ABC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 476

CITATION: ABC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 476 PARTIES: ABC (Applicant) v Commissioner for Children and Young People and Child Guardian (Respondent) APPLICATION NUMBER: CML035-13 MATTER TYPE: Childrens matters HEARING DATE: 23 and 24 May 2013 HEARD AT: Brisbane DECISION OF: Pam Goodman, Presiding Member Graham Quinlivan, Member DELIVERED ON: 26 August 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Commissioner for Children and Young People and Child Guardian made on 6 February 2013 to issue a negative notice and cancel ABC’s blue card is confirmed. 2. Publication of ABC’s name and the names, addresses and schools of the students referred to in this proceeding is prohibited. CATCHWORDS: Where former registered teacher seeks Blue Card to teach music privately – where inappropriate relationships with students – whether an exceptional case APPEARANCES and REPRESENTATION: APPLICANT: Mr Van Grinsven, instructed by Quinlan, Miller and Treston RESPONDENT: Represented by Mr Capper -- 1 of 11 -- 2 REASONS FOR DECISION [1] We are reviewing the Commissioner’s decision to cancel ABC’s blue card. ABC needs a blue card if he is to resume his career as a music teacher. [2] QCAT has previously prohibited ABC from being registered as a teacher because of the relationships he formed with students.1 [3] ABC is an accomplished musician and an experienced music teacher. He was registered as a teacher on 1 August 1990, and taught for many years in the state school system. He resigned in 2008 after concerns were raised about his conduct. [4] Between 2001 and 2007 ABC formed inappropriate and intense relationships with three teenage students. The only independent evidence of communications between ABC and his students is contained in three letters sent by ABC to a student in 2001. Transcriptions of the letters, so far as they are legible, are attached to this decision. [5] The letters are overly familiar. For example, ABC writes to his student that he had only had two hours sleep one night but “I didn’t lie awake worrying about things between you and I. I just lay there thinking wonderful things about you.” In another letter he writes “Every so often, I completely forget who I am and I try to dictate / dominate your time. Forgive me, please.” [6] The letters, along with ABC’s subsequent conduct, raise doubts as to whether he properly understands his role and responsibilities when placed in a position of trust and authority over children. ABC ACTIONS [7] In considering ABC’s actions we accept: a) music teachers will, by the nature of their job, spend time with students outside of the classroom and outside of school hours (for rehearsals, performances, private lessons etc); b) in 2001 – 2007 it was unclear whether any (or how much) text or email communication between teachers and students was acceptable. [8] We accept the view of all parties that ABC’s actions were inappropriate. STUDENT R - 2001 [9] R was a year 10 student at ABC’s school. They formed a close relationship and exchanged letters. The exchange continued despite R’s mother asking ABC to stop. Transcriptions of three undated letters written by ABC to R are attached to this decision. Only words which appear clearly have been transcribed. ABC denies drawing the love hearts that 1 Queensland College of Teachers v Teacher ABC [2012] QCAT 56. -- 2 of 11 -- 3 appear on two of the letters. The copies we have are of poor quality and we cannot determine who drew the hearts. [10] ABC acknowledges that the letters were highly inappropriate. He states that the style and language he used reflected the style and language R used in her letters to him. ABC states he intended to encourage R to pursue her interest in music, despite opposition from family members. ABC says he was communicating as a family friend and private teacher. In retrospect, ABC describes the content of the letters as “horrible”, saying “I can’t excuse it”. [11] ABC describes himself as a supportive person who was able to listen to R and allow R to communicate her feelings to him. ABC denied “grooming” R, or that he held any intention of forming a physical relationship with her, noting that the relationship that he had with R was the same as he had with any number of other students. [12] ABC states that after the relationship was brought to the attention of his Principal, he received a formal caution. R stayed at the school and completed year 12 studies. ABC states that in talking with R years later he formed the view that she was embarrassed by the communications between them, but that she bore him no ill will and told him that the communications had not had an adverse effect on her. STUDENT S [13] In 2006, while S was in year 10 and was taught by him, ABC sent her over 1200 text messages over a period of 3 - 4 months. Texts were sent during school hours, on weekends and holidays, while they were travelling to an event on the same bus, and late at night. [14] There is no independent evidence as to the content of the messages exchanged between ABC and S. ABC states that: a) the contents of the texts were not “personal” in the way that the letters he wrote to R were, and anything said in the texts was “professional”, b) any texts he sent were in response to a text he had received from S, c) S had a number of personal issues, including the death of a family member, living away from home and boyfriend issues, d) he referred her to the guidance officer / chaplain a number of times, and e) in hindsight, he made a bad decision in communicating with S in that manner. [15] Given the number of texts, and the times the texts were sent, we find that they were not “professional”. The communication by ABC, even if responding to contact from S, was overwhelming and inappropriate. ABC has himself acknowledged that his behaviour was inappropriate, although, -- 3 of 11 -- 4 as before, he denies “grooming” the student with an intention to form a sexual relationship. STUDENT K [16] ABC advised: a) Shortly before finishing year 12, K told him she was struggling with the workload and with personal problems, and he assisted her with assignments, b) He communicated with K via text messaging and MSN (on his computer). Prior to K’s graduation the messages that he sent were “professional”, and he denies he was “grooming” her. c) Around graduation, K sent him some photos of herself in her formal gown. d) In approximately December 2006 (shortly after K’s graduation) they began to meet for lunch and their relationship became sexual in late December / early January. At the time, he did not think about whether the relationship was appropriate. e) The relationship ended around late January, primarily because they were meeting at lunch time and that would not be possible once ABC returned to teach in the new school year. f) When he looks back on the relationship, he thinks “what was I thinking?” He was flattered by her attention in a personally unhappy time. He had nothing to do (over the school holiday period when he was living alone having recently separated from his wife) and allowed himself to “get caught up” in a relationship with K. g) He now deeply regrets the relationship and finds it embarrassing. He is not sure if there had been any detrimental effect on K, but regretted the impact on his life and career. He acknowledges that he did the wrong thing, acting in a way that was inappropriate and unprofessional. [17] We have before us a photocopied page of handwritten notes which are said to be copies of texts exchanged between ABC and K. ABC denies receiving or sending the texts. The messages contain a term of affection which ABC says he “may have” called K. On balance, we find that it would be unsafe to rely on the notes as an accurate record and they have not factored into our decision. [18] It is clear that ABC’s contact with S reduced at about the same time that his contact with K increased. ABC could not recall why or how his intense level of communication with S reduced. [19] While there was regular text messaging between ABC and K, we cannot determine the frequency or intensity of contact between them as no records are available of their communication via computer. ABC recalled -- 4 of 11 -- 5 that it felt like K was instigating a lot of contact with him and he was going along with it. SHOULD WE GRANT A BLUE CARD? [20] We must grant ABC a blue card unless we are satisfied that this is an exceptional case in which it would not be in the best interests of children to do so.2 In making our decision, the welfare and best interests of children are paramount3, as is their protection from harm and promotion of their wellbeing.4 We have considered the factors described in the legislation5 and other relevant matters that are particular to this case.6 [21] In assessing whether this is an exceptional case, we have considered all the evidence before us. We have weighed up the apparent risk factors as against the protective factors, including ABC’s level of insight into his behaviour. PROTECTIVE FACTORS [22] In 2008 ABC resigned his position with Education Queensland but retained his blue card. After moving away from teaching for some time, he returned to teach privately, through a sub-contract arrangement, and then worked in the private school system. [23] From 2009 to 2011 ABC worked as a music teacher in a private school. His colleagues who provided evidence regard him as a professional and gifted teacher who took proactive steps to ensure that his communications with his students were appropriate and transparent: contact with students was limited to his school email address, and he primarily corresponded with parents only. He arranged to teach in a room on a corridor with a large window and generally left the curtains, blinds and door open when teaching, particularly with an individual student. He did not teach privately from his home. [24] On 28 February 2013 the Principal of the school wrote to ABC stating “From my knowledge you have worked positively and respectfully with all students with whom there has been contact. There has been no indication of preferential treatment of any student, nor has there been any concern raised by a staff member, student, or parent, during you employ”. [25] There is no evidence that ABC has acted inappropriately since early 2007. [26] ABC has formed a long term relationship (approximately 5 years) with his current partner. ABC states that she knows all the details of his history. 2 CCYPCG Act, s 221. 3 CCYPCG Act, s S5,6. 4 CCYPCG Act, s 155. 5 CCYPCG Act, s 226. 6 CCYPCG v Lister (No 2) [2011] QCATA 87. -- 5 of 11 -- 6 [27] ABC has expressed remorse and regret over his behaviour and indicated that he will not act in such a way again. [28] In October 2008 ABC completed an online Code of Conduct training, covering Student Protection. [29] On 11 April 2013 Professor Barry Nurcombe, psychiatrist, evaluated ABC. Professor Nurcombe finds no evidence of a psychiatric disorder - no active mental illness or personality deviation. [30] Professor Nurcombe states that in 2006 (the time of his relationship with K) ABC was naive and emotionally vulnerable. He finds that ABC has paid a high price for his actions and has had a great deal of time to reflect on them. He finds there is a low risk that ABC will, in the future, transgress the ethical standards embodied in the Education (Queensland College of Teachers) Act 2005. RISK FACTORS [31] ABC was a teacher of some experience when the first of these incidents occurred. Despite being disciplined for his actions, he went on to form intense personal relationships with two more children that he taught. [32] ABC indicated that at the time he was corresponding or in a relationship with the students or former student he did not think the relationships were inappropriate, although it did “cross his mind” that the sexual relationship was inappropriate. He maintains that the contents of the letters to student R were “not inappropriate per se”. [33] The three students were all (by his account) teenagers experiencing difficulties in terms of isolation from their families and other personal issues and so were in vulnerable positions. ABC’S actions have breached the trust afforded him as a teacher. [34] The blue card scheme is much less regulated than the teaching profession and essentially allows card holders to work unsupervised with children. [35] All of the protective factors relied on by Professor Nurcombe as reducing the risk of ABC transgressing boundaries were in place when ABC did transgress professional boundaries (except, perhaps, ABC’s personal relationship was not “stable” in 2006). [36] Professor Nurcombe did not have access to the letters attached to this decision, and so was not able to comment on them. He describes ABC’s relationship with R as “in the context of trying to help her settle away from home”. He notes that R wrote to ABC “speaking about her family problems”. He records that S reached out to ABC through his mobile phone number, texting him about her grandfather’s death and the way she missed her family. [37] We do not accept Professor Nurcombe’s description of the relationship between ABC and S and R. Communications between ABC and R were -- 6 of 11 -- 7 more than about family problems. Similarly, the volume of text messages to S points to a relationship far beyond a responsible adult offering reasonable assistance to a child who has moved from home. [38] The conclusions reached by Professor Nurcombe are confined to the risk posed by ABC when working as a teacher, not if engaging with children as the holder of a Blue Card, and the conclusions were reached without the benefit of the entirety of the evidence before the Tribunal. We are not satisfied that Professor Nurcombe was provided with a full and clear picture of ABC’s relationships with his students. We do not accept that ABC poses a “low risk” if granted a blue card. INSIGHT [39] ABC indicated that he regretted his actions because they were a significant factor in his arguments with his ex-wife and because they ultimately led to the end of his teaching career. [40] ABC did not identify any risk to the children in his care unless prompted. He then identified the risk that children may feel uncomfortable with the level of trust they have with the teacher or may be placed in danger. ABC indicated that there is a risk that students could feel there is a level of affection or unwanted attention from their teacher. [41] Referring to his communications with student R ABC states “The content of the communication was in the context of friendship and thus was not inappropriate per se, however, between a teacher and student, the boundaries of appropriateness are different and I stupidly ignored that fact.” [42] ABC explained the nature of his relationships with the three students by saying that he was responding to them. For example, he states that the style of the letters written to R was in response to the style of communication she used when writing to him, and that the texts messages he sent S were only in response to messages she sent him. In explaining his relationship with K he states “K was persistent about us having lunch together on many occasions” and “I did not actively seek any type of relationship with K...”. [43] ABC indicated that he knows he has done the wrong thing and that he deeply regrets his actions and the ramifications and the harm he could have brought on students in his care. [44] ABC’s reflections on potential harm were limited to the inappropriateness of his actions as a teacher. He referred to the codes governing the behaviour of teachers. ABC also describes himself as “a friend” to the students and we note the Commissioner’s concern that ABC does not identify a risk to highschool aged children when involved in intense communications with a “friend” some 20 years older than them. -- 7 of 11 -- 8 [45] Notwithstanding Professor Nurcombe’s conclusions, we find that ABC does not have a high level of insight into the damage his behaviour could cause to others. [46] We are unable to find that ABC was “grooming” the students to develop a sexual relationship. The available letters contain no sexual content, and we have no independent evidence of his communications with S and K. We have no independent evidence as to conversations between ABC and his students. ABC did in fact form a sexual relationship with K after she graduated, and it is possible that ABC entered into friendships with the other students as part of a plan to develop a sexual relationship with them. The possibility of that intention is not a sufficient basis for us to find that ABC was “grooming” the students. An exceptional case may exist even if ABC was not grooming the students. [47] There is no acceptable explanation for ABC’s inappropriate behaviour. ABC himself is unable to explain why he behaved the way he did. There is no psychiatric or medical evidence to explain why ABC acted as he did. ABC formed inappropriate and intense relationships with three separate teenage girls. He failed to act as a teacher (and indeed as an adult) might be expected to act. [48] A blue card would entitle ABC to have unsupervised and unfettered interactions with children. We have seen that ABC has been unable to manage those relationships in a protective way. In the absence of any proper explanation for his past behaviour, and as ABC has not demonstrated a high level of insight into the potential damage that can be done to children in such a relationship, we find that this is an exceptional case where it would not be in the best interests of children for ABC to be granted a blue card. [49] In reaching this decision we do not intend to provide any commentary or guidance as to whether ABC should be reregistered as a teacher. That is a separate matter. NON PUBLICATION ORDER [50] ABC asks that his name and other identifying information is not published in this decision. The Commissioner asks that certain other information is not published. [51] If a non-publication order is not made7, all information before the Tribunal may be published in this decision. [52] As noted above, ABC has previously been involved in proceedings in this Tribunal. On 6 February 2012, the Tribunal ordered that publication of ABC’s name, and the names, addresses and schools of the students referred to in its decision of 6 February 2012 was prohibited. 7 QCAT Act s 66 . -- 8 of 11 -- 9 [53] If a non-publication order is not made here, any reader of this decision will be easily able to identify parties involved in the previous decision. That would breach a previous decision of this Tribunal. Accordingly, it is in the interests of justice that a non-publication order is made in the same terms as the previous Decision. -- 9 of 11 -- 10 ANNEXURE “A” Letter 1 Hello my BEAUTIFUL friend How are you today I’m surprisingly good considering that I only had about 2 hours sleep last night. I guess I should be positive it was more than the night before. Actually there is a big positive. I didn’t lie awake worrying about things between you and I. I just lay there thinking wonderful things about you. Probably because you are a truly wonderful person. Despite my recent suspicion about the power of prayer I thank God daily (hourly even) for the gift of knowing you and being your friend. I truly … … . I hope you sorted things out with your mum. You really need to keep her on your side. She is a lovely person (normally after a drink). I’m sitting in my classroom with my 9 Numeracy class They’ve all got work to do, but do you think that could possibly do some of it? They’re supposed to be A or B students, but I don’t think their next tests will take long to mark. I had a lovely time sitting with your mum and dad and YOU last night. It really helped me …. … …, and forget a few things. Thanks for being there for me. I hope and pray that I can be as good a friend for you as you have for me. I hope you like my ACROSTIC for you. I know the meaning of almost all of the words if you want to know what they mean. I have a dictionary, I’ll be happy to tell you what they mean. They are all words to describe how wonderful you are. The …. …… …… …………. I have a meeting with Steve in the first beak about Death by … I hope it’s fun. You’ll be there so I know it will be good. Do you know about Steve’s prayer meeting before school on Thursday? Is … the first one or has he ... ... before? I’m thinking of going but I am a little unsure? What would you suggest? Anyhow, my hand is sore because it’s a long time since I’ve written so many words. I look forward to every time that I see you … ... ... .... I love spending time with you. Words just don’t seem to say enough. Thank you from the bottom of my heart. (heart drawn) Your friend Always Letter 2 Hello my wonderful friend How are you? What have you been doing lately? How was your doctor’s appointment? I (hope crossed out) pray that its not anything serious! I’m sitting in a Rock Eisteddfod Rehearsal at the moment and there is absolutely NO reason for me to be here. NEW DAY Yesterday I told my friend that I miss her when she’s not around and that I really enjoy spending time with her. Sometimes it seems .. that … … … … … each … the … But I never feel this way for long as I know that it is really is strong friendship we have . My friend influences me so much in what I do and the way I think. Not many people can do that to me. She must be really amazing I look forward to any time we can spend together to the … … … time … to see her. Is …/… what? I find myself thinking about you. ... ... (little sleep) GRR- I feel angry now. Very little breakfast! No lunch!! You will find Joel. If he doesn’t have your lunch, I WILL buy your lunch (no argument). If you feel the need you can repay me but it won’t be necessary friends buy each other lunch sometimes. -- 10 of 11 -- 11 YOU MUST TAKE RESPONSIBILITY FOR YOUR OWN (BLANKED OUT) WELLBEING. YOU SILLY GIRL!!! You mean too much to me to put up with your neglecting yourself in this way. PLEASE, do something for you!!! Letter 3 Hello my dear friend! ........... How are you? I hope you had a chance to rest this afternoon? You really looked like you needed a rest. Its not very often that you show that you’re tired, but it was very visible this today. PLEASE look after yourself!!! Look, I’m really ... about this afternoon. Every so often, I completely forget who I am and I try to dictate/dominate your time. Forgive me, please. I beg your forgiveness if I’ve overstepped the mark. I didn’t mean to upset or offend you by telling you that I miss you when you’re not around. You are truly a beautiful person. A wonderful, wonderful musician in the making and it is my priviledge and honour to have you as my friend. Your wisdom defies your age. Your personality is strong enough to lift the heaviest person (thank goodness). And I pray that God continues to treat and guide you the way he has so far. I should consider myself so very very fortunate that you spend what time you do with me, and I should respect the fact that you have friends of your own age, and that you should spend time with them also. I shall continue to miss you when you are not around, and it will make me eagerly await and look forward to the next time I see your beautiful smiling face. And any time I get to spend with you I should be extremely thankful for. Again my humble apologies and thank you for being so understanding. I hope that I am half as good a friend to you ... ... your friend always -- 11 of 11 --