1. As noted above, when exercising its review jurisdiction, the Tribunal must apply the same legal test as the decision-maker and address the same questions as the original decision-maker. Usually, the Tribunal has regard to the facts as at the time of the hearing. The Tribunal is not confined to the evidence before the original decision-maker. As the Tribunal is required to make the correct or preferable decision, the Tribunal may be in error if it ignores or does not follow up an important issue.
2. As the Tribunal must conduct a merits review, its role is '...not to evaluate the merits of the decision under review, or the decision-making process. It is to make its own decision on the evidence before it and the current law.'[106]
3. New evidence came to light as a result of the applicant's evidence before the Suitability Panel.
4. This evidence concerns the applicant's disclosure when giving evidence to the Suitability Panel that he took a photograph of LNX masturbating in the lounge room. When cross examined about it during his evidence at the Tribunal hearing, he stated he took two photos but considered it to be one as it was a 'Live Photo'.[107]

1. The SSR submitted in Annexure 1 to their closing submissions, the Tribunal has to address the same question that was before the primary decision maker. The submissions contend the Tribunal must take into account evidence of the photographs.
2. The SSR submits that the masturbation evidence itself is evidence relevant to Allegation 1, as it falls within the original allegation of sexual abuse within a specified date range and is not of itself a new allegation.[108]
3. Section 105(2)(b) of the CYF Act states the Suitability Panel must have regard to 'any evidence presented to the Panel by any of the parties to the hearing' and section 105(2)(c) states it must have regard to 'any other matter the Panel considers relevant to its determination.' Therefore, the Tribunal must consider the masturbation evidence under section 105(2) and is not precluded from doing so by the fact the masturbation evidence was not particularised.
4. The SSR relied on Frugtniet as support for the proposition that on review the Tribunal may sometimes take into account evidence that was not before the original decision maker. It can do so when the evidence is relevant to the question the original decision maker was bound to decide but cannot take into account matters which were not before the original decision maker where to do so would change the nature of the decision, namely, the question before the original decision maker. The SSR also relied on Waensila v MIBP[109] citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd[110] that in the ordinary case a decision maker is required to take into account all the information before them.
5. The SSR submitted the Tribunal should use the photos as evidence which is probative and relevant to support a finding that the Allegations 1(a), (b), (c) and (d) of sexual abuse by the applicant should be found proven. The SSR submitted the applicant's explanation for taking the photo was not credible and that an inference should be drawn that he took the photo for his own sexual gratification.[111] The submissions describe the applicant's evidence about the photos and LNX's masturbation as inconsistent and 'fanciful'.[112] SSR submitted if the applicant's evidence was correct that he took the photos to show Mr Gafforini to prove to the care team that LNX was doing this, then why did he not take more photos of her. SSR sought to draw the inferences, firstly, he knew taking the photograph was wrong and secondly, he took the photograph for his own sexual gratification.[113]

1. The applicant's closing submissions agreed that specific findings about photos may be relevant to the assessment of facts in issue, namely the fact of and reasons for taking the photos may inform consideration of whether the alleged acts in Allegation 1 particulars (a) - (d) are more or less likely to have occurred. The applicant submitted evidence of the context in which the photos were taken is relevant to characterising the act, therefore the Tribunal should first make findings about the reasons and circumstances.[114]
2. The applicant rejected the SSR submission that Allegation 1 could be proven by matters not specifically particularised and that the 'SSR is now seeking to argue the particulars in Allegation 1 could go beyond their explicit wording because the applicant was aware of a general ambit allegations of sexual abuse.'[115]

1. Section 105(2) CYF Act specifies what the Suitability Panel must have regard to. Section 105(2)(a) provides 'the allegation referred by the Secretary to the Panel.' With respect to the applicant this comprises Allegation 1 Particulars a, b, c and d, and Allegation 2 Particular a.
2. In so far as it is put that the SSR submits I can find the allegation that the person has physically or sexually abused the child purely on the evidence of the photographs I reject this as contrary to section 105(2)(a) which mandates regard is had to 'the allegation referred by the Secretary to the Panel' and, in this case, this includes the particulars. I also accept the applicant's submission, 'If Allegation 1 could be proven by matters that were not specifically particularised, an unfair hearing would result.'[116]
3. However, I accept under section 105(2)(b) I must consider the photos as evidence presented to the Panel by a party to the hearing, and under section 105(2)(c) as a matter relevant to the Panel's determination, as it appears to have used it as relevant evidence and probative evidence as to whether the particulars occurred.
4. I accept the photos constitute evidence which should be considered in this review. They were in evidence before the Suitability Panel and are relevant to the facts in issue.

1. The allegations against the applicant considered by the Suitability Panel under section 96 of the CYF Act were:

Between 19 October 2017 and 22 February 2019, [LNX] was sexually abused by [the applicant] whilst placed in his care.

Particulars

1. Whilst [LNX] was having a shower the applicant] got in with her naked and he touched her vagina, bottom[117] and breasts, then shaved her legs.
2. That [the applicant] took [LNX] into his room and touched her breasts, bottom and vagina and asked to have sex with her.
3. [The applicant] showed [LNX] a book that had adult sexually explicit photos and also showed her a vibrator.
4. That whilst [LNX] was watching television [the applicant] kissed her on the lips, touched her breasts, vagina and bottom in a sexual manner.

1. The Determination of the Suitability Panel includes a list of documents considered, materials provided prior to and at the hearing and oral evidence from the 15 witnesses, as well as the interview with LNX. The Suitability Panel also considered documents provided by Victoria Police, noting the VARE conducted with LNX was not available.
2. Suitability Panel Member Dr Jessica Murphy interviewed LNX and the video recording of her 'discussion with LNX'[118] was provided to the Panel members and the applicant and the applicant's wife.
3. The Suitability Panel also considered the applicant's submissions.
4. The enabling legislation section, the CYF Act, at section 105(1) provides:

(1) At a hearing the Suitability Panel must first determine whether or not the allegation that the person has physically or sexually abused the child is proved on the balance of probabilities.

(2) In making the determination, the Suitability Panel must have regard to -

(a) the allegation referred by the Secretary to the Panel; and

(b) any evidence presented to the Panel by any of the parties to the hearing; and

(c) any other matters that the Panel considers relevant to its determination.

1. Standing in the shoes of the Suitability Panel, I consider the allegations referred by the Secretary to the Suitability Panel, the evidence presented to the Panel, and any other matters the Panel considered relevant to its determination.

1. The Tribunal heard from three additional witnesses who did not give evidence to the Suitability Panel, CMR, Natasha Sergent and Dr Bea Raymond.
2. Documentary evidence before the Tribunal but not before the Suitability Panel comprised:

Dr Raymond's report and supporting materials;[119]

1. At an earlier directions hearing, the applicant's application to cross examine LNX was granted, and she was cross-examined at the Tribunal hearing.
2. Following opening submissions this took place via a remote Zoom link to the Tribunal's Bundoora premises. LNX had a support person, Ms Marika Vlahopoulos a disability support worked from Including You, present with her, and Ms Price of counsel appeared on behalf of the applicant to conduct the cross examination. Immediately before appearing for cross-examination, LNX watched at the Tribunal's Bundoora premises the video of her evidence to the Suitability Panel on 24 November 2021.
3. A Tribunal Book was tendered by the SSR. This included the section 49 materials, namely the statement of reasons and documents in the decision maker's possession considered relevant to the review of the decision. The Tribunal Book also included the investigation report by Ms Kimpton for Berry Street, a summary of the police investigation and reasons for the non-authorisation of the police brief, the transcripts of interviews conducted by Ms Mansell for the SureFact investigation and those from the Suitability Panel hearing. The SureFact reasons for substantiation and the Suitability Panel's reasons for determination were also included. A supplementary Tribunal Book was tendered which included some of LNX's medical records and school records.[121]
4. The Tribunal hearing took ten days and heard from 19 witnesses. The SSR called 12 witnesses and the applicant called seven witnesses. The witnesses who had been interviewed as part of the SureFact review and the Suitability Panel hearing adopted those interviews as their evidence in chief.
5. While not played during the hearing, at the request of the parties, I have also watched the video of Dr Murphy's interview with LNX.
6. I have considered the first reports of LNX's disclosures to third parties and then her evidence to the Kimpton and Mansell investigations, the Suitability Panel and to the Tribunal. I have then considered the evidence of direct witnesses she spoke and made disclosures to, being Ms Romanos, Mr Gafforini, LNX's aunt and LNX's school wellbeing coordinator. I have also considered the direct evidence of the applicant, the applicant's wife, GNE and CMR whom she lived with.
7. I note Ms Toohey spoke to Mr Gafforini about the 'picture' disclosure,[122] and she spoke to Ms Romanos about the 'shaving' disclosure.[123] Whilst LNX made the 'disclosures' to Ms Romanos, it was Ms Toohey who first reported them to Ms Doyle. LNX's aunt also reported LNX's disclosures to Ms Doyle and to Dr Vague. Less relevant is the evidence of the witnesses to whom LNX (or a direct report) did not make a direct disclosure, namely Mr Andrew Miller, Ms Natasha Sergent and Ms Laura Temple.
8. There were other relevant issues raised which were tangential to the allegations, such as the level of LNX's intellect and her sexual awareness, the sex education offered at her school, her exposure to prior sexual offending, as well as views expressed by various witnesses about the applicant's style as a foster carer. I have considered this evidence in so far as it is relevant to the proof of the Allegation particulars.
9. The issue to be determined for this review is whether LNX was sexually abused by the applicant whilst she was placed in his care as per Allegation 1 particulars (a), (b), (c) and (d).
10. As the Suitability Panel did not find Allegation 2 of physical abuse proven this is not considered.

30 January 2019 and 20 February 2019 Including You case notes

1. On 30 January 2019 LNX made a disclosure about a picture at her session with Mr Damian Gafforini. Her disability support worker Ms Romanos was present and made a case note which states:

[LNX] requested that I come into the session with Damien. [LNX] was talking about her friend at school [LNX's boyfriend] and how she knows his thing goes hard, a mans penis. I saw a picture of what it looks like, Damien asked [LNX] where she saw the picture, and then she said [the applicant] showed her in a book and said don't tell [the applicant's wife] she will get upset. Damien asked [LNX] what book kind, she said a picture book with people doing things. [LNX] gave no further information. [LNX] was not distressed when discussing the above and continued on with her session discussing various things.[124]

1. A comment was included in the case note which stated:

The Director spoke with Damien about what [LNX] had discussed in session. He stated that it is still unclear the context of what happened and we needed to wait until the next session or if she disclosed anything further [to] Including you supports, school etc, He wants to explore the type of book, if it was educational or pornographic.[125]

1. On 20 February 2019 LNX made a disclosure about 'shaving'. This disclosure was made to Ms Romanos while they were in the car together.
2. Ms Romanos' case note dated 20 February 2019 states:

Driving home [LNX] was extremely chatty and her subjects of conversation were many as per usual but out of the ordinary she disclosed the following; (her wording)

• - I have to shave my legs because I'm going to a Birthday party at Funfields and I need a new pair of bathers.
• - I shaved myself down there (pointed to her pubic area), I took it all off with [the applicant]'s shaver
• - Don't tell [the applicant's wife] she doesn't know but [the applicant] lets me use his shaver
• - Liz I'm not supposed to tell you but [the applicant] helps me shave my legs, he said I might accidentally cut myself.
• - I wasn't supposed to tell you
• - [The appicant's wife] doesn't know, she will get mad if she finds out but [the applicant] said he has to help so I don't cut myself.[126]

1. As noted in the chronology, LNX was placed into her aunt's care on the evening of 22 February 2019.
2. In her police statement dated 11 March 2019, LNX's aunt detailed her conversation with LNX on 22 February 2019. In her statement she states:

On Friday the 22nd of February 2019, I received a call at work from Claire who was [LNX]'s Berry Street Worker. I got the phone call about 5.00 pm. Claire was asking me if it was okay if [LNX] came to me this weekend for emergency care. Claire told me couldn't tell me what it was about but that they needed somewhere for [LNX] to go and that it was an emergency. I told her yes and that I would be home at 6.00 pm. I asked is someone could drop her off. [LNX] was going to come over after she had access with her dad, [LNX's dad].

I got home at 6.00 pm and [LNX] was already there. She came up to me and gave me a cuddle. I asked her how she was and told her how nice it was to see her. I still did not know what was going on. I asked [LNX] what was going on. She told me that [the applicant] shaved her legs. I asked her if [the applicant] shaved her legs because she couldn't. She told me that he just did it. I was a bit confused about her being here because [the applicant] shaved her legs. I asked her if he shaved anywhere else and she said, "No."[1]

I asked her if there was something else. She told me that [the applicant] touched her. I thought maybe he had smacked her. I asked her where [the applicant] touched her. She showed me. She put her hands on her breast and moved them around. I asked her to show me and she put her hands under my blouse. She didn't actually touch my breasts. I asked [her] if he touched her anywhere else. She said, 'Yes.' She said he touched her on her private parts and she did not like it. I said, 'Where does he touch you?' and she pointed at her vagina. I said 'Your vagina?' and she said yes. I asked her where this happens and she told me in the shower and when playing games. She told me that it happens after school.

I knew that there was another girl staying at the house. Her name is ... and I think she is a year younger than [LNX], 14 or 15. ... does not have a disability. ... is not there all the time. She goes and stays with her mum. I asked [LNX] if he touches ... and [LNX] said, 'He doesn't play with ... he plays with me.' [LNX] said that ... is in her room, that she closes her door and listen to music ... [LNX] described how it happens, it is like a game, where they chase each other. [LNX] said that it has happened more than once, several times.

I asked her if she asked him to stop and she said, 'Yes but he keeps going.' I asked her what else has happened and she said that she saw him naked in the bedroom and he made her sleep with him. I said, 'What does that mean?' I asked her if she has had sex with him? I asked her if he put his penis into her vagina and she said 'Yes.' I asked her where [the applicant's wife] was and she said she was on her cruise. [The applicant's wife] works hard and long hours. I can't remember when [the applicant's wife] went on the cruise but I know it was last year.

I then asked her what else has happened. She told me that he has shown her rude pictures. He has shown her photos of men's part and women's part. She said she didn't like it. [LNX] told me that he should get rid of that so I thought she was talking about photos in a magazine. [LNX] then told me that he showed a thing that looked like a penis and went, 'vzzzzz'. said, 'okay.' My head was spinning by this stage. I said, 'Oh a vibrator.' [LNX] told me that he threw it away so [the applicant's wife] would not see it.

I asked her if she had told anyone about this and she told me that she had told her dad that afternoon. She told me that her dad had told her that she must tell everyone that [the applicant] touched her everywhere. [LNX] has supervised visits with her dad. I asked [LNX] where the worker was when she told her father this and she said the worker was on the phone. I don't know which worker was with her.

By that point we had been talking for a while. My husband ... was also present. I immediately texted Claire and told her I had great concerns about something that [LNX] had told me. I told her I didn't know what to do but I knew that I had to report it to her. Claire then rang me. I told her what [LNX] had told me. I then asked Claire what was going on. She told me that she couldn't tell me. [127]

1. On the evening of 22 February 2019, LNX's aunt had a telephone call with Claire Doyle. The Berry Street record of that conversation states:

On 22/02/2019 [LNX's Aunt] contacted Claire Doyle (Berry Street Case Manager) at 20:30 and stated that:

• - [LNX] advised that her dad told her to tell everyone that [the applicant] touches her 'here' and 'here', indicating to her private parts with her hands 'when Tiffany is talking' (Tiffany McCann is the DHHS contact worker supervising access).
• - [LNX's aunt] advises that she had a long conversation with [LNX] around the truth, what the truth is and what is a lie.
• - [LNX] said that [the applicant] does touch her, he has touched her after school 'a few times'.
• - [LNX's aunt] asked has [LNX]'s dad ever touched her? She said no.
• - [LNX] stated that [the applicant] has helped her shave her legs.
• - [LNX's aunt] asked had she told anyone about this? She said she told her dad that [the applicant] touches her and that her dad told Tiffany McCann, and Tiffany told Claire and 'Claire talked to me about it'. (Claire Doyle did not receive this information from Tiffany or speak with [LNX] about any such matter).
• - [LNX] stated that she has also told Liz (Elizabeth), Including You Support Worker that [the applicant] touches her. This information has not been communicated to Berry Street by Including You.[128]

1. LNX's disclosures coincided with Ms Doyle leaving her role as LNX's case manager on the evening of 22 February 2019. Dr Tiffany Vague was a senior case manager and, as she knew LNX, she took on the role of case manager.
2. On 25 February 2019, Dr Vague had a telephone conversation with [LNX's aunt]. The Berry Street record of this conversation, provided to the Department, states:

On 25/02/2019 Tiffany [Vague][129] contacted [LNX's aunt], [LNX's aunt] stated that [LNX] disclosed the following information over the weekend:

• - When [the applicant's wife] was away on her cruise and [a young person residing with the applicant] was somewhere else he took his clothes off and was naked.
• - He has showed her a magazine that was inappropriate with pictures of male and female parts.
• - He showed her a penis that goes 'zzz', [LNX's aunt] said 'a vibrator?' and she said yes, and then [the applicant] said to throw it away so that [the applicant's wife] doesn't find out.
• - [LNX's aunt] asked [LNX] 'what other things happen? Do you say no?' She said 'I say no, and he just keeps going, he keeps touching me'.
• - [LNX's aunt] asked [LNX] 'does anybody else see this happen?' and LNX responded 'no there is another girl there called [GNE]. [GNE] locks herself in the room and she doesn't see because [the applicant] plays with me, he doesn't play with [GNE]. It is likely that [LNX] is referring to [GNE who] lives with [the applicant] in an unofficial capacity. She was previously supported by Berry St via a community referral, she was never placed in respite with [the applicant] while being supported by Berry Street. [CMR] is also known to frequent [the applicant's] property. She is friends with [GNE] and was previously supported by Berry St via a community referral. When supported by Berry Street, [CMR] received respite from [the applicant].
• - [LNX's aunt] asked 'why did you not say something sooner?' and she said 'I was scared'

- [LNX] kept saying 'he shouldn't have done that' and [LNX's aunt] kept responding 'no he shouldn't'.[130]

1. Dr Vague made a report to the police and organised for LNX to be interviewed by Detective Leading Senior Constable Rachel Buchanan from the Sexual Offences and Child Abuse Investigation Team (SOCIT). On 27 February 2019 Dr Vague was present at LNX's school when LNX was interviewed by SOCIT. but was not part of the interview.
2. Dr Vague stated to Ms Mansell that she spent the afternoon with LNX on 26 February 2019 and [LNX] did not say anything about the allegations and that '...[LNX] had a phone and she was really obsessed with her boyfriend ... calling her. She was just really fixated on has [LNX's boyfriend] called me, is he going to call me? Um, and she didn't mention [the applicant] at all.'[131]

1. LNX returned to school on 25 February 2019. She made a disclosure to her school wellbeing coordinator. In a case note sent to the Department, LNX's school wellbeing coordinator recorded the following conversation and disclosures by LNX:

Writer met with [LNX] to see if she was feeling ok and how she was going to manage her day at school.

[LNX]: 'I live with [LNX's aunt and uncle] now. [The applicant] he did something to me that was wrong. I have already told [LNX's aunt] that'

Writer: 'Are you feeling safe living with [LNX's aunt and uncle]'

[LNX]: 'Yes I am safe'

Writer: 'Do you want to talk about what you have told [LNX's aunt]?'

[LNX]: 'I am worried [LNX's aunt] might tell me off, but [the applicant] did something wrong, he shouldn't do that. He will get into big trouble. School doesn't know and my dad doesn't know that. [The applicant] shouldn't do that'

Writer: '[LNX] when you say [the applicant] touched you can you tell [me] where he touched you'

[LNX]: '[The applicant] did something wrong. He touched me my private parts.'

Writer: '[LNX] when you say private parts can you tell me what you mean?'

[LNX]: pointed to her vagina stating here and then pointed to her breasts and stated and up here.

Writer: 'So you have told [LNX's aunt] about [the applicant] touching you.'

[LNX]: 'Yes and I told [LNX's aunt] he had sex with me too... [the applicant's wife] doesn't know.'

Writer: '[LNX] when you say sex what do you mean'

[LNX]: 'To make babies'

Writer: 'Can you tell me anymore about what you mean by sex'

[LNX]: 'I don't want to talk about it. I feel like I want to be sick. My stomach is sick. I feel sick if I talk about it'.

[LNX]: gaged

Writer: Ok [LNX] we don't have to talk any more about it. I only have one thing we need to talk about and that is I need to ask you a question about truth and lies. Can you tell me what telling the truth is and what is telling a lie?'

[LNX]: 'The truth is when you say something and it happened'.

Writer: 'And a lie is'

[LNX]: A lie is when you say something and it's not happened'

Writer: 'So [LNX] when you tell [me] that [the applicant] touched you on your private parts and had sex, are you telling the truth or a lie?'

[LNX]: 'the truth cause it happen.

Writer: '[LNX] when you spoke to [LNX's aunt] di[d] you tell her the truth or a lie'

[LNX]: 'The truth. Cause it happen'

Writer: '[LNX] I am going to have to speak to your Child Protection Worker Sonia. Sonia or I will need to talk to police. Are police happy if we tell the truth or a lie'

[LNX]: 'The police want you to tell the truth. Police don't like lies. You can get into trouble'

Writer: '[LNX] I am going to ask one more time so what you have told [me] about [the applicant] is that the truth or a lie?'

[LNX]: 'It is the truth'[132]

1. In this case note there is reference to the applicant touching and having sex with LNX, but no reference to shaving or showering.

1. On 27 February 2019, Detective Leading Senior Constable Rachel Buchanan and Detective Leading Senior Constable Kerrie Gilroy interviewed LNX at school in the presence of LNX's school wellbeing coordinator. Detective Leading Senior Constable Buchanan listed the subjects covered in the interview with LNX during the VARE:
   • About [the applicant]
   • Touched me in the private parts
   • Breasts
   • Vagina
   • Bottom
   • He have sex with me in bed
   • Told me to take my top and shorts off
   • He did something
   • I think he put his penis in my vagina
   • He kissed these ones (pointed to her breasts)
   • Told [LNX's aunt]
   • Told her the truth[133]

1. On 13 March 2019, Ms Romanos made the following case note indicating a further disclosure by LNX. The case note states:

Collected [LNX] from School reception this afternoon and she presented herself in a very cheerful manner telling me that she had been on an art related excursion today.

[LNX] explained that she was also going to Queensland for the weekend with [LNX's aunt and uncle] thus asking me about the weather forecast.

Once in the car I reminded her that we had an appointment with Damien Gafforini, [LNX] appeared to have forgotten but immediately and without warning said the following.

'Liz I'm going to show you and Damien a rude picture that [LNX's boyfriend] sent me, it's on my phone and there are two people with no clothes on having sex' (she whispered the words 'having sex').

I asked if she was sure about the picture and sure that it was from [LNX's boyfriend]

[LNX] continued to tell me that she had told the teachers but wanted me to check also. We did so when we arrived in ... however I did not have my glasses and therefore I was not clear but [LNX] did show Damien and he has reported as per appropriate.

During our drive to ... [LNX] had also stated the following;

'I'm ready to talk to Damien about [the applicant] today!'

'Liz do you know about [the applicant]? I don't live with him anymore because of what he done to me'

'Liz I am very sad when I talk about it because he did something inappropriate to me. I don't know why he did that to me Liz?'

I responded with simply listening and reminded her that Damien was a very safe person to speak with and she immediately expressed that she would like me (writer) in the room with Damien so she could tell us both together ( her words).

I explained to her that she could have a chat with Damien first. [LNX] agreed and immediately asked to listen to her favourite music so we did and she sang along intermittently bringing up other subjects of interest eg Queensland, school friends and family (general conversation.)

During her time with Damien [LNX] did not ask for my presence in the room. [LNX] received a phone call from her friend whilst in the room which of course distracted her and she became extremely excited.

Once in the car and on our way to ... she listened to music, singing and Dancing the whole time. We purchased our dinner and afterwards [LNX] wanted to look for 'slime / putty' and made a personal purchase with minimal support at a $2 plus store. [LNX] finds this a very relaxing activity and spent some time moulding and playing with the light clay substance. We were making different things and guessing what they were and [LNX] disclosed the following;

'Liz I wanted to tell you something but I was so scared, I'm so disgusting (her use of words) with myself. ( [LNX] held my hand at this point and would not release it for some time during her disclosures) Remember I told you [the applicant] shaved my legs? Well he helped me in the shower too and touched me here and there ( [LNX] pointed to her breasts and genital areas ). Do you know Liz ? [the applicant] put, you know what men have (pointed to her genital area) he put it in there. [LNX's aunt] knows, I told her everything and I told the Police too. [LNX's aunt], she was crying because she is so scared I might get pregnant. Why did he do that to me Liz, why? I couldn't say stop, he just did it over and over. I was 14 years old when I first went to live there and it happened from the start / beginning ( can't remember which word she used ). Liz you're not going to talk to [the applicant] are you? I was so scared Liz, I wanted to tell you but you're not going to see him are you ? I don't live with him no more. ([LNX] May have been referring to handover when [the applicant] would speak to me, often asking [LNX] to go upstairs first.)

'[The applicant's wife] said she doesn't believe it but it's true, [LNX's aunt] believes me, do you Liz?

I responded by saying that I did believe her and she said;

'Thank you Liz you're always nice to me, you know I love you Liz'

I reassured her and explained that I was her Support Worker and she was safe. I explained that what had happened was wrong and that she did the right thing to tell someone she trusts and with whom she feels safe.

Nothing more was said, she needed to go to the Ladies and then we returned home to her Grandfather and Uncle ... [LNX] listening to music all the way home and did not appear distressed.[134]

Particular (a) - Whilst [LNX] was having a shower [the applicant] got in with her naked and he touched her vagina, bottom and breasts, then shaved her legs.

1. The notes of LNX's interview with Ms Kimpton from 11 September 2019 with respect to the applicant state LNX said:

• 'He touched me in the shower, there and there,' she indicated her breast and pubic region.
• 'I couldn't wash myself, I did, he came in when I was naked, getting ready for school, always had a shower in the morning, and in the night time, he came in the night time, he touched me. He said you better not tell no one as he would get into trouble. He just touched me he was not naked, he was with his clothes, twice he touched me.'

• 'I brushed my hair and my teeth. With a shaver, he did it twice, I didn't tell him someone else told him to do it. I wanna do it careful,[the applicant's wife] showed me how to do it. I can do it myself now. Did he shave anywhere else?, no, do you shave anywhere else on your body?, no. I asked her if I could shave myself, I asked her and she knew, then [the applicant] just came in. If I needed something I asked [the applicant's wife], not [the applicant]. I tell her can I shave it, she said ok, so I got the shaver and shaved myself, then [the applicant] came in, she was watching TV, then he helped me both of them, [the applicant's wife] saw [the applicant] help me and she told [the applicant] off. She was in the house, he got the cream.'
• 'He put the shaving cream on me and then I put it on him. On his chest, he put the cream on my boobs, it was shaving cream, he told me to touch his armpits, it was disgusting, and I did.'
• When shaving her legs what were you wearing, 'I had crop top and undies. He had his clothes on but he had his top off. A different time, he did it in the shower, with the shaving cream, then he told me to put it on him.'
• 'He was get ready, he was naked and I was not, I was trying to open it for [LNX's friend] then he put it on [LNX's friend] no he didn't put it on [LNX's friend] he put it on me, I got naked by myself again.'
• I was in the bathroom and he was in the shower, with me, and then he put, I don't know what he did, he put cream on me stuff, he told me to put it on his armpits and stuff, it was disgusting, [LNX's friend] wasn't there for that, she was busy with her mum.'[135]

1. On 19 March 2020, Ms Mansell interviewed LNX at school with a support person Hillary Field.
2. In relation to living with the applicant, LNX stated:

[LNX]: So I lived there when I was ... I don't know how long ago I was living there but 'cause until I think um, it was last year. It was year before when I lived there until I started. So I started, so when I went home, this was, this is where ... this is was last year, year before so after school I was in um, someone dropped me off, someone dropped me off at [the applicant]'s house so after school and he coming up from school so I went home have a shower 'cause I was smelly 'cause I was hugging with boys. I was hugging with my ex and I have a shower and I, I when the shower he was there too. He got naked with me and he um, he, he got naked and he was touching my private like my vagina and my boobs too and like I have to say it, arse. He touched there too and, and he shaved my legs too ...

[LNX]: I [say] fuck off to him. So yes, I say fuck off. Then he say, then he says no, he say no to me, like he give me attitude to me. And then he just, and then he hugged me and he kissed me on oh, God he kissed me on the lip and then he says if you tell someone he'll kill me.

[LNX]:...I got home, get changed, take my undies and my socks and then he went in there. He got, he, he got naked too. So he take his ... saw that, I saw his thing and I didn't like it.

[LNX]: So I saw his penis and it was, it was disgusting ever. So he go in there, he just, he just um, he actually, well he actually hugged me and he touched my arse and my vagina and my boobs. I didn't like that 'cause I was not been comfortable so and then [the applicant's wife] ... came in and say [the applicant], what are you doing? So I was there, I was naked but I was got...I got changed quick so 'cause I put my bra on, my undies. So [the applicant's wife] come in and say [the applicant], what're you doing with [LNX] and getting naked and stuff and then I say [the applicant's wife], it's not [the applicant]'s fault. It is [the applicant]'s fault. So she told me and [the applicant] off. Well she didn't tell ... me off. She told him off and then I got naked in my room and I shut the door.

[Ms Mansell]: So did [the applicant's wife] see [the applicant] naked?

[Ms Mansell]: Both of you naked in the bathroom or where were you when she s ...

[LNX]: I was in the bathroom. I was having a shower.

[LNX]: So she saw us, like she saw ... I, I know it 'cause I seen her coming in my room ... come in the bathroom and seeing me...So she...So she opened the door and I, I say to her why are you, why and you [the applicant] get naked? Then she says oh, are you guys in love? I say no. So she said to me and [the applicant].

[Ms Mansell]: Yep. So when you say he touched your boobs and your private parts and your bottom...how did he touch it?

[LNX]: Oh, just squeezing it and he was like, he was touching my, my hairy' cause I've got hair under there...

...really, and then he, and then he just shaved my legs and then the um, blood came out cause he did it hard and um, blood came out lots. Yeah.

[LNX]: Well he did one. He was washing my hair and rinsin' out so and then he put um, so he, he rinsed my hair. I, I don't know why. I, I should do it by myself but I forgot but he was...so he was this close. So he was, so he um, washed the shampoo. He got the shampoo and squeezed hard and when he rinse it all out he got the condition...conditioner and rinse out and then he, and then he say oh, don't tell no one. He, he?? (voice fading) me and he says if you tell someone I'll kill you and I'll punch you up he said to me.

[Ms Mansell]: And when he washed your hair, was it the same day or are they different times?

[Ms Mansell]: So was the shower the first time he did anything to you? What was the first time he did anything?

[LNX]: The shower first and then the after he have sex with me in his bed. The third one he went in my room and got naked by himself and ... I was with the clothes ... So he says, he says do you want to kiss me and then he says ... then I say ... I, I slammed the door on him. I slammed the door 'cause he was naked... 'Cause he had a shower by himself. I was not there. I was in my room doing something. So he followed and saying you wanna have sex with me again? I say no, no. So he pushed me and then he pushed the door on himself so ...[136]

1. In her evidence before the Suitability Panel LNX was asked when she was showering at the applicant's house, was there ever a time when one of the other girls would help her. LNX stated either the applicant's wife or one of the other girls helped '...me for the shower when I try and turn it off.'[137]
2. LNX was then asked 'And what about [the applicant]? Did [the applicant] ever help you in the shower?'.[138] LNX's answer and subsequent exchange with Dr Muphy was as follows:

[LNX]: Nah. I don't know what he was doing. He was - I didn't see him. I was doing by myself in there.

[Dr Murphy]: Do you remember whether you were always by yourself?

[LNX]: Yeah. Yep.

[Dr Muphy]: Can you tell me about shaving?

[LNX]: Shaving? He was - I didn't get help from him. I only asked [the applicant's wife]. Yeah.

...

[Dr Murphy]: And did [the applicant] ever help you with shaving?'

[LNX]: He did a little bit.

[Dr Murphy]: Can you tell me some more about that, [LNX]?

[LLNX]: Okay. He was putting the shave cream on the - yeah.

...

[LNX was then shown a diagram of a gingerbread person and asked to mark where the shaving cream was put on her, and LNX marked the middle of both of the gingerbread person's legs]

...

[Mr Gafforini]: Is that the only place? Was there anywhere else?

[LNX]: I dunno. I think it was that one.

[Dr Murphy]: And when you say you don't know, you think its that one, is that because - I'll give you two choices. Is it because you don't remember or is it because you don't like to talk about it?

[LNX]: I don't like to talk about it a little bit.

...

[Dr Murphy]: ...And di[d] you have clothes on at the time, [LNX]? Or were you naked?

[LNX]: I was covered with my clothes and probably in my undies.

...

[Dr Murphy]: Could you hold the picture back up again, please, Damien, so I can see it? Did anyone ever help you put cream on your arms?

[LNX]: No. It was just on myself. Yeah.

[Dr Muphy]: Did anyone help you to put cream on your tummy?

[LNX]: No. I didn't do that.

[Dr Muphy]: Did anyone help you to put cream on your breasts?

[LNX]: Nah.

[Dr Murphy]: Did anyone help you to put cream on your vagina or your vulva?

[LNX]: Oh, God. Yeah, I think [the applicant] touched it. Yeah, he helped me with it. Yeah.

[Dr Murphy]: You're doing a good job talking about it. You're being very brave.

[LNX]: Yeah.

[Dr Murphy]: Can you tell me a bit more about that, please?

[LNX]: Yeah, he was - I don't know what he did, but I didn't - I didn't - I dunno.

...

[Dr Murphy]: Okay, Can you tell me about what happened? So tell me a story from start to finish about the cream...

...

[LNX]: Okay So I would - I didn't - I didn't - I was in - he was -he was just there, then he - well, I did it myself, shaved my legs myself, then you (indistinct words).

...

Oh so he was doing the arm and leg, yeah.

[Dr Murphy]: So what were you holding in your hand?

[LNX]: I think a shaver or - no.

[Dr Murphy]: And what was [the applicant] holding in his hand?

[LNX]: I think the scream or something.

[Dr Murphy]: ... And then what happened next?

[LNX]: His - I don't know. He put the cream next to - well, he touched my - yeah, he was touching my thing, though I don't want to say it, though.[139]

1. LNX then was asked 'Was it your vagina?' and she stated 'Yeah.'[140]
2. LNX was asked to tell 'some more' about this and she stated:

[LNX]: Yeah. When I was in the shower, he put a - oh, I was naked, too, when he was - when he was trying to put the shower on, I think

...

Yeah, he was - he was putting it on and I was - I was still naked. I dunno why (indistinct) my undies and then my bra on and he never see it, yeah, so - - - '[141]

...

1. When asked 'Can you tell me, was this the only time that [the applicant] touched your vagina or did it happen another time?', LNX responded:

[LNX]: It just happened on this time, and he was touching my - yeah.

[Mr Gafforini]: Did you want to point to what else he was touching?

[LNX]: He was touching my breasts or something like that.[142]

1. LNX was asked whether she ever 'got a sore or itchy vagina or vulva?' and answered as follows:

[LNX]: Yeah I did ...

[Dr Murphy]: Can you tell me something about that?

[LNX]: Yeh, it was - it was itchy a little bit.

[Dr Murphy]: And what happened when it was itchy? Where did the itchy come from?

[LNX]: I dunno. I was shaving my vagina, I was shaving it, yeah.

...

[Dr Murphy]: Did you ever need a special cream for your itchy vagina?

[LNX]: Yeah, it was - I dunno. He put a cream on. I dunno.

[Dr Murphy]: Who poured the cream?

[LNX]: I think [the applicant] did, yeah.

[Dr Murphy]: And what happened with the cream?

[LNX]: He touch it, I think, vagina part.

...

[Dr Murphy]: ...Was this the same time as the time with the shaving cream or a different time?

[LNX]: The same time I think.

...

[Dr Murphy]: I want you to tell me all about the cream for the itchy vagina...

[LNX]:... I think it was a white cream...

...

[Dr Murphy]: And what happened?

[LNX]: He put it on, but...

[Dr Murphy]: Put it on where?

[LNX]: On my vagina, probably.

...

[Dr Murphy]: And could you tell me what room it was in with the cream for the itchy vagina?

[LNX]: I think it was in my room, my old room.

...

[Dr Murphy]: And did you have your clothes on or your clothes off?

[LNX]: I think clothes on.

[Dr Murphy]: ... And did he put the cream on your skin or on top of your clothes?

[LNX]: Skin.

[Dr Murphy]: And can you tell me how he got to your skin if your clothes were on? Can you explain what happened?

[LNX]: No, I dunno. I think he sort of pulled my undies down. I dunno.

...

[Dr Murphy]: Yep. And what were some of the words that he was saying?

[LNX]: He was saying like - like, 'Do not tell nobody about that.' Do not tell his wife or something.

...

[Dr Murphy]: So there was cream put on.

[LNX]: Yeah

[Dr Murphy]: Yep. And can you tell me whether that was on the outside of your skin?

[LNX]: I think it was inside.

[Dr Murphy]: So inside your vagina?

[LNX]: Yeah.[143]

1. Dr Muphy asked LNX 'Did you ever see [the applicant] naked?' and LNX responded:

[LNX]: No. He was in the shower. Probably still in the room.

[Dr Murphy]: So explain to me again? You've seen him the shower, have you? I missed that.

[LNX]: Well, I have, but I didn't - I didn't go in there. I didn't go in there. Only - yeah. When I wanna get something from the cupboard, he'd put his clothes on.

[Dr Murphy]: Okay. So he was naked to start but then he put his clothes on?

[LNX]: Yeah, because otherwise, I'd see that, so.

[Dr Murphy]: And did he say anything when you - so have I got this right? You went into the bathroom when he was in there having a shower?

[LNX]: Yeah.

[Dr Murphy]: And he was naked at the start?

[LNX]: Yeah.[144]

1. In cross-examination it was put to LNX that the applicant didn't put the cream on the itch. LNX stated 'Um. He did, I think.' She went on to state '...it did happen. I saw he was - he was putting the cream on my - m'mm. Um, he was touching there and putting the cream on there.' She said it was in her old bedroom.[145]
2. LNX stated after the applicant's wife came home from work '...I had a shower. And then [the applicant] would come in too ... He came in - um, he came in because the door was broken.[146] When questioned about the broken door, LNX stated '... the door was broken, I can see a hole. And [the applicant] was coming in when I was naked.'[147]

1. In his interview for the Kimpton investigation, it is recorded the applicant said:

[The applicant] advised that whilst he has shown [LNX] how to shave her legs: ie hold the blade, another young person in placement helped her. He advised that [LNX] had attempted it but she had cut herself. [another young person who lived with the applicant] (co-client) showed her how to do it. [The applicant] advised he gave direction about using the shaving cream and not making a mess but he left the girls to do it together. He denies he helped in any way with [LNX] shaving her pubic region.[148]

1. In his interview for the Mansell investigation, the applicant denied all particulars of Allegation 1 put to him.
2. In his evidence before the Suitability Panel, the applicant stated his shaving equipment was separate from the girls, and there was a shared can of shaving foam. In regard to LNX shaving, he stated '...the only thing I showed [LNX] was how to hold the razor and it was on her arm. I never even - it was a dry blade, and I said, "Hold it down".'[149] He denied assisting her shaving her legs.[150]
3. The applicant was asked by the Suitability Panel if he touched LNX. He stated he would give her a cuddle, which he described as 'totally avuncular'. He stated she would '...run to me and she would put her arms around me, and I'd hug her. Um, and that's about it.'[151]
4. In her interview for the Berry Street investigation Detective Leading Senior Constable Buchanan (who conducted the VARE with LNX) stated:
   • Charges were not authorised and the likelihood of prosecution was NIL.
   • No clear picture from [LNX]. She couldn't recall details or put any of the allegations into any context.
   • [LNX's aunt] was leading in her disclosures and when put to [LNX] she did not confirm the information. [LNX's aunt] asked specific and leading questions.
   • [LNX] story changed a few times, [LNX] provided no clear narrative.
   • [LNX] VARE was less clear than the disclosure interview.

• [LNX] made no mention of shaving cream being placed on her breasts or having to put it on [the applicant], no mention of any abuse occurring in the bathroom, being shown a vibrator, having [the applicant] shave her pubic region or being shown any type of pornography.
• A direct quote from [LNX] is as follows: 'He touched my breasts, vagina, bottom, I think he put his penis in my vagina.'

• She confirmed the information from Belinda Toohey about [LNX] being exposed to a male neighbour masturbating and being shown pornography.[152]

1. In her interview with Ms Kimpton, the applicant's wife stated GNE, who was living with the applicant, helped LNX shaving, and that the applicant gave them the cream and left them to it. The applicant's wife stated, 'We spoke about whether we can trust her with a razor. Acknowledged she would use it when we were not around. [GNE] offered to show her. [LNX] did the shaving but [GNE] was supervising.'[153]
2. In her evidence before the Tribunal, GNE said that LNX asked her if she would help shave her legs, and that she had said no but said she could show her how to do it. In relation to how she showed LNX, she said '[LNX] held the razor ... to her leg and I just told her directions and to wash the razor after and stuff.'[154]
3. GNE further stated LNX asked whether she would help her shave her vagina, and that she had said no.[155]

Particular (b) - That [the applicant] took [LNX] into his room and touched her breasts, bottom and vagina and asked to have sex with her

1. The first evidence of LNX disclosing the applicant touching her on her breasts, bottom and vagina is made to LNX's aunt on 22 February 2019.
2. In her police statement LNX's aunt states:

I asked her if there was something else. She told me that [the applicant] touched her. I thought maybe he had smacked her. I asked her where [the applicant] touched her. She showed me. She put her hands on her breasts and moved them around. I asked her to show me and she put her hands under my blouse. She didn't actually touch my breasts. I asked [her] if he touched her anywhere else. She said, 'Yes.' She said he touched her on her private parts and she did not like it. I said, 'Where does he touch you?' and she pointed at her vagina. I said 'Your vagina?' and she said yes. I asked her where this happens and she told me in the shower and when playing games. She told me that it happens after school.[156]

1. This evidence refers to the applicant touching LNX 'in the shower and when playing games', not in his room.
2. Berry Street records state that on the evening of Friday 22 February 2019, LNX's aunt told Ms Doyle '[LNX] advised that her dad told her to tell everyone that [the applicant] touches her 'here' and 'here', indicating to her private parts with her hands...'.[157]
3. LNX told her school wellbeing coordinator on 25 February 2019:

[LNX]: '[The applicant] did something wrong. He touched me my private parts.'

Writer: '[LNX] when you say private parts can you tell me what you mean?'

[LNX] pointed to her vagina stating here and then pointed to her breasts and stated and up here.

Writer: 'So you have told [LNX's aunt] about [the applicant] touching you.'

[LNX]: 'Yes and I told [LNX's aunt] he had sex with me too ... [the applicant's wife] doesn't know.'[158]

1. Detective Leading Senior Constable Buchanan interviewed LNX for the VARE on 27 February 2019. In her evidence to Ms Kimpton she stated:
   • A direct quote from [LNX] is as follows: 'He touched my breast, vagina, bottom, I think he put his penis in my vagina.
   • [LNX] said she believed they had sex. She said it occurred in the bedroom.[159]
2. In her interview with Ms Kimpton LNX stated:
   • 'He touched my arse, vagina and boobs, he touched them, I went in his bed, he take his top off, told me to take his pants off, you saw his penis, yes, I didn't touch it, he put it in my vagina. He just told me not to tell anyone. He said it when I used to live there.' 'I told [my aunt].'
   • 'I think 2 times, after school, when he did it, it hurt me. I put my clothes back on and went downstairs, and nearly killed myself. I told [the applicant] it hurts, and he said it doesn't hurt and he was in me for a long time, then he didn't do it later, It stopped when I told myself to stop, I didn't want to do it anymore, he asked me to do it with him, I didn't want to but he forced me, he grabbed me in my room and pulled me. That's a different time, I went to my room, and got changed, he came and talked to me, I said you are an idiot, I ran to the playground and cried. He is bad and he shouldn't have done that.'[160]
3. In her interview with Ms Mansell, LNX stated:

[LNX]: So I saw his penis and it was, it was disgusting ever. So he go in there, he just, he just um, he actually, well he actually hugged me and he touched my arse and my vagina and my boobs. I didn't like that 'cause I was not been comfortable so and then [the applicant's wife] ... came in and say [the applicant], what are you doing? So I was there, I was naked but I was got ... I got changed quick so 'cause I put my bra on, my undies. So [the applicant's wife] come in and say [the applicant], what're you doing with [LNX] and getting naked and stuff and then I say [the applicant's wife], it's not [the applicant]'s fault. It is [the applicant]'s fault. So she told me and [the applicant] off. Well she didn't tell... me off. She told him off and then I got naked in my room and I shut the door.'

...

[LNX]: So she opened the door and I, I say to her why are you, why and you [the applicant] get naked? Then she says oh, are you guys in love? I say no. So she said to me and [the applicant].

[Ms Mansell]: Yep. So when you say he touched your boobs and your private part and your bottom ...

[LNX]: Yeah.

[Ms Mansell]: ... how did he touch it?

[LNX]: Oh, just squeezing it and he was like, he was like touching my, my hairy 'cause I've got hair under there ...

...

[Ms Mansell]: On any other days did he do anything?

[LNX]: Well in the bed, he did some in the bed.

[Ms Mansell]: Tell me about the bed?

[LNX]: Well I was in my room.

...

[LNX]: I don't know. I was in my room doing my drawing. So he came in and he says do you want to come in a room and sleep with me? I say the ??? (mumbling) I say yes to him so he take his um, do I have to say this? He um, have sex with me in the bed. It was, it was disgusting. He was actually touching these too and down there and then my arse too. Oh, hah, hah, so he was touching these ones and he was, and then he um ...

[Ms Mansell]: When you say these ones, you're pointing to your boobs.

[LNX]: ...(mumbling) boobs and my vagina ...

[Ms Mansell]: Yeah.

[LNX]: ... and my arse too.

....

[LNX]: So he say all that to me and he says oh, you better told no one and he say he'll punch me up and he will tell, he will tell his family and the, the family would kill me. That's how he told me in the bed. He have had sex with me. He put, I do remember, he put his penis in my vagina. Yeah, he did.

[Ms Mansell]: And what happened after he did that?

[LNX]: I went the room. I went back, I went back in my old room oh, me and ... . Then when ... went have a shower, [the applicant] just have oh, he, well he did something. When I got out [the applicant's wife] told him off.

[Ms Mansell]: So was [the applicant's wife] in the house?

[LNX]: Yeah, she was.

[Ms Mansell]: When he took you into the bedroom?

[LNX]: Ah, yeah, but she was outside doing something.

...

[LNX]: So when she come out she heard me, she heard me um, like go in [the applicant]'s room and then she went downstairs and then she went the room and say [LNX], go away, and then she told me off.

[Ms Mansell]: And did you hear her speak to [the applicant]?

[LNX]: Nah.

...

[LNX]: [The applicant] was, he was, he was on... his, so his top was on. His undie was taken off so....

...

[Ms Mansell]: So can you remember any other things that he did? So there was the shower ...

[LNX]: Well ...

[Ms Mansell]: ... the bedroom.

[LNX] The bedroom. There, well he tryin'. So we both went in the kitchen and he nearly got, well he nearly got the knife and stabbed me.

[Ms Mansell]: When did he do that?

[LNX]: In the kitchen ...

[Ms Mansell]: Mm hm.

[LNX]: ... when I ... when he was making um, like um, it was dinnertime so he got it ... he went like, he nearly stabbed me right there, nearly.

[Ms Mansell]: What happened for that to happen? Like what was going on that that happened?

[LNX]: Oh, because I kept ... I swear at him. I say fuck off. Leave me alone. And then he says, then he says oh, I'm going to kill you if you told someone and then he nearly stabbed me there.

[Ms Mansell]: Did you tell him you were going to tell people about what he was doing?

[Ms Mansell]: Well yeah, and then I tell him I'm going to tell someone on you. Then he nearly full on got the knife and stabbed me there so ...

[Ms Mansell]: Do you remember what you told your Aunt ....?

[LNX]: Yeah.[161]

1. LNX's evidence to Ms Mansell was the applicant had sex with her. There is also evidence from LNX that the applicant asked to have sex with her as particularised.
2. Although LNX has stated that the applicant had sex with her to LNX's aunt,[162] Ms Romanos,[163] LNX's school wellbeing coordinator,[164] to Victoria Police in her VARE,[165] to Ms Kimpton as part of Berry Street investigation[166] and to Ms Mansell for the SureFact investigation[167] this is not particularised as an allegation of sexual abuse against the applicant.

Particular (c) - [The applicant] showed [LNX] a book that had adult sexually explicit photos and also showed her a vibrator

1. The 30 January 2019 case note by Ms Romanos states:

[LNX] requested that I come into the session with Damien. [LNX] was talking about her friend at school [LNX's boyfriend] and how she knows his thing goes hard, a mans penis. I saw a picture of what it looks like, Damien asked [LNX] where she saw the picture, and then she said [the applicant] showed her in a book and said don't tell [the applicant's wife] she will get upset. Damien asked [LNX] what book kind, she said a picture book with people doing things. [LNX] gave no further information. [LNX] was not distressed when discussing the above and continued on with her session discussing various things.[168]

1. A later comment was included in the case note by Ms Toohey, which stated:

The Director spoke with Damien about what [LNX] had discussed in session. He stated that it is still unclear the context of what happened and we needed to wait until the next session or if she disclosed anything further [to] Including you supports, school etc, He wants to explore the type of book, if it was educational or pornographic.[169]

1. On the evening of 22 February 2019 LNX's aunt had a conversation with LNX and in her police statement states:

I then asked her what else has happened. She told me that he has shown her rude pictures. He has shown her photos of men's part and women's part. She said she didn't like it. [LNX] told me that he should get rid of that so I thought she was talking about photos in a magazine. [LNX] then told me that he showed a thing that looked like a penis and went, 'vzzzzz'. I said 'okay.' My head was spinning by this stage. I said 'Oh, a vibrator.' [LNX] told me that he threw it away so [the applicant's wife] would not see it.[170]

1. In her evidence as part of the Kimpton investigation LNX stated:
   • 'That book, one is penis and one is vagina, he used to have a penis razor. They were real people's pictures, he reads it, he said it's when you have your period and you lay eggs. I know what that is, he was telling me about getting periods and about the penis. If you touch it, it is disgusting. He told me about penis and vagina. He put it away and then found another one. It was boys and girls. There were vaginas and penis.'
   • 'Movie and videos, I don't know. One of the movies the girls, I watched Sex the movie, the girl and the boy had sex, later she got pregnant, I stopped watching it and went to my room, he watched it, [the applicant's wife] was at work, It was just one movie.'
   • Books or magazines, 'books and reading with words, he was reading it to me. About periods, vaginas, penises and having sex, nothing else. I was shocked and It was disgusting.'
   • 'I told [my aunt], I told everyone, I told police, Damien and Liz know, you know now.'[171]
2. In her evidence as part of the Mansell investigation LNX stated:

[Ms Mansell]: ... Do you remember [the applicant] showing you pictures?

[LNX]: Ah, yeah. The book one. Oh, the book one.

[Ms Mansell]: Tell me about that.

[LNX]: So he um, he shown me one of the book. It was like the strange book ever. It was ever. She he showed me this strange book. So he was showing me the, the girl's vagina ...

[Ms Mansell]: Yep.

[LNX]: ... their peri ... period, their boobs, their arse and the back. He showed me the pages and it says boobs oh, God, I don't want to say this but he says vagina, like vagina means ... so it says boys too there. Boys have sex with girls. I, I know where these stuff is. Boys, if boys put penis in there that means they have babies and he's showing me the penis too, the book one too.

[Ms Mansell]: So was it an educational book or a grown up book?

[LNX]: It was occasion book.

[Ms Mansell]: Did you ...

[LNX]: It was a adult book.

[Ms Mansell]: And adult book ...

[LNX]: Yeah.

[Ms Mansell]: ... to show kids what sex is or is it just a book for adults to read?

[LNX]: The sex is. Yeah, the sex is. And then he show me the penis razor. I'm so sorry I haven't tell you about the razor yet.

[Ms Mansell]: Tell me about that?

[LNX]: That ... he was foolin' with ...he's doing this to me and I say please, don't do that. It's disgusting and he, he told me to do this too. I didn't.

[Ms Mansell]: What did he do?

[LNX]: He just went like this to the razor. He'd buzz it and then he buzzing my hand with his hand in my hand.

[Ms Mansell]: Sorry. Describe it to me. You're saying ...

[LNX]: So the, the penis, he, he used to have it. It was a, it was a razor. So the razor it was like red. I know the colour 'cause I saw it.

[Ms Mansell]: Yep.

[LNX]: So he put his finger in there and then he went ... he nearly did that.

[Ms Mansell]: You mean put it inside you? Is that what you're pushing?

[LNX]: He nearly put it inside me.

[Ms Mansell]: Yeah.

[LNX]: Yeah. He nearly put there. It was disgusting.

[Ms Mansell:] And you said it buzzed.

[LNX]: It buzzed. It just it zap because he ta ... he press it and when I, when I touch it I don't know when it ... I don't want to think um, about it 'cause it was a little bit um, it was a little bit disgusting and it was ??? (mumbling) and it was bloody ??? (voice fading) too.

...

[Ms Mansell]: And what did he do with it? What did he do with the red thing?

[LNX]: Oh, he just ... he, he'd chuck it ...

[Ms Mansell] Mm.

[LNX]: ... because his wife was saw it.[172]

1. In her evidence before the Suitability Panel LNX stated:

[LNX] So I remember - I just remember he was - he was using the razor and he showed me this - I don't wanna say it, but I have to. He was showing me this penis. Like, he had it in a - in a - in a drawer and he showed me it.

[Dr Murphy] And that was in a drawer, was it?

[LNX]: Yeah, and he showed me, it was a razor. And then he showed me a book of, like - like, I dunno, it was, like, breasts and - and - I dunno.

[Dr Murphy]: So that picture that you just drew for me - - -

[LNX]: Yeah.

[Dr Murphy]: What do you call that or what did - at the time, what did you think that was called?

...

[LNX]: 'Penis' or - yes, I usually call it that and then...

...

[Dr Murphy]: Okay. So can you - I got a bit lost there. Can you tell me what happened again? So you said that [the applicant] took that out of a drawer.

[LNX]: Yeah, yeah, he did. I - he shown it and he was saying to not tell his wife about it.

[Dr Murphy]: And what did he do with that, then?

[LNX]: Oh, it was just - it was a little bit making noises. I dunno. I didn't touch it.

[Dr Murphy]: M'hmm.

[LNX]: Yeah.

[Dr Murphy]: And what happened with it?

[LNX]: It just - it was - I dunno. He showed me it.

[Dr Murphy]: What colour was it?

[LNX]: I think red.

[Dr Murphy]: M'hmm.

[LNX]: Think it was red. I dunno.

[Dr Murphy]: And then what?

[LNX]: And then - and then it was making - I dunno, it was bright. Oh, I dunno. It was making noises like that.

[Dr Murphy]: M'hmm. Was it doing anything else when it was making that noise?

[LNX]: Nah, I can't remember.

[Dr Murphy]: M'hmm.

[LNX]: Yeah.

[Dr Murphy]: And was this the same time as the book or a different time as the book?

[LNX]: I think it was the same one. But he showed me, like, books of - yeah, like, I saw it. He - he was showing me half - a little bit, he was showing me, like - like, boobs and vagina or something like that.

[Dr Murphy]: Yeah. And was that in the book, was it?

[LNX]: Yeah, it was in a book and then he showed me the - the - yeah.

[Dr Murphy]: And what sort of a book was it, do you remember?

[LNX]: I dunno. I think it was, like, a - like, a private book. I dunno.

[Dr Murphy]: Did it have a hardcover or a soft cover on the book?

[LNX]: It had a soft cover when I was - well, yeah.

[Dr Murphy]: And do you know the difference between a book and a magazine?

[LNX]: Yeah.[173]

1. Mr Gafforini's clinical notes are not in evidence.
2. As part of the Mansell investigation he stated:

...well that's what I'm trying to recall. I can't remember exactly but it was definitely well in, in one of those conversations. It may have been um, in a conversation but prior to me going on holidays. Um, again, I'd have to double check my case notes. Um, but there, yes I definitely recall on one occasion she spoke about um, [the applicant] talking to her about sex and ah, giving her um, yeah, well showing a book, ah, showing her a book or magazine um, that ah, had ah, pictures of male genitalia. So what wasn't ascertained was that whether this was a book like, What's Happening to Me, or um, anything like that or whether this was a pornographic magazine. That was too hard to sort of work out.[174]

1. In his evidence before the Suitability Panel he stated:

[Chair] But we're talking here about some material which you've not seen, I gather, from what you say, which you did characterise as possibly pornographic, but on what basis do you say that, and how can you describe for us - obviously without having seen it in physical - but describe for us your understanding of the circumstances and the nature of the material that [LNX] said she saw?

[Mr Gafforini] So [LNX] described the fact that there was male genitalia in the images, um, and that what wasn't - what I wasn't able to clarify was whether it was a photograph or a drawn image.

[Chair] You attempted to sort that out, did you?

[Mr Gafforini] I asked some [basic] questions about, you know, 'Was this like a magazine? Was it like a book?'

[Chair] Okay. And did she help in any way to explain that?

[Mr Gafforini] No. She wasn't very clear.[175]

1. In cross-examination at the Tribunal hearing, Mr Gafforini stated he was not able to ascertain the exact nature of the book, which could have been educational.[176] It appears he did not get to explore what the type of book it was with LNX, whether it was educational or pornographic. He stated to Ms Mansell, '...it wasn't specific to um, something that's, your know, at that point I felt was pornography in nature, and so therefore, it was just left as it was with the intention when I came back I would have more conversation with her about that to clarify exactly what she said.'[177] He also stated that on 30 January 2019 the applicant rang him with concern for LNX's mental health as she was hearing voices.[178]
2. Mr Gafforini stated to the Suitability Panel:

...there was also a report that, um, she was exposed to - and this hasn't been clarified - potentially pornographic material, ah, which may have been related to an attempt at sexual education.[179]

1. After the session with LNX on 20 January 2019 Mr Gafforini went on leave and by the time he returned from leave, LNX had been removed from the applicant's care.[180]
2. Referring to LNX's disclosure to Mr Gafforini, at the Mansell interview, Ms Romanos stated:

[S]he brought up the fact that [the applicant] taught her about boys and erections and that she saw him having an erection or something like that and, and, and her wording again it's, it's difficult because that might have been the understanding I had but her wording um, is different, if you, if you know [LNX]. She didn't actually come out and say you know, he had an erection but she did say um, I know that it's a man's you know what and it went ... I think she said it went hard or something and then she talked about [the applicant] showing her books, books or pictures of people naked and that was with Damien, in the presence of Damien at the time. So that was another incident that I don't think I was expecting um, and um, I'm trying to think was there anything else?[181]

1. Ms Romanos also detailed a disclosure LNX made to her on 13 March 2109, 'Liz I'm going to show you and Damien a rude picture that [LNX's boyfriend] sent me, it's on my phone and there are two people with no clothes on having sex.'[182]
2. It appears from this case note that LNX had her own phone (it is not clear if she had one whilst she was living with the applicant) and was being sent pornography by her boyfriend.
3. In her evidence as part of the Mansell investigation Ms Toohey, who had reviewed Ms Romanos' case notes of this disclosure, was questioned why it took 22 days for it to be reported the Berry Street. Ms Toohey stated:

And when I spoke to Damien, who was the counsellor, I said to him that is that reportable? And he said what are we reporting? We don't know if that was in a book that was to help her with you know explaining sexual health or what have you. We don't have any context.[183]

[Chair]: ... [R]ight now as far as I understand it there was some uncertainty about how [LNX] had got to see a penis, or even an erect penis? Apparently in a book or we don't know whether it was pornographic material or a where did I come from type of book or whatever?

[Ms Toohey]: I'd heard that third-hand. Yes.[184]

1. Ms Kimpton notes the following statements from the applicant during her investigation:

The applicant denied all allegations of showing or having pornography or vibrator in the home. He advised that within their home he has chemistry books, encyclopedias and anatomy books but he denies reading them to her. He believes she was taught about penises and vaginas at school. He advised that one of the previous co clients... was sent some pornography by her boyfriend and [the applicant] had told her to delete it immediately. He was unsure if [LNX] saw this.[185]

1. The applicant told Ms Mansell during her investigation that another girl, two years younger than LNX, had pornography and he told her off and said he didn't want that around LNX.[186]
2. The applicant denied to the Suitability Panel showing LNX any picture or having a vibrator or dildo in the house.[187]
3. The applicant gave evidence to the Tribunal and denied ever having pornography in the house. He stated, '...at one stage we had a problem with one of the, um, other children actually and, ah, (indistinct words) a computer, ah, no books, so nothing else'[188] He also referred to finding pornography on [another young person who resided at the applicant's house] iPad. He was not sure how she had accessed it. The applicant further state: 'It was only when I found out what had happened between [another young person who resided at the applicant's house] and [LNX] that, um, I prevented her from having it. I think her boyfriend sent it to her or something.'[189]
4. The applicant's wife told Ms Kimpton with respect to pornography and vibrator:

No, none in the house. Never had pornography in the house, not even with our own children. There is no vibrator in the house. We have never used those gadgets.

I don't go to church, but I am religious. The applicant is not in to that stuff, we are more in to loving each other, intimacy. We don't have any, we have encyclopedias. We have text books. Not aware that The applicant read it to her.[190]

1. In her evidence before the Tribunal, CMR denied ever seeing pornographic books in the house, but that she had seen another young person who resided at the applicant's house search it on her iPad.[191]
2. GNE denied ever seeing pornography in the house.[192]
3. A picture book with people doing things sounds like an educational book. LNX referred to books 'About periods, vaginas and penises and having sex...' and told Ms Kimpton, 'I was learning about bodies at school and periods and I don't like it.'[193] LNX told Ms Mansell the book, 'the strange book ever', was about penises and periods.[194]
4. The applicant and the applicant's wife in their evidence stated they had educational books in the house such as Grey's anatomy but denied showing LNX. They deny ever having a vibrator or sex toy in the house.
5. I note LNX may have been shown pornography on another young person's iPad whilst she was living with the applicant. I also note in March 2019, LNX told Ms Romanos she had been sent what sounded like pornography on her phone by her boyfriend.

Particular (d) - That whilst [LNX] was watching television [the applicant] kissed her on the lips, touched her breasts, vagina and bottom in a sexual manner.

1. The Suitability Panel did not make a finding regarding this disclosure. As conceded by the SSR in closing submissions, there is very little evidence in relation to this allegation.
2. In her interview with Ms Mansell, LNX stated:

[LNX] Then the TV, then the um, the kitchen and then the table so...

...

[LNX] so he did something to me but when I was sitting I was watching Vampire Diaries by myself so he says to me ... he kiss me here on the lip and he full ons ... full on touched me, like my boob, my vagina and my arse so yep.

[Ms Mansell] Was it on the outside of the clothes or the inside of the clothes?

[LNX] The inside.[195]

1. It is not in dispute between the parties that LNX's IQ is 40.
2. LNX's aunt described her as having 'an intellectual disability and a mind of a 5 year-old.'[196]
3. LNX's school wellbeing coordinator described LNX as 'Aged 4-6 years old. She comes across a lot more capable than she actually is.'[197] Further, LNX's school wellbeing coordinator stated, '[h]er merging two stories into one is part of her disability. Think that now as time has passed it is more likely that all of that would mesh together into one big story.'[198] However, she stated to the Ms Kimpton that she '[b]elieve[s] the allegations are true. Doesn't believe she has crossed over events. What she has told her has remained consistent.'[199]
4. The applicant's wife described LNX to Ms Kimpton as having a low intellect and that she '...behaves like a five-year-old. Her understanding and logic are very low.'[200]
5. As part of the same investigation, Claire Doyle stated she '[b]elieves that [LNX] can recall events but struggle[s] with sequencing.'[201]
6. No expert evidence was called about the impact LNX's disability or IQ has on her understanding or recollection.
7. The SSR submissions sought to rely on Mr Gafforini's opinion that in a therapeutic context, it is not necessarily common for children to lie and that he does not believe LNX is lying.[202]
8. I am not of the view Mr Gafforini, who gave evidence as one of LNX's social workers, was qualified as an expert to give opinion evidence on whether or not LNX was telling the truth.
9. The SSR submissions also stated that lying is 'cognitively difficult' but did not call any expert evidence to support this.
10. The SSR also submitted LNX was credible because she appeared to be 'uncomfortable' when giving her evidence about the sexual abuse to the Suitability Panel and to the Tribunal. I note demeanour evidence is weak,[203] and I do not give weight to that submission.

1. LNX's school wellbeing coordinator told Ms Kimpton during her investigation, 'She is [a] pretty social young girl, gets along with her peers, she has had a fixation on boyfriends/girlfriends, a boy she had been friends with since prep...'.[204]
2. In her evidence before the Suitability Panel LNX's school wellbeing coordinator referred to occasions when LNX had gone to the school oval with [the first boy], and another time with [the second boy]. LNX alleged [the second boy] had touched her, but the evidence gathered by the school established she had sat on his lap.[205]
3. In her evidence before the Tribunal, LNX's school wellbeing coordinator was taken to a number of examples in school records of LNX reporting that she had been touched inappropriately at school by other students, reports which turned out to be incorrect. These included an incident on 24 February 2016 when LNX alleged a boy had touched her in the bushes, but upon checking, including the CCTV footage, her report was found not to be true and LNX admitted to lying.[206]
4. On another occasion, 3 March 2017, LNX is reported as stating to school wellbeing staff that she had been touched 'on my boobies and my bottom' and had told the class teacher of this, when in fact she had not.[207] On the same day she also said she had been touched inappropriately during a game of tag at lunch time which the teacher reported was not the case, she had been touched on the shoulder.[208] In her evidence, LNX's school wellbeing coordinator explained that, as touching was not allowed at school, sometimes students get confused regarding what is 'inappropriate' touching.[209]
5. In an email dated 12 October 2017 to the Department, LNX's school wellbeing coordinator outlined a number of reports that LNX had made and stated, '[LNX] is needing to be constantly reminded about boundaries and touching. Especially with boys that she identifies that she really likes. Her sexualised behaviour is highly concerning and the support she is receiving from [LNX's then treating counsellor] is so crucial.'[210]
6. In another case note from a care team meeting, undated but appearing to pre-date her placement with the applicant, LNX's school wellbeing coordinator records:

[LNX]'s sexualised behaviour at school towards boys or in her head her fantasy about what she wants and how it plays out. Her ability to understand between the reality of it and her fantasy. Ie X is her boyfriend and X is not wanting anything to do with her.[211]

1. On 26 October 2017, LNX's school wellbeing coordinator sent an email to the Department, noting LNX's 'behaviour has deteriorated' and her 'sexualised behaviour has escalated and she is approaching our kids who are more higher functioning very street wise and then treating her like dirt. [LNX] keeps approaching them despite being told not to. Staff needing to be highly vigilant of LNX at present.'[212] This was about the same time LNX moved in with the applicant.
2. On 12 February 2018, there is a report of LNX being in an out of bounds area with a boy whom she demonstrated he 'placed his arms around her moved his hands up cupping her breasts.' This event was reported to the applicant and to the police.[213]
3. In an email to Dr Vague, dated 21 March 2019 and after she had been removed from the applicant's LNX's school wellbeing coordinator asked for LNX to be taken to the school office if Berry Street staff continued to drop LNX at school earlier than 8.45am which is when school staff start duty. This was because '[LNX] is roaming around school and there are others who come into school early and I do worry about her interactions with a few other boys.'[214]
4. In his evidence the applicant could recall four instances of being informed by the school about incidents occurring between LNX and boys.[215]
5. The applicant's wife described LNX to the Kimpton investigation as:

[Q]uite sexual, very sexual focussed. Often disappearing from school running off to the oval with boys and says she doesn't know why they did it.

...

She was obsessed with TV character and would say she had sex with the character.'[216]

1. The applicant's wife described the applicant taking her to school so as to be just on time so she could not run off.[217]
2. Andrew Miller was LNX's Berry Street case worker before Claire Doyle. His evidence was the team leader made a decision 'it would be more appropriate' for LNX to have a female case worker.[218]
3. Dr Vague stated to Ms Mansell, in respect to Andrew Miller:

[H]e was her first case manager but we actually um, we stopped them from working together because it was pretty apparent that [LNX] was developing a real crush on Andrew, like he's um, a young guy, he's really lovely, like he was really attractive to her, so she was getting somewhat obsessive about Andrew. So we ended that and um, Claire Doyle...became the case manager. I think he was the case manager until the middle of 2018.[219]

1. Further, Dr Vague told the Suitability Panel LNX '...was becoming more romantically fixated on Andrew, and that was meaning that he wasn't able to work effectively with her.'[220] At the Tribunal Dr Vague gave evidence that she recalled '...seeing [LNX] with [Mr Miller] and just being very giggly and I think trying to be very physically affectionate...'.[221]
2. Mr Gafforini described LNX as 'boy crazy.'[222]
3. In his evidence to Ms Mansell the applicant described LNX as '...very attached to me, jealously attached to me. Didn't even want [the applicant's wife] to come home sometimes.'[223] He also stated, 'I wanted a safety plan for [LNX] because every time she went to school she did not stay away from the boys.'[224] At the Tribunal hearing he also described her as imagining things that were not true, such as having sex with Spike, a TV character.[225]
4. GNE described her relationship with LNX as 'close'. She gave evidence that LNX would talk about Spike and her boyfriend from school 'every day'. Some of the conversations GNE had with LNX included LNX saying that, if a boy walked past and looked at her, that the boy was 'in love with her.'[226]
5. GNE gave examples of things LNX would say that did not happen, including that LNX saying a lot that she had 'sex with Spike'. GNE also gave evidence of witnessing LNX masturbating in the living room.[227]
6. CMR also gave evidence that LNX once came downstairs saying 'she had sex with Spike.' CMR said that she told LNX 'No you didn't' and LNX responded by saying 'Yes I did' and insisted it was true.[228]
7. The applicant's wife described LNX as masturbating regularly, on the couch and in front of everyone.[229]
8. Two family friends of the applicants gave evidence that they witnessed LNX masturbating in the lounge room while other people were present, including the applicant's wife.[230]
9. One of the SSR submissions as to why LNX should be believed over the applicant contends that the applicant was hyper protective about her contact with young males. Whist I am not satisfied the characterisation of the applicant's concern as 'hyper protective' is necessarily accurate, the above evidence demonstrates the factual basis for his concern.

1. Regarding sexual education, LNX's school wellbeing coordinator stated:

The school provides some level of sexual education. What they get depends on the children needs and the class in general, specialised teachers that are trained in delivery Sex Ed, cyber safety. Believes they would use some visual aids, images of penises and vaginas, Sex Ed starts in prep and goes right through. We have plastic penises if they are having sex. It sits in line with the curriculum but there is scope to extend as needed. [LNX] may get limited amounts given she sees Damien to support her with that.[231]

1. The evidence suggests through sex education at school and through an iPad at the house, LNX was exposed to sexual images and may also have seen plastic penises. Another young person in the applicant's house had pornography on her iPad. If LNX saw the pornography she may have seen sex related devices.

1. LNX's school wellbeing coordinator gave evidence to the Suitability Panel and the Tribunal of LNX making a disclosure to her about her step-siblings inappropriately touching her, when she was in secondary school, which she never retracted.[232]
2. In her evidence to Ms Kimpton, LNX's school wellbeing coordinator described that during a 'Safe Touch' program at school:

[S]omething clicked for her, she identified scenarios that applied the rules. It was not ok for [LNX's stepsister] to tell me to touch [LNX's stepbrother]'s penis. Discussion continues and she says that when I lived at the [LNX's previous home], [LNX's stepbrother] touched me lots of times, she made that disclosure on 22/7/2017.[233]

1. Further, Ms Toohey reported to Ms Kimpton that:

[LNX] was also a witness to paedophile - A neighbour, showed her pornography and was masturbating in front of her... [LNX] was exposed to numerous sexual offenders.[234]

1. In her evidence to Ms Mansell, when asked, 'was [the applicant] the first person that ever did that?' LNX stated,

[LNX]: Yes, The ...he's the first person that 'cause had sex with me.'

...

[Ms Mansell]: Was he the first person to touch you...on your boobs and on your ... vagina and on your backside?

[LNX]: Yep. All that. Yep.

...

[Hillary Field]: The very first person?

[LNX]: Yep. The very, very, very first person.

[Ms Mansell]: So nobody else did those things to you?

[LNX]: No.

[Ms Mansell]: No. Is there anything else you can remember?

....

[LNX]: ...somewhere, I used to live with [LNX's stepmother]. That's the problem. I haven't told you about her son yet. He have sex with me too. [235]

1. In February 2018 LNX disclosed she was sexually assaulted by one of the other girls living with the applicants. The matter was investigated by Berry Street and substantiated and the girl was removed from the house.[236]

The applicant's interactions with Berry Street and Including You

1. In her evidence to Ms Kimpton, Ms Doyle described challenges working with the applicant. She stated 'The applicant will tell you how it is, "I'm old and we do things my way"...'. Ms Doyle gave further evidence that '...in order to work with him you have to tailor your practice but I know I shouldn't. We all believed there was a lovely relationship between the two of them and felt we needed to work around the challenges.'[237]
2. Ms Toohey reported to Ms Kimpton that, when LNX moved in with the applicant, she '...raised concerns about [the applicant's] understanding of [intellectual disability]. Questioned the personal care of male providing the primary care, was reassured [the applicant's wife] would provide any personal care to [LNX].'[238] She also described the applicant as:

[A]lways aggressive and knew it all, we spoke in length in care team meeting around her trauma and ways to manage the behaviour, he would put her down, she has the mind of goldfish, interrogated staff when they were there, he was questioning them around stuff that was not his business.

...He was combative.'[239]

1. In her interview with Ms Mansell, Ms Toohey referred to the applicant's negativity about LNX. She found it odd Berry Street allowed him to attend the care team meetings. In her evidence there were 'red flags...from the get go.'[240] For example, the applicant was a man in his seventies. Ms Toohey said, to the Suitability Panel, that he was oppositional about her going to respite and oppositional about her seeing Damien Gafforini.[241] Ms Toohey stated to Ms Mansell:

I was addressing this with Berry Street at every opportunity and was being shut down, even right up to the, the day of her removal, I was accused of lying to Berry Street which I'll get to. Hah, hah. So, the red flags that really came up for me was um, I think it was in the January [2019].[242]

1. Ms Toohey's opinion was that Ms Doyle was 'groomed' by the applicant and she stated to Ms Kimpton that Ms Doyle 'was the biggest blocker.' [243] She referred to three red flags in her interview with Ms Mansell, being (one) the reference by LNX to the applicant showing her a picture of an erect penis, (two) the discussion at the case management meeting about her menstrual flow and (three) LNX's disclosure about the applicant helping her shave her legs, and that after raising these with Berry Street she stated, 'I was pretty much mocked by Claire.'[244]
2. Ms Toohey then stated to Ms Mansell that:

Including You was being chastised for reporting the red flags and then she told her Aunty an hour later that [the applicant] had been raping her for twelve months and [LNX's aunt] then rang Claire and said I have [LNX] sitting here telling me that [the applicant] has been raping her for twelve months.[245]

1. Mr Gafforini stated to Ms Kimpton, 'It was possible that the way the applicant was behaving was of a grooming nature, my take was he was "old school".'[246]
2. The applicant has described himself as 'direct, tactless and insensitive' however he did not choose to be aggressive.[247]
3. The applicant's wife stated to Ms Kimpton '[h]e has always been intolerant to fools, and is outspoken but not angry, can look angry. He doesn't hold back and speaks his mind and is a very honest person.'[248]
4. Ms Toohey raised a number of concerns about the applicant's behaviour, that he groomed Ms Doyle, that he did not want LNX to see male professionals, that he was inappropriately aware and privy to LNX's intimate personal hygiene. She described the applicant's knowledge about LNX's menstrual flow as 'a concern for me.'[249]
5. I will consider one example. Ms Toohey gave evidence describing of the applicant's knowledge of LNX's periods as a 'red flag'. LNX's other care workers found this normal, including Ms Doyle and Mr Gafforini.
6. Ms Toohey's evidence to Ms Kimpton was that:
   • [LNX] gets her period and gets distressed, she told Damien she gets distressed and is in a lot of pain. [The applicant] is present for the whole meeting. [LNX's aunt] said, she is losing a lot of blood and in pain. [The applicant] advised that she manages her periods fine, can you explain about how you know about her menstrual flow, he said I do the washing, I have other girls that get their periods, she doesn't always dispose of her pads correctly, that's why he knows. This was a concern for me.[250]
7. In her interview with Ms Mansell, Ms Toohey stated that '[the applicant] also made comments around that if that happens, she'd become rather promiscuous.'[251]
8. In a care team meeting note from a 10 October 2018 meeting, it is recorded the following occurred:

Menstrual Management. There was discussions about her having the implant. [LNX] struggles to manage her period.

[LNX's father] was against this before.

[LNX's father] thinks that 'if [LNX] is on the pill, that might make her sexually

Maybe he needs to understand it is not explicitly for this reason, but also to manage her period.

Conversation with [LNX's father] to be had around this.

[The applicant] outlined that [LNX] panics a bit, complains about pain a little bit. Very uncomfortable. Personally aware of her hygiene. Anything she needs advice on [the applicant's wife] talks to her.[252]

1. LNX's aunt stated generally LNX could manage her period 'okay'.[253]
2. Ms Doyle did not have an issue with the applicant being the primary carer for LNX or knowing about her menstrual cycle as '[h]e needed to know how she was going physically and so he could support her. She was good at supporting her own period, she would do it, I know that this was a flag for some people but it wasn't for me, he would need to know about this.'[254]
3. Mr Gafforini also stated in relation to the applicant's knowledge of LNX's menstrual cycle, 'Its important for a carer to be able to support her with it, understand he was responsible for her primary care...'.[255]
4. LNX's school wellbeing coordinator referred to a meeting when a discussion about LNX's menstrual plan came up, but she wasn't concerned about the conversation content.[256]
5. Another concern Ms Toohey raised was that the applicant had expressed concern regarding males involved in her care.
6. In closing submissions, the SSR made the following concession:

Since the Suitability Panel hearing there has been further evidence. For example, the evidence before the VCAT appears to be that there was a preference for [LNX] to have a female paediatrician and that the applicant was concerned about Mr Gafforini re-traumatising [LNX] (not that he was a male practitioner). It cannot on the current evidence be suggested that the applicant was inappropriately determined to remove male practitioners from LNX's care. Further, it is accepted that the evidence that the applicant took a considerable interest in [LNX]'s sexual health is slim.[257]

1. In my view, Ms Toohey was deeply upset by the email from Ms Doyle querying her reportage about the contents of the case notes on 22 February 2019 that led to LNX's removal from the applicant's residence. This is illustrated particularly in her interview to Ms Mansell. In my view this impacted the objectivity and impartiality of her evidence. I give less weight to her evidence of her concerns about the applicant and her criticism of Ms Doyle.

1. LNX has a significant disability and an IQ of 40 which is not in dispute. It is not in dispute she has a '...trauma background and has been the previous victim of physical and sexual abuse.'[258]
2. I am not satisfied the Allegation and particulars against the applicant are established on the balance of probabilities taking into account the gravity of the allegations against him for the following reasons.

1. The best evidence is the notes of LNX's disclosure to Ms Romanos. The earliest reports are more likely to be complete and accurate.
2. The case notes written on 30 January 2019 and 20 February 2019 do not disclose sexual abuse by the applicant. Mr Gafforini, who was present for the 30 January 2019 disclosure, did not consider it a disclosable incident of sexual abuse and wanted to explore it further with LNX. I reject the SSR submission LNX should be believed over the applicant because Ms Romanos and Mr Gafforini, to whom she made her 'first sexual abuse disclosures' did not 'fish' for information.[259] The words in the case note are 'I saw a picture of what it looks like,' which is ambiguous as to whether it meant a penis or an erect penis. The definition of 'sexual abuse' used by the Suitability Panel states, 'sexual abuse involves a sexual or indecent element.' Mr Gafforini did not consider it concerning.
3. In her evidence in chief at the Tribunal, Ms Romanos stated when talking about shaving her groin area LNX stated, '[the applicant] helps me with that.'[260] Ms Romanos stated, 'I wouldn't document something like that if she wasn't clear about what she'd said and I didn't understand it correctly.'[261] When it was pointed out her file note did not state this, she responded, '...at this time she may not have referred to [the applicant] shaving her down there at this particular time.'[262] She stated she recalled at some stage LNX saying [the applicant] would help shave her vagina but that it might not have been on this occasion.[263]
4. In cross-examination Ms Romanos said that she thought there was another case note where she recorded the applicant shaved her vagina. When it was put to her there was no other case note, and the evidence about the applicant shaving LNX's vagina may be a mistake, she stated didn't 'think it was a mistake, I think I'm tired and I - I'm confused now, you've completely confused me.'[264]
5. In her interview with Ms Mansell, Ms Romanos described LNX and the applicant as 'almost like two people in a relationship'.[265] Ms Romanos said that, after being placed with the applicant's, LNX would put her face near hers as if she could kiss me and she witnessed this happening between LNX and the applicant.[266] Ms Romanos also gave evidence as to physicality between them such as LNX lying on top of him on the couch and LNX sitting 'beside him very close, on his lap.'[267] In her case note of 20 February 2019, she also made a reference that '[the applicant] caressed her face.'[268]
6. There is evidence of physical contact occurring between LNX and the applicant. The applicant described LNX as very physical, for example, when she got home with Ms Romanos, '[LNX] would run in, she'd be excited to be home, and then she'd come slap me, very physical, and I was on, um, blood thinner type medicine, and I bruise easily, so she was very rough.'[269] The applicant also described LNX as 'expressive and very affectionate.'[270] He was asked about the observation by Ms Romanos that LNX jumped on [the applicant] and was lying prone on him which he appeared not to discourage. The applicant stated:

[B]ut the fact is that [LNX] was a - vigorous, um, um, expressive, affectionate if you like, and, um, I had, ah, heart and back problems then, and I couldn't just slide her off, not that I would, but I would gradually ease her off and say 'Look, [LNX]', you know, 'go easy' or something like that. I didn't go crook at her for doing it. I didn't - I get why she did it, and, ah, she just gets excited, but I get bruised and it's dangerous for me.'[271]

1. In a Berry Street case note from a care team meeting dated 10 September 2018, it is noted, 'Claire has seen the love that [LNX] has for [the applicant] and [the applicant's wife] through physical affection and also through chats regularly had with [LNX] about her placement.'[272]
2. I accept there was evidence of mutual affection between the applicant and LNX.
3. Ms Romanos told the Suitability Panel that LNX said [the applicant] helps her wash her hair in the shower.[273] She also stated to Ms Mansell and the Suitability Panel that when she was in the room with Mr Gafforini, LNX 'brought up the fact that [the applicant] has taught her about boys and erections and that she saw him having an erection...'.[274]
4. The applicant denied ever washing LNX's hair but stated he did help apply 'nit stuff' to her hair in the bathroom when fully clothed.[275] There was no record in her case note dated 30 January 2019, or any other case note, about LNX saying she saw the applicant's erection. The case note is contrary to her evidence to Ms Mansell's investigation and to the Suitability Panel. There is no case note about the applicant helping LNX to wash her hair in the shower.
5. Ms Romanos was a well-meaning but unimpressive witness. Her memory was inaccurate, and she appears to have given inaccurate evidence as to what LNX disclosed to her to Ms Mansell and the Suitability Panel. The inaccuracies in her evidence are demonstrated from the case notes, despite her evidence she would only document something that was LNX was clear about and that she understood.
6. She also gave evidence to Ms Mansell and the Suitability Panel about the appropriateness of LNX and the applicant's relationship, which was never communicated as a concern in her case notes or communicated to Berry Street or the Department. Whilst she described in her case note the applicant 'caressing' LNX's face, this was not communicated as a concern to Berry Street. These concerns, which were investigated in cross-examination were described by Ms Romanos as 'a gut feeling' and that she had a 'sixth sense' when working with people like LNX.[276]
7. I am of the view the best evidence is Ms Romanos' contemporaneous case notes of what LNX said at the time. I give less weight to her evidence to Ms Kimpton, Ms Mansell, the Suitability Panel and the Tribunal, which I found was confused and unreliable. It was inaccurate in respect of LNX's two disclosures. Further, it appeared to retrospectively paint a negative and concerning picture of LNX and the applicant's relationship which she did not raise as a concern to anyone at the time.
8. As indicated in her email dated 22 February 2019 cited above, Ms Doyle was most concerned about the disclosure when she compared Ms Toohey's telephone report to the Including You case notes. Ms Toohey has since denied stating to Ms Doyle that the applicant shaved LNX's vagina. At the Tribunal hearing she conceded in evidence in chief she could be wrong and confirmed in re-examination that she may have told Ms Doyle the applicant helped LNX shave her vagina.[277]
9. The SSR submissions conceded that oral information provided from Including You did not match the case notes and there was a delay in reporting.[278]
10. In her interview with Ms Mansell, Dr Vague stated that '...if we'd just been supplied with the case notes [from Including You] we wouldn't have removed [LNX] in the first place.'[279] Dr Vague was a highly qualified and experienced child protection practitioner who gave intelligent and nuanced evidence.
11. In my assessment of the above evidence LNX was removed from the applicant on the basis of incorrect information communicated to Berry Street and the Department.
12. When the decision was made to remove LNX she did not return to the applicant's. It is not known whom from Berry Street took LNX directly from access with her father to LNX's aunt's house or what she was told.
13. The next evidence chronologically is LNX's disclosures to LNX's aunt on 22 February 2019.

1. The question is whether LNX's aunt's questions influenced LNX's disclosures. In my view LNX's evidence has been influenced by LNX's aunt's questions and positive reinforcement as well as by the questioning and positive reinforcement during subsequent interviews. The evidence is unclear as to whether LNX's aunt was told by Ms Doyle not to question LNX. Ms Doyle told the Suitability Panel that it's her usual practice, but she did not recall telling LNX's aunt as she only spoke with her after LNX was in her care.[280] In her police statement LNX's aunt stated, 'Claire told me [she] couldn't tell me what it was about but that they needed somewhere for [LNX] to go and that it was an emergency.'[281] When LNX's aunt arrived home, LNX was already there.
2. The content of LNX's aunt's police statement is detailed above.[282] The SSR concedes LNX's aunt asked LNX leading questions, noting if the Tribunal accepts LNX did disclose to Mr Romanos that the applicant shaved her vagina, then '...the suggestion that LNX's aunt asked leading questions and impacted the investigation ought to be given less weight.'[283]
3. The SSR submits the Tribunal should be satisfied that LNX did disclose to Ms Romanos on 20 February 2019 that the applicant did help shave her vagina. I note this is not one of the particulars of sexual assault alleged against the applicant. There is no documentary evidence that LNX ever said that the applicant helped to shave her vagina. I reject the premise of the SSR submission and reject that the impact of LNX's aunt's leading questions on the investigation be given less weight.
4. Detective Leading Senior Constable Buchanan told Ms Kimpton that '[LNX's aunt] was leading in her disclosures and when put to LNX she did not confirm the information. [LNX's aunt] asked specific and leading questions.'[284] Detective Buchanan also noted in her evidence to Ms Kimpton '[LNX] made no mention of shaving cream being placed on her breasts or having to put it on [the applicant], no mention of any abuse occurring in the bathroom, being shown a vibrator, having [the applicant] shave her pubic region or being shown any type of pornography.'[285]
5. The Mansell report stated in its findings, 'Mr Gafforini believes [LNX] is capable of making disclosures that are true and so [does] [LNX's aunt], but both agree that she needs to be led due to her intellectual disability. They state you have to ask the correct questions.'[286] I note this not to criticise the findings but to note the use of leading questions by LNX's aunt is not in dispute. I also note it suggests Mr Gafforini has no issue with asking LNX leading questions however he was not questioned about this at the hearing.
6. In my view the reliability of LNX's evidence has been compromised by the innocently asked, but leading questions, of LNX's aunt. Police are familiar with appropriate interviewing techniques for child complainants in sexual assault cases and use questions encouraging narrative responses and avoid asking leading questions or questions requiring a yes or no response.
7. In the request for brief not authorised, Detective Leading Senior Constable Buchanan detailed the questions asked by LNX's aunt as follows:
   • The victim came to stay at her place on the night of the Friday the 22nd of February, 2019.
   • This was at the request of the victim's Berry Street worker, [LNX], as they needed emergency care for the victim for the weekend.
   • Claire did not say why the emergency care was needed.
   • When asked what was going on the victim said that accused shaved her legs.
   • The victim was asked if he shaved her anywhere else and she said, 'No.'
   • The victim was asked if anything else was going on and she said that the accused touched her.
   • The victim was asked where the accused touched her and she put her hands on her breasts and moved them around.
   • The victim then showed what he did.
   • The victim was asked if he touched her anywhere else and she said, 'Yes.'
   • The victim said that he touched her on the private parts and she did not like it.
   • When asked, 'Where does he touch you?' the victim pointed to her vagina.
   • When asked, 'Your vagina?', the victim said, 'Yes.'
   • The victim was asked where it happened and she said in the shower and when playing games.
   • The victim described the games, where they chase each other.
   • The victim said that it has happened more than once.
   • When asked if she had asked him to stop the victim said, 'Yes but he keeps going.'
   • The victim was asked what else has happened and she said that she had seen him naked in the bedroom and he made her sleep with him.
   • The victim was asked, 'What does that mean?' and did she have sex with him, the victim said 'Yes.'
   • The victim was asked if he put his penis into her vagina and she said, 'Yes.'
   • The victim was asked where [the applicant's wife] was and she stated on her cruise.
   • The victim was asked if anything else happened and she said that he had shown her rude pictures.
   • He has shown her photographs of men's parts and women's parts and she didn't like it.
   • The victim said that he had shown her a thing that looked like a penis and went, "vzzzzz".
   • That he had thrown it away so [the applicant's wife] would not see it.
   • The victim was asked if she had told anyone about this and the victim said she had told her dad that afternoon.
   • The victim said that her dad had told her that she must tell everyone that the accused touched her everywhere.[287]
8. In the recommendations Detective Leading Senior Constable Buchanan includes the following considerations:

The accuracy of the victim's statement is in question due to her inability to place any content around her disclosures.

In the statement of recent complaint from the maternal aunt ... direct questions have been asked to illicit that information from the victim. These words used by [LNX's aunt] are the exact same words used by the victim in her statement.[288]

1. LNX's aunt is not the only one who asked LNX leading questions. The questions are not included in the Berry Street report. In the Mansell report the transcript of the interview with LNX includes questions such as 'So was the shower the first time he did anything to you? What was the first time he did anything?',[289] 'Do you remember [the applicant] showing you pictures?',[290] and 'Was he [the applicant] the first person to touch you... on your boobs and on your...vagina and backside?' to which LNX answered 'Yep. All that. Yep.'[291]
2. In the interview with the Suitability Panel LNX is asked questions such as 'Did [the applicant] ever help you shower?', 'And did [the applicant] ever help you with shaving?' and 'Did any one help you to put cream on your vagina or your vulva?', with LNX responding to the latter with 'Oh. God. Yeah, I think [the applicant] touched it. Yeah, he helped me with it. Yeah'. [292]
3. The impact of leading questions on LNX's disclosures also tends to lessen the weight I give to the SSR submission that on every occasion LNX has given evidence consistent with sexual abuse.
4. There are also instances of LNX's disclosures being incorrectly re-stated back to her in conversations and interviews.
5. For example, on 25 February 2019 when LNX spoke to LNX's school wellbeing coordinator it is recorded that:

Writer: 'Do you want to talk about what you have told [LNX's aunt]?'

[LNX]: 'I am worried [LNX's aunt] might tell me off, but [the applicant] did something wrong, he shouldn't do that. He will get into big trouble. School doesn't know and my dad doesn't know that. [The applicant] shouldn't do that'

Writer: '[LNX] when you say [the applicant] touched you can you tell [me] where he touched you.'[293]

1. LNX has not stated that the applicant touched her.
2. In another example, when being interviewed by the Suitability Panel, Dr Muphy asked LNX 'Did you ever see [the applicant] naked?' and LNX responded:

[LNX]: No. He was in the shower. Probably still in the room.

[Dr Murphy]: So explain to me again? You've seen him the shower, have you? I missed that.

[LNX]: Well, I have, but I didn't - I didn't go in there. I didn't go in there. Only - yeah. When I wanna get something from the cupboard, he'd put his clothes on.

[Dr Murphy]: Okay. So he was naked to start but then he put his clothes on?

[LNX]: Yeah, because otherwise, I'd see that, so.

[Dr Murphy]: And did he say anything when you - so have I got this right? You went into the bathroom when he was in there having a shower?

[LNX]: Yeah.

[Dr Murphy]: And he was naked at the start?

[LNX]: Yeah.[294]

1. Firstly, LNX said 'no' to seeing the applicant naked in the shower. Then it is put to her, 'So you have seen him in the shower?' LNX states 'I didn't go in there ... When I wanna get something from the cupboard, he's put his clothes on.'
2. This exchange is then put to LNX that when she went into the bathroom she saw the applicant naked in the shower, to which she agrees.
3. These examples are given not to criticise the interviewers but to illustrate the incorrect way in which what LNX has actually said has been re-stated back to her, which she has then agreed with.
4. This lessens the weight I give to LNX's evidence.

1. The Mansell and Suitability Panel interviews, with the leading questions and the well-meaning comments of approval and support by the interviewers may have made LNX's narrative more vulnerable to suggestion. She has been reinforced in her narrative, and this has potentially reduced the accuracy of repeated information. This has weakened the probative value of her evidence.
2. She has received positive feedback when making disclosures and giving her evidence, particularly in her evidence to the Suitability Panel where she received positive feedback from Mr Gafforini, LNX's aunt and Dr Murphy. Just one of many examples is the questioner stating, 'You're doing a really good job, you're doing great.'[295] This observation is not to criticise the process of the Suitability Panel but to note external influences may have impacted on the reliability of LNX's evidence and subtly reinforced a narrative.
3. This raises reservations in my assessment of the evidence about whether LNX's disclosures have been influenced by both the initial questioning, and by subsequent interviews and positive feedback.

1. I accept LNX's disclosures have evolved.
2. LNX's aunt specifically asked LNX if she has had sex with the applicant and if he put his penis into her vagina. LNX responded to these questions with 'Yes'. The Berry Street case notes also indicate LNX's aunt told Ms Doyle, that LNX kept saying 'he shouldn't have done that' and LNX's aunt kept responding 'no he shouldn't'.
3. LNX reports having sex with the applicant to LNX's aunt and then a few days later at school to LNX's school wellbeing coordinator. In a case note authored by Ms Romanos on 13 March 2019 when she is in the car with LNX, Ms Romanos recorded LNX saying the following:

[The applicant] put, you know what men have (pointed to her genital area) he put it in there. [LNX's aunt] knows, I told her everything and I told the Police too. [LNX's aunt], she was crying because she is so scared I might get pregnant. Why did he do that to me Liz, why? I couldn't say stop, he just did it over and over. I was 14 years old when I first went to live there and it happened from the start / beginning ( can't remember which word she used ).[296]

1. LNX told Ms Kimpton they had sex in the bed and he 'put it in my vagina' and 'I think 2 times...'.[297] LNX stated to Ms Mansell they had sex in the bed and he put his penis in my vagina. In her interview with the Suitability Panel she did not mention having sex with the applicant, but gave evidence about him putting cream in her vagina.
2. In her interview with Ms Kimpton, LNX said her friend 'got touched by him too' and he slapped both of them with a wooden spoon.[298] In her interview with Ms Mansell LNX stated that the applicant 'full on slap[ped]' her friend, and then the applicant's wife 'got the wooden spoon and slapped my arse...'.[299]
3. LNX's her reports have differed. For example, and relevantly for the particulars in the allegation before the Tribunal, there is no reference to shaving or showering in LNX's police interview, her earliest formal interview by members of professionally trained interviewers on the Victoria Police SOCIT team.
4. The SSR has submitted inconsistencies in LNX's evidence ought be viewed in light of her being a child, her trauma history and intellectual disability and cited the majority in Ward who stated:

The likelihood of self-contradiction by a child, or misleading or inaccurate answers to certain types of questions, is now relatively well recognised. There is a range of innocent explanations for inconsistence of testimony.[300]

1. I note that case (in the context of inappropriate types of questions in court) also considers reports on best practice in questioning a vulnerable person or someone with communication needs. The types of questions to be avoided include questions requiring a yes/no response and questions in the form of statements.[301]

Ommission of serious allegations from particulars

1. The SSR submission is that LNX is to be accepted as telling the truth. This is inconsistent with omission from the particulars against the applicant of any reference to his having sex with LNX on multiple occasions, as she stated. LNX has made this particular allegation to LNX's aunt, LNX's school wellbeing coordinator, Ms Romanos, as well as to Ms Kimpton and Ms Mansell. Her disclosure to LNX's aunt evolved from one occasion to multiple occasions in her disclosure to Ms Romanos. It appears the particulars of the allegation were formulated by Ms Mansell. LNX had given evidence to Ms Kimpton that the applicant had sex with her in bed and that he put his penis in her vagina twice. LNX also told Ms Mansell 'he put his penis in my vagina' and made other allegations such as the applicant nearly stabbing her. The particulars alleged against the applicant have been selectively picked from LNX's evidence. For this reason, it is inconsistent for the SSR to submit LNX is truthful, given the circumspect approach taken to her most serious allegations.
2. The SSR also submitted LNX's version should be believed because she has demonstrated anger and fear towards the applicant and has no wish to return to the applicant's. Whilst this demeanour or behaviour is consistent with her narrative it is not of itself proof her narrative is correct.

1. Further, LNX's evidence is peppered with descriptions of events which appear fanciful. LNX's disclosures and evidence about the sexual abuse is often accompanied by seemingly outlandish propositions such as the applicant having sex with her 'over and over' since she was 14, or the applicant's wife finding them together and asking, 'Are you two in love?' The theme of the applicant's wife telling the applicant off after seeing him with LNX in bed or naked together is in LNX's evidence to Ms Kimpton and Ms Mansell but is not mentioned in her evidence to the Suitability Panel. She also recounts being hit with a wooden spoon by the applicant or the applicant's wife in the presence of her friend and the applicant having sex with her when her friend, who was staying the night was present, and whom the applicant also touched. The fact LNX refers to the friend, both to Ms Kimpton and Ms Mansell, as having been at the very least slapped by the applicant and the applicant's wife does not appear to have been followed up.
2. LNX also included some vivid details in her evidence such as the applicant shaving her legs too hard and lots of blood coming out.[302] LNX also gave evidence that after the applicant or the applicant's wife slapped her across the face she got a 'red mark'.[303] This is evidence that potentially could have been substantiated such as whether she required medical attention or the injuries were witnessed by another, but she was not asked to elaborate. She gave evidence of being beaten or slapped with a wooden spoon with her friend which could also potentially have been independently verified.
3. In Ms Romanos' case note of 30 January 2019 it is recorded that '[LNX] was talking about her friend at school ... and how she knows his thing goes hard, a mans penis.'[304] There was no concern expressed or investigation of that disclosure.

1. LNX's earliest report of sexual abuse to LNX's aunt was accompanied by factually incorrect details which could be independently verified. For example, when she made disclosures to LNX's aunt on 22 February 2019, she told her she had told her father about the abuse and her father had told Ms Doyle. The evidence confirms LNX did not tell her father, which was confirmed by LNX's father to Victoria Police when they spoke with him on 20 March 2019.[305] It appears it was Ms Sonia Cuni from Child Protection who first told LNX's father on 18 March 2019,[306] and LNX's father did not tell Ms Doyle as LNX alleges. At the same time, LNX also told LNX's aunt her father had told her to tell everyone that the applicant touches her everywhere.[307]
2. Further, LNX also said she had told Ms Romanos about the abuse. Ms Romanos denies having being, told about the abuse by LNX at that time and was only aware of what LNX said as documented in her case notes.

1. LNX has a history of making up allegations of being sexually touched, as evidenced from the school case notes. The evidence supports LNX sometimes fantasised about an imaginary relationship with a TV character Spike. She made comments to the other girls in the house about flushing her boyfriend's head in the toilet, kissing Spike and having sex with Spike. CMR gave evidence that when she challenged LNX that it was not true that she had flushed her boyfriend's head in the toilet upstairs, LNX responded 'I'm not lying.'[308] GNE gave evidence that it did not seem like LNX was joking when she told her these stories.[309] In her evidence to the Tribunal LNX denied ever stating that Spike was her boyfriend, remarking that she was joking.[310] These examples illustrate LNX may have had difficulty in differentiating between whether what she said actually happened or was true.
2. In her evidence before the Tribunal, LNX specifically denied ever leaving used sanitary pads on the floor, 'I never did that',[311] when GNE and the applicant and the applicant's wife confirmed this had occurred.[312] She also denied masturbating at home and then stated she probably did once in the lounge room.[313] She denied ever telling teachers at school that other kids had touched her, '...no. I didn't say that.'[314]
3. The previous incorrect assertions, her peculiar comments and denials in evidence impact on my assessment of LNX's credit and reliability and I give it less weight.

1. The applicant, the applicant's wife, LNX's aunt and the members of the applicant's household confirmed LNX talked to herself in her room. On 18 August 2019 the applicant and the applicant's wife raised with Ms Doyle their concerns about LNX talking to herself, answering to someone and appearing to hear voices. Ms Doyle's response was if it's not negatively affecting her day to day life, its not necessarily a bad thing.[315]
2. LNX's aunt's evidence to the Suitability Panel was that LNX had imaginary friends and unusual behaviour and talked to herself.[316] The applicant's wife stated, the applicant wanted to talk to Mr Gafforini about '...the voices, about her masturbating, about her obsession with boys and Spike...Because we had had no direction or assistance on how to manage some of these behaviours.'[317]
3. There is a file note (not in evidence in these proceedings, but summarised in an email from Ms Doyle to Ms Mansell dated 14 February 2020) that, on 7 November 2018, the applicant met Mr Gafforini and raised a number of issues such as whether his therapy may be re-traumatising LNX, that she creates fantasies about the relationships she has with boys, that she talks to photographs, she talks to a 'phantom' (talks to herself) and the applicant commented that she includes so much detail.[318]
4. The SSR submits VCAT should reject LNX suffers from hallucinations or delusions and distinguishes LNX talking to herself and making jokes about relationships that are not real.
5. The evidence and case notes indicate that LNX talking to herself and fantasising about relationships with boys was not a recent invention. Clearly LNX demonstrated some behavioural issues that the applicant and the applicant's wife were seeking assistance to try to understand and respond to. There is no medical evidence of LNX having hallucinations or delusions and no diagnosis.
6. The main evidence concerns LNX talking to herself and talking about imaginary relationships, for example with Spike. There is no expert evidence about the impact of LNX's behaviour such as talking to herself and imaginary relationships on her evidence. It is not clear what impact this florid aspect of her imagination has on her disclosures and credit.

The applicant and the applicant's wife's evidence

1. The applicant's wife has been interviewed for the Kimpton and Mansell investigations, and before the Suitability Panel and Tribunal. She was a credible witness who denied these events ever occurred in her presence. I accept her as a witness of truth.
2. The applicant has been questioned on five occasions, by police, Ms Kimpton, Ms Mansell, the Suitability Panel and the Tribunal. On each occasion he has participated fully, answering all questions. He has denied the particulars in the allegation as well as the full set of allegations made by LNX. He has given detailed evidence about the girls shaving arrangements and that there were razors and shaving cream available at their home. His evidence was he showed LNX how to use a razor by demonstrating the angle the razor on her arm. GNE has given evidence she assisted LNX. The applicant has given evidence about taking LNX to the doctor for epistasis and thrush and purchasing medication which he gave to her to use.
3. On all topics he gave plausible and reasonable evidence.
4. I have not given weight to the applicant's medical conditions which he states prevent him having an erection and reduces his sex drive and libido, as this evidence was contested by the SSR. Having said that, the applicant gave evidence on oath of his inability to have an erection and his reduced sexual desire. No expert evidence was called in respect of this.
5. I accept the applicant's evidence and his denials regarding the particulars of sexual abuse and both the applicant and the applicant's wife's denials to having pornography or a sex toy in the house.
6. The applicant called a number of witnesses. GNE and CMR both lived at the house at the same time as LNX and never saw any behaviour consistent with that alleged against the applicant. Other witnesses, including two family friends who gave evidence at the Tribunal, who were regular visitors to the applicant's house evidence confirmed a positive view of the household and the applicant and the applicant's wife's behaviour as foster carers towards LNX.
7. I accept their evidence as witnesses of truth.

1. In his evidence before the Suitability Panel the applicant made an admission to taking a 'live' photograph of LNX masturbating when she was fully clothed in the lounge room. He explained he was going to show Mr Gafforini the photos as proof of her behaviour seeking assistance in how to deal with it. Shortly afterwards, when LNX asked to look at his phone and saw the photos, they were deleted.
2. The evidence of the photos is relevant as it could rationally affect the probability of a fact in issue, namely whether the applicant sexually abused LNX.
3. The evidence from the applicant, the applicant's wife, the two family friends who regular visitors to the applicant's house, and the two other young people who resided in the house, GNE and CMR confirms that LNX would frequently masturbate in public areas of the house, such as on the couch in the lounge room. The applicant's wife stated in her evidence to the Suitability Panel, '...you'd tell people in Berry Street and they don't believe you... How do we deal with it?'[319]
4. Although foolhardy and ill advised, I accept the applicant's explanation as to why he took the photo. I do not find this evidence probative of the allegations of sexual abuse against LNX. I accept the weight of the evidence confirms this was conduct LNX engaged in fully clothed in public areas of the house, the lounge room, when other people were present, usually when watching television. The applicant's wife tried to modify her public behaviour by asking LNX to go to the privacy of her own bedroom. This evidence supports the applicant's explanation for taking the photo for the purpose stated, to show Mr Gafforini and seek advice about how to deal with the behaviour.[320] He had previously been in contact with Mr Gafforini seeking advice about LNX's behaviour. He did not get the opportunity as the photos were immediately deleted. I am not of the view they are evidence that go to prove the facts in issue in this case, namely evidence of sexual abuse as particularised.
5. Overall, I found the applicant to be a credible witness who, now aged 80, in language and outlook is clearly a man of his time. He employed no artifice in any of his interviews or evidence. This admission against his interest is an example of his candid and guileless co-operation with all levels of the investigation of the allegations against him.
6. There is strong evidence that LNX's sexual behaviour was uninhibited both inside and outside the house. All care givers and people involved in arranging LNX's care were aware of and concerned about it. This is reflected in the school wellbeing coordinator's case notes from school. Berry Street was also aware of the potential consequences of LNX's sexuality and quickly acted to remove Mr Miller as her case worker. Prior to being place into care with the applicant, LNX's care team identified and discussed 'LNX's sexualised behaviours at school towards boys or in her head...'.[321]
7. It appears limited support, information or strategies were provided to the applicant and the applicant's wife as to how best to manage the challenge of LNX's interest in boys and sex. The concerns others had were well documented, and, for example, the care team meeting notes refer to discussion of the school's 'Safety Plan', and that LNX was not to be on the oval and was to stay in designated areas.

1. I take into account the matters set out in section 105(2) of the CYF Act.
2. For the above reasons, taking into account the gravity of the allegations, I make a determination I am not satisfied the evidence is sufficiently cogent and reliable to be satisfied on the balance of probabilities Allegation 1 particulars (a), (b) (c) and (d), sexual abuse, are proved against the applicant.
3. In accordance with section 105(6) of the CYF Act I have determined the allegation is not proved and no finding of misconduct has been made against the applicant in respect of the allegation. Given this, there is no requirement to consider under section 106 whether or not the applicant poses an unacceptable risk of harm to children.

[1] By order of the Tribunal dated 22 August 2024 the person's identity whose allegations against the applicant form the basis of the decision subject to review in these proceedings' must not be published or otherwise disclosed. In this decision I refer to her as 'LNX'. Additional deidentifying details and pseudonyms have been applied to the names of other witnesses, people and locations as necessary.

[2] Specialist Disability Accommodation Report 2020 dated 12 May 2020, Tribunal book (TB) 1227.

[3] GNE was not legally on a foster placement but lived with the applicant with the permission of her mother. CMR was introduced to the applicant by GNE. Throughout the course of the evidence in these proceedings there was references to several other children who lived with the applicant's during this time but who were not called as witnesses in these proceedings.

[4] Case note, Elizabeth Romanos/Trucchi, Including You 30 January 2019, TB 1081.

[5] Case note, Elizabeth Romanos/Trucchi, Including You 20 February 2019, TB 1060.

[6] In her interview for the SureFact investigation Ms Toohey denied stating to Ms Doyle that 'the applicant shaved LNX's vagina', stating she said he helped shave her legs, Transcript of interview, Belinda Toohey 12 February 2020, TB 815. In her evidence at the Tribunal hearing she conceded she may have been mistaken about whether she told Ms Doyle the applicant shaved LNX's vagina.

[7] Email from Claire Doyle to Belinda Toohey 22 February 2019, TB 1030.

[8] Email from Claire Doyle to Belinda Toohey 22 February 2019, TB 1030.

[9] This is taken from LNX's aunt statement to Victoria Police 11 March 2019 (LNX's aunt police statement), TB 1023.

[10] LNX's aunt police statement [11], TB 1024.

[11] Refers to Visual and Audio Recording of Evidence, used as a formal statement of a child's evidence. The VARE was not in the materials in this proceeding.

[13] The Department of Health and Human Services has been replaced by the Department of Families, Fairness and Housing. In this decision I do not distinguish between them and refer to them both as 'the Department'.

[14] Police brief 24 March 2024, TB 1009.

[15] Berry Street, CIMS, Investigation Report October 2019, TB 606.

[16] Berry Street, CIMS, Investigation Report October 2019, TB 606 - 633.

[17] Authority to conduct independent investigation 30 December 2019, TB 601.

[18] Authority to conduct independent investigation 30 December 2019, TB 602.

[19] Investigation Report 7 July 2020, TB 517 - 518 (emphasis in original).

[20] Investigation Report 7 July 2020, TB 509, 585 - 586.

[21] Notice of Referral of the Secretary to the Suitability Panel 12 December 2020, TB 505 - 506.

[22] Notice of Hearing Issued by Suitability Panel 17 March 2021, TB 440 - 442.

[23] The Notice of referral to the Suitability Panel and the Allegations in the Notice of Hearing substituted the word 'bottom' for the word 'arse' which was the word used by [LNX] and put to [the applicant] by the investigator.

[24] Notice of Hearing Issued by Suitability Panel 17 March 2021, TB 440 - 441 (emphasis in original).

[25] Determination of the Suitability Panel 30 November 2022, TB 443 - 445.

[26] Reasons for Determination of the Suitability Panel 30 November 2022 [289], TB 490.

[27] Reasons for Determination of the Suitability Panel 30 November 2022 [291], TB 490.

[28] Determination of the Suitability Panel 30 November 2022 [293] - [295], TB 490 - 491.

[29] Determination of the Suitability Panel 30 November 2022 [298], TB 491.

[30] Reasons for Determination of the Suitability Panel 30 November 2022 [296] - [297], TB 491.

[31] Reasons for Determination of the Suitability Panel 30 November 2022 [298], TB 491.

[32] Reasons for Determination of the Suitability Panel [301] - [307], TB 493 - 494 (emphasis in original).

[33] Reasons for Determination of the Suitability Panel [309], TB 494 - 495.

[34] Determination of the Suitability Panel 30 November 2022, TB 443 - 445.

[35] The applicant's application to VCAT for review dated 29 December 2022.

[36] On 1 July 2024, the Regulator commenced as the new independent statutory body responsible for regulating social services in Victoria under the Social Services Regulation Act 2021 (Vic). As part of its functions, the Regulator is to regulate workers and carers in foster care, out of home care and secure welfare services and maintain a list of excluded workers and carers. Prior to this amendment, the regulatory framework for foster carers and out of home carers was administered by the Secretary of the Department of Families, Fairness and Housing under Part 3.4 of the Children, Youth and Families Act 2005 (Vic). This section was repealed by the Social Services Regulation Act 2021 (Vic), however, per the Act's transitional provisions the Secretary's powers and responsibilities under Part 3.4 were transferred to the Regulator for the purposes of completing pending investigations and facilitating continued operation of the Suitability Panel during the transition period, being a period of 3 years beginning the day of commencement.

[37] Submissions on behalf of the Secretary to the Department January 2024 [11], TB 12.

[38] (Review and Regulation) [2019] VCAT 770 (MEV).

[40] (Review and Regulation) [2022] VCAT 274 (MES).

[42] Transport Accident Commission v Bausch [1998] 4 VR 249, 263 (Bausch).

[43] [2017] VSC 123 (Dawson).

[45] (1992) FCR 225 (Hospital Benefit Fund).

[46] Dawson [28], citing Hospital Benefit Fund, 234.

[47] [2008] HCA 31; (2008) 235 CLR 286 (Shi).

[50] [2022] VSC 486 (Draper).

[51] [2019] HCA 16; (2019) 266 CLR 250 (_Frugtnie_t)

[53] BFK v VOCAT [2017] VSC 736.

[58] (2015) 48 VAR 715 (Hoskin).

[59] Hoskin [113(a)], 748 -749 (emphasis in original, citations omitted)

[60] [1938] HCA 34; [1938] 60 CLR 336, 361 - 363.

[61] Closing Submissions on behalf of the Social Services Regulator dated November 2024 (SSR's closing submissions) [1].

[62] SSR's closing submissions [8], [11].

[63] SSR's closing submissions [8] - [9].

[64] (2017) 54 VR 86 (Ward).

[79] Applicant's Closing Submissions (undated) filed with the Tribunal on 13 December 2024 (Applicant's closing submissions) [3].

[80] Applicant's closing submissions [4].

[81] Applicant's closing submissions [4].

[82] Applicant's closing submissions [5].

[83] Applicant's closing submissions [7].

[84] Applicant's closing submissions [9].

[85] Applicant's closing submissions [10].

[86] Applicant's closing submissions [12].

[87] Applicant's closing submissions [19].

[88] Applicant's closing submissions [21].

[89] Applicant's closing submissions [22].

[90] Applicant's closing submissions [23].

[91] Applicant's closing submissions [24].

[92] Applicant's closing submissions [27].

[93] Applicant's closing submissions [30].

[94] Applicant's closing submissions [46] - [49].

[95] Applicant's closing submissions [50].

[96] Applicant's closing submissions [57].

[97] Applicant's closing submissions [57].

[98] Applicant's closing submissions [66] - [67].

[99] Applicant's closing submissions [73] - [74]

[100] Applicant's closing submissions [76].

[101] Applicant's closing submissions [77] - [102].

[102] Applicant's closing submissions [96] - [100].

[103] Applicant's closing submissions [104] - [106].

[104] Applicant's closing submissions [106] - [107].

[105] Applicant's closing submissions, [111] - [117].

[106] Action Towing Pty Ltd v VicRoads [2015] VCAT 249, [22].

[107] The applicant's evidence at the Tribunal was '...I understood afterwards that it was whatever they call Live Photos. Like I just pressed the thing. I - I'm not an expert especially IPhones but ... I took it and there were two ... I considered it one but it was two.', T 659:29 - 660:4.

[108] SSR's closing submissions - Annexure 1, [2].

[109] (2016) 241 FCR 212 [14] (Waensila).

[110] 162 CLR 24 [45] (Peko-Wallsend).

[111] SSR's closing submissions [36].

[112] SSR's closing submissions [38] - [39].

[113] SSR's closing submissions [36].

[114] Applicant's closing submissions - Annexure 1 [2].

[115] Applicant's closing submissions - Annexure 1 [10].

[116] Applicant's closing submission - Annexure 1 [11].

[117] The word bottom is substituted for the word 'arse' which was the word used by the child and put to [the applicant] by the investigator.

[118] Reasons for Determination of the Suitability [258], TB 484.

[119] Report of Ms Bea Raymond (VisPcyhPlus) 10 August 2023 and accompanying materials, TB 1152 - 1213.

[120] Assessments of [LNX], TB 1214 - 1219.

[121] The allegations referred for consideration for the Berry Street investigation and the SureFact investigation differed. For the Berry Street investigation, two allegations were referred being: 1: [LNX] [b]eing shown pornography and having her legs and vagina shaved by [the applicant] and 2: Being touched on her breasts and vagina and vaginal penetration by [the applicant]. The incident dates for these are listed as 22 February 2019 and 13 March 2019, see Berry Street, CIMS, Investigation report October 2019, TB 606. The allegation referred to SureFact for investigation was:' It is alleged that between 19 October 2017 and 22 February 2019, [LNX] was sexually abused by [the applicant] whilst placed in his care', see Investigation report 7 July 2020 TB 511- 513.

[122] This is part of the factual basis of particular 1(c).

[123] This is part of the factual basis of particular 1(a).

[124] Case Note, Elizabeth Romanos/Trucchi, IY 30 January [2019], TB 1081.

[125] Case Note, Elizabeth Romanos/Trucchi, IY 30 January [2019], TB 1082.

[126] Case Note, Elizabeth Romanos/Trucchi, IY 20 February 2019, TB 1060 - 1061.

[127] LNX's aunt's police statement [4] - [11], TB 1022 - 1024.

[128] Incident report 22 February 2019 (sic), TB 1102. This document appears to have been incorrectly labelled and dated in the index to the TB, and I will refer to it as the 'Berry Street report to the Department 25 February 2019'.

[129] The record states Tiffany McCann (DHHS) made this contact, however Dr Vague corrected this in her SureFact interview that it was in fact herself. The reference to DHHS is also incorrect and this should be Berry Street, see Transcript of Interview, Tiffany Vague 5 February 2020, TB 967.

[130] Berry Street report to the Department 25 February 2019, TB 1102.

[131] Transcript of Interview, Tiffany Vague dated 5 February 2020, TB 970 - 971.

[132] Notes by [LNX's school wellbeing coordinator] 26 February 2019, TB 1026 - 1027.

[133] Police brief 24 March 2021, TB 1013.

[134] Case note, Elizabeth Romanos/Trucchi, IY dated 13 March 2019, TB 1083 - 1084.

[135] Berry Street, CIMS, Investigation Report dated October 2019, TB 610-11.

[136] Transcript of interview, [LNX] dated 19 March 2020, TB 638 - 645.

[137] Transcript of Suitability Panel interview with [LNX] 24 November 2021, TB 394.

[138] Transcript of Suitability Panel interview with [LNX] 24 November 2021, TB 394.

[139] Transcript of Suitability Panel interview with [LNX] 24 November 2021, TB 394 - 399.

[140] Transcript of Suitability Panel interview with [LNX] 24 November 2021, TB 399.

[141] Transcript of Suitability Panel interview with [LNX] 24 November 2021, TB 400.

[142] Transcript of Suitability Panel interview with [LNX] 24 November 2021, TB 402.

[143] Transcript of Suitability Panel interview with [LNX] 24 November 2021, TB 420 - 425.

[144] Transcript of Suitability Panel interview with [LNX] 24 November 2021, TB 427 - 428.

[148] Berry Street, CIMS, Investigation Report October 2019, TB 613.

[149] Transcript of [Suitability Panel] Hearing - Day 4 20 January 2022, TB 158.

[150] Transcript of [Suitability Panel] Hearing - Day 4 20 January 2022, TB 160.

[151] Transcript of [Suitability Panel] Hearing - Day 4 20 January 2022, TB 166.

[152] Berry Street, CIMS, Investigation Report October 2019, TB 616-617.

[153] Berry Street, CIMS, Investigation Report October 2019, TB 615.

[156] LNX's aunt's police statement [6], TB 1023.

[157] Berry Street report to the Department dated 25 February 2019, TB 1102.

[158] Notes by [LNX's school wellbeing coordinator] dated 26 February 2019, TB 1027.

[159] Berry Street, CIMS, Investigation Report October 2019, TB 617.

[160] Berry Street, CIMS, Investigation Report October 2019, TB 611.

[161] Transcript of interview, [LNX] 19 March 2020 TB 640 - 644.

[162] LNX's aunt police statement [9], TB 1023.

[163] Case note, Elizabeth Romanos/Trucchi, IY 13 March 2019, TB 1084.

[164] Notes by [LNX's school wellbeing coordinator] 26 February 2019, TB 1026.

[165] Police brief 24 March 2021, TB 1013.

[166] Berry Street, CIMS, Investigation Report October 2019, TB 610.

[167] Transcript of interview, [LNX] 19 March 2020, TB 642.

[168] Case note, Elizabeth Romanos/Trucchi, IY 30 January [2019], TB 1081.

[169] Case note, Elizabeth Romanos/Trucchi, IY 30 January [2019], TB 1082.

[170] LNX's aunt police statement [9], TB 1023.

[171] Berry Street, CIMS, Investigation Report October 2019, TB 611.

[172] Transcript of interview, [LNX] 19 March 2020, TB 647 - 649.

[173] Transcript of Suitability Panel interview with [LNX] 24 November 2021, TB 403-406.

[174] Transcript of interview, Damian Gafforini 24 February 2020, TB 900.

[175] Transcript of [Suitability Panel] hearing - Day 1 27 April 2021, TB 55.

[177] Transcript of interview, Damian Gafforini 24 February 2020, TB 901.

[178] Transcript of interview, Damian Gafforini 24 February 2020, TB 902.

[179] Transcript of [Suitability Panel] hearing - Day 1 27 April 2021, TB 54.

[180] At the Tribunal hearing Mr Gafforini gave evidence he next saw LNX at the 'end of February, early March ... she was no longer living with [the applicant].' T 584:21 - 584:23.

[181] Transcript of interview, Elizabeth [Romanos] 12 February 2020, TB 847.

[182] Case note, Elizabeth Romanos/Trucchi, IY 13 March 2019, TB 1083.

[183] Transcript of interview, Belinda Toohey 12 February 2020, TB 815 - 816.

[184] Transcript of [Suitability Panel] Hearing - Day 3 28 April 2021, TB 352.

[185] Berry Street, CIMS, Investigation Report October 2019, TB 612.

[186] Transcript of interview, [the applicant] 4 June 2020, TB 698.

[187] Transcript of [Suitability Panel] Hearing - Day 4 20 January 2022, TB 191 - 192.

[190] Berry Street, CIMS, Investigation Report October 2019, TB 615.

[193] Berry Street, CIMS, Investigation Report October 2019, TB 611 - 612.

[194] Transcript of interview [LNX] 19 March 2020, TB 648.

[195] Transcript of interview, [LNX] 19 March 2020, TB 654.

[196] LNX's aunt police statement [2], TB 1022.

[197] Berry Street, CIMS, Investigation Report October 2019, TB 624.

[198] Berry Street, CIMS, Investigation Report October 2019, TB 625.

[199] Berry Street, CIMS, Investigation Report October 2019, TB 625.

[200] Berry Street, CIMS, Investigation Report October 2019, TB 614.

[201] Berry Street, CIMS, Investigation Report October 2019, TB 618.

[202] SSR's closing submissions [9].

[203] Fox v Percy (2003) 214 CLR 118, 128 - 129 [30].

[204] Berry Street, CIMS, Investigation Report October 2019, TB 623.

[205] Transcript of [Suitability Panel] Hearing Day 1 - 27 April 2021, TB 89.

[206] T 201:13 - 201:20; Summonsed School Records of [LNX], Supplementary Tribunal book (STB) 80.

[207] T 202:24 - 203:13; Summonsed School Records of [LNX], STB 82.

[208] Summonsed School Records of [LNX], STB 82-83.

[210] Summonsed School Records of [LNX], STB 77.

[211] Summonsed School Records of [LNX], STB 88.

[212] Summonsed School Records of [LNX], STB 74.

[213] T 208:9 - 208:19; Summonsed School Records of [LNX], STB 67.

[214] Summonsed School Records of [LNX], STB 27.

[216] Berry Street, CIMS, Investigation Report October 2019, TB 614.

[217] Berry Street, CIMS, Investigation Report October 2019, TB 615.

[219] Transcript of interview, Tiffany Vague 5 February 2020, TB 961-962.

[220] Transcript of [Suitability Panel] Hearing - Day 1 27 April 2021, TB 33.

[222] Berry Street, CIMS, Investigation Report October 2019, TB 620.

[223] Transcript of interview, [the applicant] 4 June 2020, TB 667.

[224] Transcript of interview, [the applicant] 4 June 2020, TB 670

[229] Berry Street, CIMS, Investigation Report October 2019, TB 615.

[230] T 771:5 - 772:7; T 831:12 - 832:17.

[231] Berry Street, CIMS, Investigation Report October 2019, TB 624.

[232] T 176:22 - 177:10; Summonsed School Records of [LNX], STB 80-81.

[233] Berry Street, CIMS, Investigation Report October 2019, TB 624.

[234] Berry Street, CIMS, Investigation Report October 2019, TB 621.

[235] Transcript of interview, [LNX] 19 March 2020, TB 658 - 659.

[236] Berry Street, CIMS, Investigation Report October 2019, TB 628.

[237] Berry Street, CIMS, Investigation Report October 2019, TB 618.

[238] Berry Street, CIMS, Investigation Report October 2019, TB 621.

[239] Berry Street, CIMS, Investigation Report October 2019, TB 621.

[240] Transcript of interview, Belinda Toohey 12 February 2020, TB 809 - 812.

[241] Transcript of [Suitability Panel] Hearing - Day 2, 28 April 2021, TB 346-347.

[242] Transcript of interview, Belinda Toohey 12 February 2020, TB 813.

[243] Berry Street, CIMS, Investigation Report October 2019, TB 621; T 483:17 - 484:1.

[244] Transcript of interview, Belinda Toohey 12 February 2020, TB 822-823.

[245] Transcript of interview, Belinda Toohey 12 February 2020, TB 823.

[246] Berry Street, CIMS, Investigation Report October 2019, TB 619.

[248] Berry Street, CIMS, Investigation Report October 2019, TB 615.

[249] Berry Street, CIMS, Investigation Report October 2019, TB 622.

[250] Berry Street, CIMS, Investigation Report October 2019, TB 622.

[251] Transcript of interview, Belinda Toohey, 12 February 2020, TB 814. In her evidence at the Tribunal hearing, Ms Toohey appeared to maintain that it was the applicant who raised the concerns about promiscuity, despite what was recorded in the care team meeting note, T 525:29 - 526:22.

[252] Care team meeting notes [10 October 2018], TB 1042

[253] Transcript of [Suitability Panel] hearing - Day 3 29 April 2021, TB 206.

[254] Berry Street, CIMS, Investigation Report October 2019, TB 618.

[255] Berry Street, CIMS, Investigation Report October 2019, TB 619.

[256] Berry Street, CIMS, Investigation Report October 2019, TB 624.

[257] SSR's closing submissions [25].

[258] SSR's closing submissions [7].

[259] SSR's closing submissions [1(d)]

[265] Transcript of interview, Elizabeth [Romanos] 12 December 2020, TB 841; T 317:30 - 318:19.

[266] Transcript of interview, Elizabeth [Romanos] 12 December 2020, TB 843.

[267] T 320:22 - 321:17; Transcript of interview, Elizabeth [Romanos] 12 December 2020, TB 843.

[268] Case note, Elizabeth Romanos/Trucchi, IY 20 February 2019, TB 1061.

[272] Care team meeting notes 10 September 2018, TB 1126.

[273] Transcript [Suitability Panel] Hearing - Day 2 28 April 2021, TB 377.

[274] Transcript [Suitability Panel] Hearing - Day 2 28 April 2021, TB 328; Transcript of interview, Elizabeth [Romanos] 12 February 2021, TB 847.

[275] T 634:29 - 634:7; T 721:6 - 721:9.

[279] Transcript of Interview, Tiffany Vague 5 February 2020, TB 964.

[280] Transcript of [Suitability Panel] Hearing - Day 1 27 April 2021, TB 130; T 285:20 - 286:4.

[281] LNX's aunt police statement [4], TB 1022.

[284] Berry Street, CIMS, Investigation Report October 2019, TB 578.

[285] Berry Street, CIMS, Investigation Report October 2019, TB 617.

[286] Investigation Report dated 7 July 2020, TB 588.

[287] Police brief 24 March 2021, TB 1013-1014.

[288] Police brief 24 March 2021, TB 1015.

[289] Transcript of interview, [LNX] 19 March 2020, TB 645.

[290] Transcript of interview, [LNX] 19 March 2020, TB 647.

[291] Transcript of interview, [LNX] 19 March 2020, TB 658.

[292] Transcript of Suitability Panel interview with [LNX] 24 November 2021, TB 394 - 397.

[293] Notes by [LNX's school wellbeing coordinator] 26 February 2019, TB 1026 - 1027.

[294] Transcript of Suitability Panel interview with [LNX] 24 November 2021, TB 427 - 428.

[295] Transcript of Suitability Panel interview with [LNX] 24 November 2021, TB 401.

[296] Case note, Elizeabeth Romanos/Trucchi, IY 13 March 2019, TB 1084.

[297] Berry Street, CIMS, Investigation Report October 2019, TB 611.

[298] Transcript of interview, [LNX] 19 March 2020, TB 610.

[299] Transcript of interview, [LNX] 19 March 2020, TB 646. In evidence in chief at the Tribunal the applicant's wife denied this occurred, T 658:3. The applicant's wife was not cross-examined on this.

[302] Transcript of interview [LNX] 19 March 2020, TB 641.

[303] Berry Street, CIMS, Investigation Report October 2019, TB 610; Transcript of interview, [LNX] 19 March 2020, TB 645.

[304] Case note, Elizabeth Romanos/Trucchi, IY 30 January 2019, TB 1081.

[305] Police brief 24 March 2021 [11], TB 1015.

[306] Summonsed School Records of [LNX], STB 52.

[307] LNX's aunt police statement [10], TB 1024.

[315] Transcript of interview, Claire Doyle 13 February 2020, TB 880 - 881.

[316] Transcript of [Suitability Panel] Hearing - Day 3 28 April 2021, TB 208.

[318] [Email] from Claire Doyle 14 February 2020, TB 1047.

[319] Transcript of [Suitability Panel] Hearing - Day 2, 28 April 2021, TB 188.

[321] Summonsed School Records of [LNX], STB 88.