Department of Education, Training and Employment v NS [2012] QCAT 633

CITATION: Department of Education, Training and Employment v NS [2012] QCAT 633 PARTIES: Department of Education, Training and Employment (Applicant) v NS (Respondent) APPLICATION NUMBER: CML176-12 MATTER TYPE: Childrens matters HEARING DATE: 23 November 2012 HEARD AT: Cairns DECISION OF: Joanne Browne, Member DELIVERED ON: 12 December 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The respondent, NS is prohibited from entering the grounds of the Bentley Park College until 30 September 2013. 2. The Tribunal prohibits the publication of the name of the respondent and her children and the names of the students at the College involved in the incidents concerning the respondent.1 3. The application for costs is dismissed. CATCHWORDS: Application for order to prohibit entry to school premises – whether circumstances exist to grant a period of prohibition – where parent struck another student and repeatedly used threatening and abusive language towards students and staff – application for costs – where non publication order made Education (General Provisions) Act 2006, s 341 Queensland Civil and Administrative Tribunal Act 2009, ss 66, 100 1 Amended by order of the Tribunal on 10 January 2013. -- 1 of 8 -- 2 APPEARANCES and REPRESENTATION (if any): APPLICANT: Chief Executive, Department of Education, Training and Employment represented by Mr Andrew Smith, Senior Lawyer, Department of Education, Training and Employment RESPONDENT: No appearance REASONS FOR DECISION [1] The Chief Executive, Department of Education, Training and Employment seeks an order prohibiting the respondent, NS from entering the premises of the Bentley Park College for a period of twelve (12) months commencing from the date of the hearing. [2] The Queensland Civil and Administrative Tribunal has the power to make an order prohibiting NS from entering the school premises under s 341 of the Education (General Provisions) Act 2006 (the Act) if it is satisfied that unless the order is made NS is likely to cause physical harm to, or apprehension or fear of physical harm in, another person when the other person is at the premises; or to damage the premises or property at the premises; or to disrupt the good order or management of the institution. [3] The application was received by the Tribunal on 23 October 2012 and served on NS on 29 October 2012. [4] The matter proceeded to hearing on 23 November 2012 in Cairns. Mr Andrew Smith, Senior Legal Officer (of the Department) appeared on behalf of the Chief Executive. There was no appearance by NS notwithstanding notices of the hearing having been sent to the parties on 26 October 2012. The Department relies on the affidavit (of service) of James Logan Anderson sworn on 30 October 2012 in relation to service of the application and supporting material on NS. The Tribunal is satisfied that NS was served with a copy of the application for prohibition and supporting material as detailed in the affidavit of service (of James Logan Anderson) and that notice of the hearing was given by the Tribunal (to NS) on 26 October 2012. [5] The Department prepared and filed a number of affidavits in support of the application. The affidavits were tendered at the hearing by Mr Smith. NS has not provided any response to the application or any statements of evidence in compliance with the directions made by the Tribunal in relation to material to be filed prior to the hearing. [6] There are a number of incidents referred to in the various affidavits tendered. The incidents concern alleged conduct of NS on the school premises which took place on 11 May 2012, 14 May 2012, 23 July 2012, 24 July 2012 and 4 September 2012. The police were called in relation to the incidents on 11 May 2012 and 4 September 2012. NS was charged with assault occasioning bodily harm in relation to the incident on 11 May -- 2 of 8 -- 3 2012, having pleaded guilty to the charge in the Magistrates Court at Cairns on 7 August 2012. A period of twelve (12) months probation was ordered and a conviction was recorded in relation to the incident on 11 May 2012. [7] The Department has issued various directions under s 340 of the Act to prohibit NS entering the school premises for a period of 60 days on 3 August 2012 and on 25 September 2012 (respectively). The Department also issued directions on 24 July 2012 and 15 May 2012 (respectively) prohibiting NS from entering the school premises for a period of 30 days. [8] The issue to be determined by the Tribunal is whether the circumstances warrant the exercise of the Tribunal’s power under s 341 of the Act to prohibit NS’s entry onto the school premises for a specified period of more than 60 days but not more than 1 year. The Tribunal, in determining whether such circumstances exist, must be satisfied on the balance of probabilities that unless the order is made NS is likely to cause physical harm to, or apprehension or fear of physical harm in, another person when the other person is at the premises; or to disrupt the good order or management of the institution. [9] There are a number of affidavits before the Tribunal that support the application and the various “incidents” involving alleged conduct by NS which gives rise to the circumstances in this application. The affidavits were prepared by College staff and a solicitor for the Department: 1. Affidavit of Kathryn Todd, Acting Principal, Bentley Park College affirmed on 4 September 2012; 2. Affidavit of Esther Fletcher, Solicitor, Office of the Crown Solicitor for the State of Queensland sworn on 15 October 2012; 3. Affidavit of Lynelle Blackensee, Administration Officer, Bentley Park College affirmed on 13 September 2012; 4. Affidavit of Adam Catalano, Teacher, Bentley Park College affirmed on 15 October 2012; 5. Affidavit of Reon MacKenzie, Responsible Behaviour Officer, Bentley Park College affirmed on 10 October 2012; 6. Affidavit of Natasha Glover, Deputy Principal, Bentley Park College affirmed on 10 October 2012; 7. Affidavit of Peter Krugle, Principal, Bentley Park College affirmed on 10 October 2012. Incident on 11 May 2012 [10] The incident on 11 May 2012 is supported by the affidavits of Adam Catalano, Kathryn Todd and Esther Fletcher. The affidavit of Kathryn Todd attaches various statements from students at the school who -- 3 of 8 -- 4 witnessed the incident. The incident giving rise to criminal charges concerned conduct on 11 May 2012 – at approximately 3.00pm at the Bentley Park College NS punched a student from the College. Mr Catalano intervened in the “fight” and with the assistance of another student was able to remove the complainant student away from NS. The complainant student informed Mr Catalano that NS had approached her and started screaming at her for “teasing” NS’s daughter (a student of the College). The police were called as a result of the incident. [11] The affidavit of Esther Fletcher attaches a copy of the verdict and judgment record and the transcript of proceedings (Magistrates Court at Cairns), in relation to the criminal charges arising from the incident on 11 May 2012. NS pleaded guilty to the charge of assault occasioning bodily harm on 7 August 2012. The sentencing Magistrate’s remarks in relation to the incident refer to NS having a history concerning two (2) charges of assault with convictions recorded and that NS has an “anger management problem”. Magistrate Comans stated the following in relation to the charge: a 33 year-old belting a 14 year-old at a school with a teacher present is simply unreasonable, unacceptable behaviour….you do have an anger management problem. You have two charges of assault on your history for which you have had convictions and now you have got another one where you lost your temper….probation will help you. You must realise that this was a serious matter, real injuries were done, thankfully not lasting, and the fact that you committed them at school makes them even more serious.2 Incident on 14 May 2012 [12] Following the incident on 11 May 2012 the Principal of the College Mr Peter Krugle met with NS in his office on 14 May 2012 to discuss the incident (which had occurred on 11 May 2012). During the meeting NS told Mr Krugle that if the situation between her daughter (a student at the College) and another student (the complainant student) was “not resolved to [her] satisfaction” that she would “deal with it by [her] own hands”. Mr Krugle states that he took the comments made by NS as being a “threat” against the complainant student (of the College). A direction was issued by Mr Krugle (under s 339 of the Act) to NS on 14 May 2012, to immediately leave the school’s premises and not re-enter the school premises until 15 May 2012 (9.15am). This direction was issued as a result of the incident on 11 May 2012.3 On 15 May 2012, Mr Krugle issued a direction to NS under s 337 of the Act for a period of 30 days.4 There were certain conditions attached to the direction in respect of NS entering the College grounds. Incident on 23 July 2012 [13] On 23 July 2012 Mr Reon MacKenzie was standing in the foyer beside his office when he overheard students of the College talking about a woman chasing them and wanting to hit them. Mr MacKenzie states that he found 2 Exhibit 2, attachment marked “EMF”, pp 5-6. 3 Exhibit 1, attachment marked “KT2”, p 34. 4 Exhibit 1, attachment marked “KT2”, p35. -- 4 of 8 -- 5 NS standing outside the door and that NS told him that the students had been “talking cheeky” to her on the school grounds. NS declined to speak to Mr Mackenzie about her “concerns” in his office. NS then made numerous comments and verbal threats to the students stating “I smash those girls if they don’t stop”, “I don’t care if I go to jail”, “I’m a violent woman and I don’t care”. Mr Mackenzie asked NS to leave the school grounds and requested that her daughter come to see him the next morning to discuss her concerns. NS proceeded to leave the school grounds but then turned around and yelled in the direction of the female students on College grounds: “Come out here and I smash you, c’mon I don’t care”. Mr MacKenzie states that NS continued to make verbal threats towards students as she walked away from the College (down the street). The affidavit of Reon MacKenzie attaches a copy of the incident report completed at the College as a result of the incident. The affidavit of Kathryn Todd attaches various statements from students of the College concerning the incident on 23 July 2012. Incident on 24 July 2012 [14] On 24 July 2012 Mr MacKenzie met with NS’s daughter to discuss her concerns about students of the College allegedly “swearing and laughing” and “looking” at her. Mr MacKenzie telephoned NS at approximately 1.45pm to inform NS that her daughter had been suspended from the College. NS interrupted Mr MacKenzie (during the telephone conversation) and said “I am coming to get her now I am removing her from your stupid fucking school” and then ended the telephone call by hanging up. [15] NS arrived at the College on 24 July 2012 at approximately 2.00pm and approached the administration door from the Mall area. Mr MacKenzie approached NS who said “this school is fucked” and she stated that she would be moving her daughter to a different school. As NS was signing her daughter out of the College at the front office Ms Todd approached NS and handed her a letter giving her a direction under s 337 of the Act. Upon being given the letter NS stated “This school is fucked, you don’t do nothing, it’s because I’m black and my daughter is black”. NS left the office saying “I am going to hunt those girls down, it may not be at school but I get ‘em in Cairns. I’m going to fucken smash those little cunts. This is because we are black”. [16] Mr MacKenzie and Ms Todd walked with NS and her daughter towards the exit of the College and NS continued to make verbal threats towards students. NS’s daughter then told NS that she had forgotten her bicycle. Mr MacKenzie and Ms Todd followed NS and her daughter to the bike rack (inside the College premises) and NS continued to yell abuse and threatened to bash students. NS turned towards Ms Todd (in front of her daughter) and said (to Ms Todd) “You fucken white cunt, I will punch you too you white cunt. You only doing this cause I’m black.” Ms Todd instructed NS to leave the school grounds as she was affecting the good order of the school. NS left the College but continued to make more threats that she was going to find those students in Cairns and “smash -- 5 of 8 -- 6 them”. Mr MacKenzie and Ms Todd completed incident reports as a result of the incident on 24 July 2012.5 [17] As a result of the incidents on 23 and 24 July 2012 a delegate of the Chief Executive determined on 3 August 2012 that pursuant to s 340 of the Act a direction prohibiting NS from entering the College premises for a period of 60 days be issued.6 The 60 day prohibition period would end on 1 October 2012. Incident on 4 September 2012 [18] On 4 September 2012 NS entered the administration building of the College premises and requested that her son (a student of the College) be called to meet her at the front gate of the College. NS told Ms Lynelle Blanckensee (Administration Officer) that she was not allowed on the grounds of the College. Upon NS being informed that her son had already left the College, NS left the administration building. [19] At approximately 3.20pm on 4 September 2012, students of the College reported to Ms Natasha Glover (Deputy Principal) that they had been chased by NS, NS’s daughter and another person (known to be a relative of NS). The students reported to Ms Glover that they ran back to the College because they knew NS would not be allowed on the College premises. The students reported that NS had yelled at them calling them “sluts” and that NS had yelled to another adult in a motor vehicle to follow them. The police and the parents of the students were called as a result of the incident (at approximately 3.30pm). Mr Reon MacKenzie and Ms Natasha Glover interviewed the students involved in the incident on 5 September 2012. The statements of the students involved in the incident are attached to the affidavits of Reon MacKenzie and Natasha Glover. [20] As a result of the incident on 4 September 2012 a delegate of the Chief Executive determined on 25 September 2012 that pursuant to s 340 of the Act a direction prohibiting NS from entering the College premises for a period of 60 days be issued.7 The period of prohibition would expire on 25 November 2012. Do circumstances exist to grant a period of prohibition? [21] The Tribunal is satisfied on the balance of probabilities that NS physically assaulted a student of the College (on College premises) on 11 May 2012, verbally threatened a student of the College (on College premises) on 14 May 2012, verbally threatened students of the College (on College premises) on 23 July 2012, verbally threatened a member of staff of the College and students (on College premises) on 24 July 2012; and verbally threatened students of the College on 4 September 2012. [22] NS has continued to use offensive and threatening language and has made threats of violence towards a member of staff and other students of the College again in the presence of staff and on the College premises 5 Exhibit 5, attachment marked “RM4”, p 5; Exhibit 1, attachment marked “KT2”, p 27. 6 Exhibit 1, attachment marked “KT2”, p 2. 7 Exhibit 7, attachment marked “PK3”, p 4. -- 6 of 8 -- 7 over a period of some two months. The conduct of NS is not acceptable and the Tribunal is satisfied that NS’s conduct, for the purposes of s 341 of the Act, has caused physical harm to a student of the College in relation to assaulting a student (of the College) on 11 May 2012. NS has also caused fear of physical harm to students and a member of College staff and has otherwise caused a disruption to the good order and management of the College. [23] The Tribunal accepts the submissions made by Mr Smith at the hearing that the incident on 4 September 2012 although occurring outside the College premises is relevant in that it is an incident involving further threats (made by NS) against students of the College and therefore gives weight to the efficacy of the 60 day prohibition in place at the time (made by the Department on 3 August 2012) in that the students returned to the College premises knowing that NS was prohibited from entering the College grounds. The incident on 4 September 2012 is also relevant as it demonstrates a pattern of threatening behaviour towards students of the College over a period of approximately 4 months. [24] The Tribunal is satisfied to the requisite standard having considered all of the material, that unless an order is made prohibiting NS’s entry onto the College premises NS is likely to cause physical harm to, or apprehension or fear of physical harm in, another person namely students and staff of the College when at the College premises; or to disrupt the good order or management of the College. The Tribunal has also considered the sentencing remarks of the Magistrate concerning NS’s plea of guilty in relation to the charge of assault concerning the incident on 11 May 2012. The Magistrate in his sentencing remarks refers to NS’s “anger management” issues and the circumstances of the incident being of particular concern in that the assault took place on the College premises in the presence of College staff. The Tribunal has also considered, in being satisfied that NS’s conduct may disrupt the good order or management of the College, that police have been called in relation to two of the incidents and there has been more than one occasion where NS has made verbal threats giving rise to an apprehension of fear to students of the College in the presence of staff (of the College). NS has also verbally threatened the Acting Principal in the presence of another member of staff of the College and NS’s daughter, a student of the College. [25] The Tribunal has considered the various incidents concerning NS’s behaviour in determining the period of prohibition to be ordered under s 341 of the Act. The most recent incident on 4 September 2012 took place during the first period of a 60 day prohibition (imposed by the Department on 3 August 2012) and concerned conduct by NS towards students of the College outside the College premises. The conduct was serious in that it involved verbal threats resulting in students returning to the College to report the incident to College staff and police were called to the College. [26] The Tribunal made final orders at the hearing on 23 November 2012 that there be a period of prohibition until 30 September 2012. Section 341 -- 7 of 8 -- 8 provides that the Tribunal may make an order prohibiting a person from entering the premises for more than 60 days but not more than 1 year. The Act does not provide whether a series of 60 day prohibitions followed by a 1 year prohibition may be made for the purposes of s 341. The Tribunal has determined that the period of prohibition (ordered by the Tribunal on 23 November 2012) is to commence from the date of expiry of the first period of the 60 day prohibition (issued by the Department on 3 August 2012) which expired on 1 October 2012. NS is therefore prohibited from entering the grounds of the College until 30 September 2013. Application for costs [27] The application for costs was abandoned at the hearing, Mr Smith having indicated that he has been instructed to no longer proceed with the application. The appropriate order is that the application for costs is dismissed. Non-publication order [28] The Tribunal has the power under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 to make an order prohibiting the publication of the names of the respondent (NS), her children and the students involved in the incidents concerning NS’s conduct. The Tribunal may make an order under s 66 on its own initiative if it considers the order is necessary on certain grounds set out under s 66(2) – this includes whether to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or for any other reason in the interests of justice. NS has children who attend the College and certain conduct of NS involved the assault of another student and verbal threats being made to students of the College. The Tribunal is satisfied that in circumstances where NS’s children are not responsible for their mother’s behaviour giving rise to this application, it would not be in the public interest to publish the names of NS’s children. Furthermore, in circumstances where the College is located within a small region and it would be possible to more readily identify the names of NS’s children if the respondent (NS) was identified, the interests of justice otherwise warrant the Tribunal making an order prohibiting the publication of the respondent’s name (NS). It is also not appropriate for the Tribunal to publish the names of the students of the College involved in the incidents concerning threats made by NS on the basis that this information is confidential. -- 8 of 8 --