools generally in Queensland. I am not convinced that an order should be made under section 353 of the Education Act prohibiting entry by HS to all State schools. The risk to the safety and well-being of persons within schools is logically restricted to those schools where HS could perceive that he or his family is the subject of some unfairness. [36] Those schools are the school where the complaint relating to his stepson is still unresolved, the school where Mr P is currently the principal and where there is an unresolved complaint about the information provided at the commencement of these proceedings and the school where HS’ son is currently enrolled. The evidence does not reveal any other schools where HS’ presence is likely to cause harm or the apprehension of harm. [37] HS gave evidence that he has good relations with the deputy principal of his son’s current school. His son is doing well at that school and he wants to be able to take part in the school community in common with other parents. He submitted that prohibiting him from entry into that school would prevent him from attending activities in which his son is involved and events such as parent teacher meetings. He submitted that a prohibition would stigmatise his son unfairly with other students. [38] I accept the evidence from HS that he is very involved in his son’s education and that he frequently takes his son to and from school. A prohibition would interfere with his current activities at that school, -- 7 of 9 -- 8 including taking his son into his classroom of a morning and picking him up in the school grounds of an afternoon. There is no evidence presented to the tribunal that the presence of HS has caused any actual apprehension or fear to any member of the school community at his son’s current school. HS contends that the staff at that school have no issues with him. [39] However the basis for making a prohibition order in section 341 of the Education Act does not rely on the tribunal being satisfied that there is actual apprehension of harm held currently by staff. The requirement in that section is that the tribunal must be satisfied that unless a prohibition order is made, HS is likely to cause harm, apprehension of harm, damage to the premises or property or to disrupt the good order or management of the school. [40] I have reached a level of satisfaction that it is likely that HS would at the present time come into a school and cause harm or apprehension of harm or would disrupt the good order of a school if he perceived the staff at the school were acting in such a manner so as to cause some injustice or personal slight to him or to family members associated with him. He has not done so since November 2013, when there have been some legal strictures in place: namely criminal charges on foot from November 2013 to May 2014 when the charges were finalised and then this application on foot since March 2014. [41] However there are outstanding matters still in dispute between HS and the Department. Any outcomes from those matters that prove to be disagreeable to HS carry with them a likelihood that HS may attempt to display his disagreement in an aggressive or disruptive way as had happened in November 2013. [42] I am satisfied that an order should be made prohibiting HS from entering the three specified schools. The Department applied for a prohibition to extend for one year from the date of decision. Several decisions made by the tribunal in earlier cases made an order for one year. However, I do not accept that in this case adequate grounds have been put forward to support an order extending for one year from today. [43] The application was filed in the tribunal in early March 2014. The original arrangements made by the tribunal set a hearing date for 2 May 2014. At the request of the parties the original hearing date was vacated, delaying a decision on the application by almost three months. Section 341 allows the tribunal to impose a prohibition for any period of time up to one year. The prohibition period should not be in force longer than the circumstances of a case require. I note that HS has already been prohibited from entering one school of the schools for 60 days from 29 November 2013. [44] In this case it is reasonable to infer that all outstanding matters between HS and the Department could be resolved by the end of this year. Those matters have already been on foot for eight months and need to be -- 8 of 9 -- 9 brought to an end. A period of five months prohibition to 31 December 2014 would be adequate as a response to the risk arising from HS aggressive conduct. [45] It is usual for the tribunal to publish its reasons for decision on its website. Cases involving orders prohibiting persons from entering school are sometimes reported in the local media. The publication of the name of HS in the reasons on the website carries with it a likelihood that the children associated with HS, and in particular his son, may be identified and embarrassed by the matters set out in the reasons. This application is not meant to be punitive in nature but is a protective measure for specified school communities. The making of this order should not have, as an unintended consequence, the family of HS being embarrassed or stigmatised by the outcome of his actions. [46] The tribunal has power under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to make a non publication order about information that may enable a person affected by the tribunal’s proceeding to be identified. I am satisfied that in this case it would be contrary to the public interest to allow the reasons published on the tribunal’s website or other websites publishing reasons of this tribunal to identify the children of HS, including his stepchildren or to allow any public report of this case to identify those children. I order that the name of HS and the names of the schools covered by the decision must not be published. [47] Lastly, the Department had sought an order for costs in the application and submissions filed in the tribunal but abandoned that request at the end of the hearing. -- 9 of 9 --