1. Under section 196(2)(a) of the Health Practitioner Regulation National Law (Vic) (National Law), Mr Ewing is reprimanded.
2. Under section 196(2)(e) of the National Law, Mr Ewing's registration is cancelled.
3. Under section 196(4)(a) of the National Law, Mr Ewing is disqualified from obtaining registration as a registered health practitioner for eight years.
4. Under section 196(4) of the National Law, Mr Ewing is prohibited from providing any health services (including counselling services) unless and until re-registered under the National Law.
5. By 4.00pm on 20 April 2026, Mr Ewing must send to the Board and the Tribunal any submission he wishes to make with respect to the Board's application for the costs of the proceeding.
6. By 4.00pm on 4 May 2026, the Board may send any submission it wishes to make in reply to the submissions of Mr Ewing regarding the application for costs.
7. The proceeding is listed for an administrative mention on 18 May 2026, by which time the parties must advise the Tribunal in writing whether they seek an oral hearing for the costs application or whether they seek for this aspect of the referral to be determined on the papers. If an oral hearing is sought, the parties must (preferably jointly) advise the Tribunal as to:

(a) The likely duration of the hearing;

(b) All available dates for the 4-month period starting August 2026, when all necessary participants will be available to attend the hearing;

(c) Any other matters that may impact on the hearing process, such as the need for an interpreter or another form of assistance; and

(d) Whether the parties would prefer the hearing to be held via Zoom or in person at 308 La Trobe Street Melbourne.

1. This decision is about the professional conduct of Jason Ewing (Mr Ewing), a registered psychologist who was working as a school counsellor at two primary schools between July 2014 and August 2017. Mr Ewing has held registration as a psychologist since February 2004.
2. The Psychology Board of Australia (Board) has made five allegations of professional misconduct against Mr Ewing.
3. For the reasons that follow, we have decided:
   1. Allegation 1, that on or about 2 December 2018, Mr Ewing knowingly possessed child abuse material (CAM), is not proven.
   2. Allegation 2, that on or about 13 April 2020, Mr Ewing failed to provide written notice to the Board of a relevant event within seven days after becoming aware that a relevant event had occurred, in breach of section 130(1) of the Health Practitioner Regulation National Law (Vic) (National Law), is proven, save for with respect to Ethical Standard B.1.4 of the Australian Psychological Society Code of Ethics, 2007.
   3. Allegation 3, that on or about 5 November 2020, Mr Ewing recklessly made a false or misleading declaration to the Board and the Australian Health Practitioner Regulation Agency (Ahpra) when he completed and submitted the application to renew his registration with the Board as a psychologist, is proven.
   4. Allegation 4, that between in and around July 2014 and in and around December 2017, Mr Ewing engaged in inappropriate and sexualised behaviour towards a female child (Student 1) aged around seven to nine years old, while working as a school counsellor, is proven, save for with respect to Particulars 4.7(a), (b),(c),(d) and Particular 4.8.
   5. Allegation 5 that, between in and around January 2014 and in and around December 2017, Mr Ewing engaged in inappropriate and sexualised behaviour towards a female child (Student 2) aged around five to eight years old, while working as a school counsellor, is proven, save for with respect to Particulars 5.7(a), (d) and (h).
4. Having reached these conclusions, we have found that the conduct the subject of:
   1. Allegations 2 and 3 each constitute professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct contained in section 5 of the National Law; and
   2. Allegations 4 and 5 each constitute professional misconduct within the meaning of paragraph (c) of the definition of professional misconduct contained in section 5 of the National Law.
5. Finally, we have made the following determinations under section 196 of the National Law, with respect to Mr Ewing's registration:
   1. Under section 196(2)(a) of the National Law, Mr Ewing is reprimanded.
   2. Under section 196(2)(e) of the National Law, Mr Ewing's registration is cancelled.
   3. Under section 196(4)(a) of the National Law, Mr Ewing is disqualified from obtaining registration as a registered health practitioner for eight years.
   4. Under section 196(4) of the National Law, Mr Ewing is prohibited from providing any health services (including counselling services) unless and until re-registered under the National Law.

1. The background to the Board's investigation is atypical. In order to give context to the evidence relied on by the Board, we summarise the investigation here.
2. An allegation that Mr Ewing cupped Student 1's buttocks was first raised with Victoria Police in 2017.
3. In this context, in November 2017, Mr Ewing self-reported to the Board, when seeking re-registration, that he had been interviewed by police about allegations made by Student 1. The Board then commenced an own-motion investigation under the National Law.
4. Victoria Police concluded its investigation in late 2017 and decided to take no further action.
5. During 2018, Mr Ewing's employer engaged an external investigator to investigate Student 1's allegations (the workplace investigation). The workplace investigator found, in October 2018, that Mr Ewing had breached professional boundaries but not that Mr Ewing groomed Student 1 for sexual purposes. Mr Ewing's employment was subsequently terminated.
6. Also in October 2018, the Board decided to take no further action in relation to Mr Ewing's self-notification.
7. In December 2018, Victoria Police executed a search warrant at Mr Ewing's premises and seized a number of devices. He was charged with the offence of knowingly possessing CAM, contrary to section 51G of the Crimes Act 1958 (Vic) in April 2020.
8. Mr Ewing did not notify the Board of this charge.
9. In August 2021, Mr Ewing's former employer notified the Board that Student 2 had made an allegation of inappropriate conduct concerning Mr Ewing. This was due to Student 2 making a disclosure about Mr Ewing to her high school counsellor.
10. On 3 September 2021, the Board decided to investigate this further notification. In the course of seeking information from Victoria Police, the Board became aware that Mr Ewing had been charged with knowingly possessing CAM a year earlier. The Board considered that Mr Ewing that Mr Ewing had not complied with his obligation to notify the Board of a relevant event (i.e. a criminal charge), and that he had made a false declaration about his criminal history when seeking re-registration.
11. Also at this time, Mr Ewing's former employer again engaged an external investigator, this time to investigate allegations made by Student 2 as reportable conduct under the Reportable Conduct Scheme (the reportable conduct investigation). The investigation report was finalised in October 2021. Mr Ewing was afforded an opportunity to, but did not participate in, this investigation.
12. On 13 October 2021, the Board decided to take immediate action under sections 156(1)(a) and (e) of the National Law by suspending Mr Ewing's registration as a psychologist. Mr Ewing did not make any submissions to the Board regarding the proposed immediate action.
13. The charge of knowingly possessing CAM was withdrawn by police on 14 December 2021. Mr Ewing subsequently applied to the Board to have the suspension of his registration revoked. The Board declined to do so.
14. On 21 March 2022, the Board decided to repeal its decision of October 2018 to take no further action in relation to the allegation concerning Student 1. The Board remade the decision to investigate this matter. In its reasons, the Board said it was doing so to ensure that there were no serious issues or concerns in relation to Mr Ewing's conduct which were not appropriately addressed by the Board.
15. On 14 November 2022, having formed the reasonable belief that Mr Ewing had behaved in a way that constitutes professional misconduct, the Board decided to refer the matter to the Tribunal, pursuant to section 193 of the National Law. This decision related to the conduct which became the subject of Allegations 1 to 3, being the alleged possession of CAM and the related false declaration to, and failure to notify, the Board.
16. Ahpra investigators subsequently interviewed Student 1 and Student 2. This took place on 15 and 16 January 2024, respectively.
17. Ahpra investigators then compelled Mr Ewing to attend an interview about the allegations made by Student 1 and Student 2, which took place on 15 March 2024 (Ahpra Interview). On 10 May 2024, Mr Ewing provided a final written response to this aspect of the investigation.
18. On 24 July 2024, the Board decided to refer a further matter to VCAT under section 193(1)(a) of the National Law as it reasonably believed that Mr Ewing had behaved in a way that constitutes professional misconduct. This decision related to the allegations concerning Student 1 and Student 2.
19. The Board filed an amended notice of allegations in this proceeding, to add Allegations 4 and 5 concerning Mr Ewing's alleged conduct involving Student 1 and Student 2.

THE PROCEEDING AND MR EWING'S NON-PARTICIPATION

1. The Further Amended Notice of Allegations which we are invited to consider is dated 22 October 2024. It contains the five allegations with particulars.
2. Mr Ewing was initially represented in the Tribunal proceeding but, after the initial directions hearing, he did not participate further in the referral.
3. A compulsory conference was listed in February 2024, but it did not proceed as Mr Ewing did not attend.
4. Orders were made by the Tribunal providing Mr Ewing with opportunity to participate. These included an order which put Mr Ewing on notice of the final hearing. The Tribunal also emailed a notice of hearing to Mr Ewing containing the time, date and place of the hearing and the mechanism for him to attend. However, Mr Ewing did not attend the hearing on 4 March 2026.
5. In response to orders of the Tribunal, the Board's instructing solicitors filed an affidavit of service confirming that Mr Ewing was personally served with all orders in the proceeding, the Supplementary and Key Documents Tribunal Books and the Board's written submissions. A previous affidavit confirmed that Mr Ewing had been served with the complete Tribunal Book.
6. Section 99(2) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) provides that where notice of the hearing has been given to a person in accordance with the rules, 'the hearing may be held in the absence of that person'.
7. Having regard to all the steps taken to bring the proceedings and the material to Mr Ewing's attention, the Tribunal was satisfied that it was appropriate to proceed to hear and determine the matter in his absence.
8. In Mr Ewing's absence, and without him present to agree with or dispute the evidence and the Board's submissions, the Tribunal has carefully scrutinised the evidence presented and applied the relevant standard of proof.

1. The onus of proof rests with the Board, who brings the allegations. Further, the Tribunal must reach a comfortable level of satisfaction in finding the allegations proven on the balance of probabilities, consistent with the seriousness of the allegations and reflecting the serious consequences of any finding.[1]
2. In conducting the hearing, section 97 of the VCAT Act states that the Tribunal must act fairly and according to the substantial merits of the case in all proceedings, and section 98(1)(b) provides that the Tribunal is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures.
3. The ability of the Tribunal to dispense with the rules of evidence does not justify making orders without a basis in evidence, having rational probative force.[2]
4. The Board filed a Tribunal Book of over 1600 pages, to prove the conduct alleged. At the Tribunal's request, a Key Documents Tribunal Book containing the material referenced in the Board's submissions or to which the Tribunal would be taken at the hearing was also filed. Though the Key Documents Tribunal Book was of significant assistance at the hearing, as will be apparent from these reasons, we have considered all of the material in the original Tribunal Book in reaching our decision.
5. The Board filed written submissions, and its counsel also addressed the Tribunal orally. The Board did not call any witnesses at the hearing. At the conclusion of the hearing, the Tribunal made orders for the Board to provide further submissions regarding an aspect of Allegation 2 and the law relating to prohibition periods. The further submission was provided by the Board on 6 March 2026, also confirming that the Board seeks the costs of the proceeding. Mr Ewing was copied to this submission.

1. We have set out our decision in three parts:
   1. Our findings of fact concerning each allegation;
   2. Our findings as to characterisation of proven conduct as professional misconduct under the National Law; and
   3. Our decision as to determinations to be imposed on Mr Ewing's registration, under section 196 of the National Law.

1. The evidence in support of Allegation 1 is based on a brief of evidence prepared by Victoria Police.
2. The statement of the police informant,[3] a Leading Senior Detective, says that:
   1. On 3 July 2018, she received information in a police intelligence report which indicated that an IP address belonging to Mr Ewing was 'linked to' peer-to-peer file sharing networks which had been identified as accessing, sharing and/or the distribution of CAM.
   2. On 2 December 2018, police attended Mr Ewing's home address with a search warrant issued by the Magistrates' Court. Shortly after arriving, Mr Ewing said to the officer, 'There is no child abuse material here, nothing here'.
3. A statement from a Detective Sergeant[4] records that:
   1. 14 items were seized from Mr Ewing's home. These comprised of 12 portable hard drives, a desktop computer and a USB stick.
   2. On 16 November 2019, the items were analysed at the office of the local Sexual Offences and Child Abuse Investigation Team, using a program called 'Netclean'.
   3. The Netclean program identified three images found on a hard drive and classified them according to the 'CETS anvil scale'.[5]
   4. All three images were identified and categorised as Category 1 Child Abuse Material.
   5. On 15 February 2020, he generated a Word Netclean report.
   6. On 28 February 2020, he generated an Excel Netclean report.
   7. The Netclean report says that:
      1. The three images on the hard drive were in Category 1, described as 'No Sexual Activity';
      2. No other images or videos in any other categories were located on the device; and
      3. The path to the images says they were in a Microsoft Office folder called 'backup master 2014'.[6]
4. On 21 February 2019, Mr Ewing was interviewed by police. The transcript of Mr Ewing's interview indicates that he responded 'no comment on legal advice' to all questions regarding the images located on his device. [7]
5. The charge sheet for knowingly possessing CAM was signed on 6 April 2020.
6. The prosecution brief contained a covering statement made by the police informant which described the images as follows:

The three images are of young female persons under 18 years. Two of the images are of young pre-pubescent females who are naked and posing in a sexually explicit manner with their genital area exposed. One image is [sic] young pre-pubescent female who is naked. Her genital area is not clearly showing.[8]

1. Mr Ewing's lawyers wrote to Victoria Police in April 2021, stating that Mr Ewing was pleading not guilty to the charge. The correspondence said that Mr Ewing did not dispute that the images were recovered from the hard drive, but that he 'never intended to possess the images'.[9]
2. On 18 August 2021, the police informant sought authorisation to withdraw the charge of possessing CAM. The brief to her Detective Senior Sergeant stated:

We may be able to prove by expert evidence by an e-Crime operative that he did download the images, my concern is proving if that [sic] he did that knowingly. The low number of images located (3), could infer that he did not regularly or deliberately access CAM.[10]

1. The charge was not withdrawn and the prosecution continued. The police informant subsequently made a request to e-Crime, a forensic analysis unit within Victoria Police, for analysis of the hard drive in question.
2. On 29 October 2021, an email was sent to the police informant by a member of the 'Cyber Squad'. It stated:

I have examined the report that you have forwarded and unfortunately it does not have any information as to the origins of the 3 files, or that the defendant had knowledge. The files appear to be in a backup of some Microsoft Office files.

To determine where and how they got there, an examination of any associated devices would be necessary, if they are available.

There is no guarantee that knowledge could be demonstrated in this case.

Based on our current workload, it may take 3 to 6 months to make a start on a Targeted Analysis.[11]

1. On 21 November 2021, the police informant wrote to her Senior Sergeants to again seek authorisation for the charge to be withdrawn. The brief stated:

On 16-NOV-2021, I received a phone call from [redacted], Acting Manager Digital Forensic Team [Police Officer Number] who stated that an Analysis would not be able to be done any further for the matter. [Redacted] ...

[Officer] wanted to reiterate that an analysis could only be done if an associated device was available to be analysed, if there was no device available, then no further Forensic Analysis could be done to assist the prosecution in being able to prove the charge of possession of the CAM.

The device in the possession of the investigators that contains CAM is [redated] that was seized under a 465 Warrant. All the other items that were seized on the day of the Warrant did not contain any CAM images, were returned to the accused as directed in the Warrant by the issuing Magistrate. Therefore, there are no devices available to assist Ecrime with further analysis as stated by them.[12]

1. The charge was formally withdrawn by the prosecution at the Magistrates' Court on 14 December 2021.

1. The Board alleges that Mr Ewing knowingly possessed CAM. Allegation 1 is in the same terms as the charge laid by police. The Board alleges that Mr Ewing knowingly possessed CAM. The particulars rely on the evidence gathered by police.
2. There is no direct evidence of Mr Ewing's state of knowledge of the CAM. He gave a no comment interview to police and the responses provided to Ahpra during its investigation did not address this allegation.
3. The evidence in support of Allegation 1 must be considered with regard to three legal principles. These are the standard of proof, the drawing of inferences and the relevance of context evidence.

1. As outlined above in paragraphs 46, 48 and 49, the police informant and her colleagues at the Cyber Squad were of the view, in the context of the criminal prosecution, that they had no information from which Mr Ewing's knowledge of the CAM could be established.
2. However, it falls to the Tribunal to determine for itself whether it satisfied to the required standard that Mr Ewing knowingly possessed the images.
3. In the police prosecution, the criminal standard applied. That required proof of all elements of the charge - including Mr Ewing's knowledge - beyond a reasonable doubt.
4. The criminal standard is the highest standard of proof known to the law. It means that a trier of fact cannot find an allegation proven if they have a reasonable doubt about whether an accused person is guilty. A reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility. It is not enough in a criminal context that the trier of fact considers the accused is 'probably' guilty or 'very likely' to be guilty.[13]
5. This is to be contrasted with the civil standard of proof. The civil standard requires only satisfaction on the balance of probabilities. It is means that the decision maker must be satisfied that all of the elements of the allegation are more likely than not to be true. In civil trials, judges in Victoria explain the standard to juries in this way:

One way to explain the balance of probabilities is by reference to a set of scales, with a pan on either side. Imagine if you placed the evidence you accept that supports the plaintiff on one side, and the evidence that you accept that supports the defendant on the other side. If the scales tilt a little in the plaintiff's favour, then the plaintiff has proved that matter on the balance of probabilities. If the scales are level, or tilt towards the defendant's side, then the plaintiff has not proved that matter on the balance of probabilities.[14]

1. In a disciplinary context, the civil standard of proof applies, but with a further requirement, which is that the evidence should be of a higher quality for more serious allegations, so that the decision maker is 'comfortably satisfied' as to proof. This is known as the Briginshaw principle. In the Briginshaw v Briginshaw[15] case, it was said by Justice Dixon (as he then was) that, where serious allegations are made in a civil matter:

the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality.

...

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[16]

1. In this case, the Tribunal is invited to draw an inference as to Mr Ewing's knowledge of the CAM on his hard drive. This is on the basis that:
   1. Mr Ewing lived at his premises for about ten years;
   2. He lived there by himself and had always done so; and
   3. He was the owner of the computer equipment seized from the premises.
2. At the hearing, Counsel submitted that these circumstances make it unlikely that any other person downloaded the images.
3. The legal principles applicable to the drawing of inferences in civil cases were restated by the Court of Appeal in Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd,[17] and have been followed in disciplinary cases.[18] These are:
   1. First, any inference must be based on facts established by admissible evidence.
   2. Secondly, the process of reasoning must constitute a valid inference, as distinct from speculation or guesswork.
   3. Thirdly, and importantly, where the inference is drawn in favour of the party which bears the burden of proof in the case, the conclusion must be 'the more probable inference' from those facts.
4. It is also said that a decision maker must not simply choose between equally possible inferences. Rather, there must be more than 'conflicting inferences of equal degrees of probability so that the choice between them is [a] mere matter of conjecture'.[19]

1. Context evidence is frequently relied on in criminal proceedings, as evidence that provides essential background information, which may help the decision maker to assess and evaluate the other evidence in the case in a true and realistic context. It makes the evidence understandable.[20]
2. In contrast, tendency evidence is evidence about a person's character, reputation or conduct and, in certain circumstances,[21] the tendency may be used to reason that it is more likely that facts alleged occurred.[22]
3. Counsel for the Board advised the Tribunal at the hearing that:
   1. This is not a 'tendency case' where the Board says that the evidence relied on in proof of other allegations is to be taken into account in proof of Allegation 1.
   2. However, Allegation 1 falls to be considered 'in the context of the other allegations'.

1. In relation to Allegation 1, there are several 'unknowns' in the evidence presented. These are:
   1. There is no evidence as to where the images located on the hard drive came from - whether they were downloaded or obtained some other way;
   2. If the images were downloaded, there is no evidence as to whether this occurred deliberately or in the background of some other online activity;
   3. There is no evidence as to when the images were first created and last accessed; and
   4. There is no evidence as to how long the images were on the hard drive - only as to the date on which they were located by police.
2. The reason that this evidence is not available is that police only conducted searches of the devices seized. Police did not undertake a detailed analysis of Mr Ewing's computer to seek information as to the source of the images.
3. There are also some peculiarities in the evidence that is available. First, the three images the subject of Allegation 1 were the only images located on the hard drive. We assume, given that there were no other charges, that there were also no images of concern on any of the other 13 devices seized by police. Secondly, the Netclean report furnished by police contains results for categories of images described as 'ignorable images' and 'non-illegal images'. There were no images found on Mr Ewing's device that fell in either of these categories.
4. As to the context, this includes the evidence in support of Allegations 4 and 5, which we have found establishes that Mr Ewing engaged in inappropriate and sexualised conduct with two young female school students between November 2014 and August 2017. This context evidence was not considered by police when assessing whether to proceed with the criminal charges of possessing CAM.
5. However, this is not a case where the Board relies on this evidence to reason, for example, that because Mr Ewing engaged in inappropriate and/or sexualised conduct with young females, the likelihood is that he knowingly possessed CAM because he has a particular sexual interest. That is not a path of reasoning that we were invited to follow.
6. The context evidence is therefore of limited assistance. It does not fill the gaps in the evidence. At most, all we can say is that three images of CAM were found on a hard drive over a year after Mr Ewing engaged in inappropriate and sexualised conduct.
7. We are otherwise left to choose between two equally possible inferences. We agree that it is possible that Mr Ewing knew the images were on the hard drive. Equally, however, it is possible that he did not know they were there. We are not able to say either way. His knowledge of the images is not the more probable inference, based on the available evidence. The evidence has therefore not allowed us to reach the required state of satisfaction that Mr Ewing has knowingly possessed CAM.
8. We therefore find that Allegation 1 is not proven.

Allegation 2 - Failure to notify the criminal charge to the Board

1. The conduct underlying Allegation 2 is that, on or about 13 April 2020, Mr Ewing failed to notify the Board in writing of a relevant event within seven days of becoming aware that event occurred, in breach of section 130 of the National Law. A relevant event includes being charged with a criminal offence punishable by 12 months' imprisonment.
2. An issue in this case is whether the relevant failure occurred on or about 13 April 2020, as alleged. In the particulars, the Board has alleged that Mr Ewing:
   1. was charged by police with the offence of knowingly possessing CAM under section 51G of the Crimes Act 1958 (Vic) on 6 April 2020, which is an offence punishable by a maximum of ten years' imprisonment (Particular 2.4); and
   2. failed to notify the Board as required by on or about 13 April 2020, which is seven days after the charge was laid (Particular 2.6).
3. The Board relies on:
   1. the criminal charge sheet contained in the Tribunal Book, which is signed by the police informant on 6 April 2020, with the summons issued on the same date; and
   2. a representation recorded in correspondence from Mr Ewing's solicitor to the Board, dated 24 March 2022. The letter stated:

In relation to Mr Ewing's failure to notify the Board of the criminal charge, it is accepted that Mr Ewing did not meet his professional obligations. When he was charged in April 2020, Mr Ewing incorrectly assumed he only needed to notify the Board in the event he was convicted.[23]

1. In the Tribunal Book, there is no direct evidence as to when Mr Ewing was actually made aware of the charge. This is because he was charged on summons and there is no evidence from police as to when the charge and summons was served on Mr Ewing.[24] The only relevant statutory requirement for service is that the summons be served personally at least 14 days prior to the return date.[25]
2. We have concluded that:
   1. Mr Ewing was registered with the Board and therefore had obligations under section 130 of the National Law.
   2. Mr Ewing was charged with an offence punishable by up to ten years' imprisonment.
   3. The charge sheet was signed on 6 April 2020.
   4. The more probable inference is that Mr Ewing became aware of the charge in the month of April 2020, sometime after 6 April 2020, given the representation made by his solicitors in correspondence to the Board (see above in paragraph 77b).
   5. Mr Ewing never notified the Board of the charge, in contravention of the requirement contained in section 130 of the National Law.
3. While the Board does not know the exact date on which Mr Ewing was charged, the use of the words 'on or about' in the allegation provide some flexibility and we are comfortably satisfied the allegation is proven. If there was no evidence on which to base an inference as to when Mr Ewing was aware of the charge, we would not be satisfied the allegation is proven. However, in this case, we are able to have regard to the representation by his solicitors in their correspondence to the Board.
4. In relation to Mr Ewing's assertion, via his solicitors, that he was not aware of the need to notify the Board of being charged, this does not excuse the conduct or provide a defence to the allegation.
5. This is illustrated by the fact that there was, at the relevant time, an expectation contained in the Australian Psychological Society (APS) Code of Ethics 2007 (Code), that registered psychologists know and understand the legal rules regulating their work. General Principle B of the Code, which relates to the propriety of practitioners, and was particularised in Allegation 2, specifically states:

Psychologists practise within the limits of their competence and know and understand the legal, professional, ethical and, where applicable, organisational rules that regulate the psychological services they provide.

1. Finally, as to the other professional obligation referenced in the particulars to Allegation 2, Counsel for the Board conceded, in response to questions from the Tribunal, that Ethical Standard B.1.4 had been erroneously pleaded and was not relevant to the allegation.[26] We therefore have not found this minor aspect of the allegation proven. It does not affect the outcome in this case.
2. We have decided that the facts of Allegation 2 are otherwise proven.

Allegation 3 - Making a false or misleading declaration about criminal history

1. Allegation 3 is that on or about 5 November 2020, Mr Ewing knowingly or recklessly made a false or misleading declaration to the Board and/or Ahpra when he completed and submitted the application to renew his registration with the Board.
2. Specifically, Mr Ewing declared that since his last declaration to Ahpra, there had been no change to his criminal history. 'Criminal history' is a term defined in section 3 of the National Law. Relevantly, it includes, 'every charge made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of the National Law'.
3. The particulars allege, and the evidence shows, that Mr Ewing said 'no' when asked the following question on around 5 November 2020:

Since your last declaration to Ahpra, has there been any change to your criminal history in Australia that you have not disclosed to Ahpra.

1. The Tribunal is comfortably satisfied that Mr Ewing knew that he had been charged with offence of knowingly possessing CAM when he made the declaration to the Board. It is open to draw this inference because:
   1. There is evidence from Mr Ewing's lawyers to the effect that Mr Ewing became aware of the charge in April 2020 (see paragraph 77 above).
   2. The first mention date at the Magistrates' Court,[27] stated on the charge sheet, is 24 September 2020, a date well prior to the declaration. This date is relevant because it is the date identified in the summons when Mr Ewing was directed to appear at the Magistrates' Court to answer the charge.
2. While we do not have direct evidence as to Mr Ewing's state of mind, we find that Mr Ewing's declaration was made in circumstances where he was, at the very least, reckless as to whether it was false or misleading. This is because he had previously made disclosures to the Board when renewing registration, as referenced at paragraph 8 above (albeit that his response was submitted in a different section of the registration renewal questionnaire). This conduct is indicative of an awareness of the need to make appropriate disclosures to the Board.
3. The Board alleges that the proven conduct is inconsistent with General Principle C and Ethical Standard C.2.1 of the Code. The General Principle includes the following statement:

Psychologists act with probity and honesty in their conduct.

C.2.1. Psychologists communicate honestly in the context of their psychological work.

1. We agree that by recklessly making a false or misleading declaration to the Board, Mr Ewing has behaved in a manner inconsistent with these requirements.
2. We find the facts of Allegation 3 proven on the basis that Mr Ewing has recklessly made a declaration that was false or misleading.

Allegation 4 - Inappropriate and/or sexualised conduct with Student 1

1. Allegation 4 is that between in and around July 2014 and in an around December 2017, Mr Ewing engaged in inappropriate and/or sexualised behaviour towards a female child (Student 1) aged around seven to nine years old, while working as a school counsellor. It is not in issue that Mr Ewing's treatment of Student 1 started in around November 2016, when she was in early primary school. The counselling records produced show that, with few exceptions, the sessions continued on an almost weekly basis until 29 August 2017.[28]
2. The contextual particulars - which are not controversial - are that Mr Ewing:
   1. worked at Student 1's primary school, one day a week;
   2. had a role which involved him conducting one-on-one counselling sessions with four to five students a day, one-on-one meetings with parents, one-on-one meetings with teachers, occasional group sessions and occasional classroom observation sessions; and
   3. after collecting a student from class, would take them to a small room with a glass window in the door, which was opposite the reception and foyer area, and then walk the student back to class.
3. The Board also alleges, and we accept, that Mr Ewing destroyed his notes of counselling sessions after Student 1's complaint was made, and did not enter some of them electronically until later. [29]
4. The specific conduct alleged against Mr Ewing - which we have considered in detail - falls into three categories:
   1. First, on unspecified dates during counselling sessions, on more than one occasion, Mr Ewing engaged in six types of behaviour (Particular 4.7).
   2. Second, in around mid-April 2017, Mr Ewing wrote a story dictated to him by Student 1 (Particular 4.8).
   3. Thirdly, on 29 August 2017, Mr Ewing placed his hand between Student 1's buttocks cheeks in the middle of her buttocks and over her clothes, which was witnessed by a member of staff and raised with the Vice Principal[30] (Particulars 4.9 and 4.10).
5. The Board relies on:
   1. an interview given by Student 1 to Aphra on 15 January 2024;
   2. an interview given by Mr Ewing to Ahpra on 14 September 2018;
   3. Victoria Police 'Interpose' note,[31] dated 31 August 2017;
   4. Workplace Investigation Report, dated 15 October 2018;
   5. An email from Mr Ewing to his employer's supervisor, dated 31 September 2017;
   6. a document described in the index to the Key Documents Tribunal Book as 'Practitioner's information on therapy and clinical work with children', undated; and
   7. three statements by a member of teaching staff at Student 1's primary school (Teaching Staff Member), who witnessed some of the alleged conduct.

1. The counselling referral documents identify that areas of concern for Student 1 include a physical diagnosis of Delayed Auditory Motor Processing Skills (DAMPS), affecting hand-eye co-ordination, self-esteem, frustration and anger issues and restless behaviour.
2. Overall, we have accepted the truth of the account of Student 1 to Ahpra so far as it relates to Particulars 4.7, 4.8 and 4.10. While she acknowledges difficulties with some aspects of her memory when recounting, when aged 14 in 2024, events that occurred when she was 7 to 9 years old,[32] this is not unexpected when a teenager such as Student 1 is interviewed about events occurring when she was younger. We do not regard this limitation to be a reason to disregard her evidence.
3. We have approached our decision by:
   1. First, setting out our conclusions regarding the facts alleged in the particulars to Allegation 4.
   2. Then, considering whether the proven conduct was inappropriate and/or sexualised in nature, as alleged in the headline to Allegation 4.

1. Particular 4.7 alleges that Mr Ewing engaged in six types of behaviour on unspecified dates. The Tribunal considered these alleged types of behaviour as follows.

1. Student 1 said the following to the Ahpra investigator:

So we'd go up to the office, and there'd be a little room in front of it with just a window and we'd sit in that room and we'd play and chat I believe.[33]

...

...we'd play together, and he must have asked me a few personal questions because (ui)... And I was there for the support, so he needed to ask me these. And he did his job to a degree.

...

... I think I'd tell him what was going on at my house and he'd sympathise a bit. And he'd written them down sometimes, but that's all I remember.[34]

1. We are comfortably satisfied that Mr Ewing played and chatted with Student 1, based on this evidence. We find the conduct in Particular 4.7(a) occurred.

4.7(b) - Allowing Student 1 to draw inappropriate pictures for him and write on the pictures "I love you"

1. The evidence relied on by the Board comprises drawings contained in Mr Ewing's case notes and statements made by Mr Ewing in his first interview with Ahpra, in 2018. Mr Ewing also acknowledged during the workplace investigation that Student 1 drew the pictures in his notes. He told the workplace investigator that, while he thanked the student, he did not respond to them.[35]
2. The case note to which we were referred by the Board includes a page of coloured 'bubble' writing by the hand of a child which says, 'I love Jason'. There are three love hearts drawn beneath.[36]
3. We accept on the basis of this evidence that Student 1 did the drawing and wrote the words 'I love Jason' on it. We also accept that Mr Ewing, at a minimum, accepted the drawing and did not seek to prevent Student 1 from doing it or sharing it.
4. We find the conduct in Particular 4.7(b) occurred.

4.7(c) - Told Student 1 'you're beautiful and I love you'

1. The evidence relied on in support of this Particular is an 'Interpose' note contained in material from Victoria Police. There is no direct evidence from Student 1 about this alleged conduct.
2. The Interpose note appears to have been prepared by the police informant and it says:

Disclosure with subject, notes S/D WATTIE

Subject disclosed that suspect did touch her on on [sic] bum and said 'I love You' but that it was the same way that her parents do. Subject stated that she likes suspect and he really good to talk to.

1. Counsel for the Board acknowledged in oral submissions that this Particular was 'not as solidly grounded in the evidence'. We agree because:
   1. The words attributed to Mr Ewing in the Particular are not actually reflected in the police note itself.
   2. The quality of the evidence, which appears to be in the nature of third-hand hearsay,[37] is not sufficient to discharge the onus of proof.
   3. Mr Ewing, in corresponding with a representative of his employer about Student 1's allegations in 2017, specifically said 'I had never said "I love you" to [Student 1]'.[38]
2. We are not comfortably satisfied that the conduct in Particular 4.7(c) occurred.

4.7(d) - Allowed Student 1 to touch him on the head and arm

1. The evidence provided in support of this Particular is derived from Student 1's interview with Ahpra in 2024. She said:

...I think later on in the time I was under his guidance, I got the Supergirl figure, she's like attached to this cloud, but she could also detach, I believe, and I played with him with it. And I remember once like landing her on top of his head, reaching up as he sat down and placing her on top of him. And he would, I think he told me that he wasn't, I wasn't allowed to touch him at all because of guidelines.[39]

...

...he would allow me to touch his head or like touch his arm... I'd walk around the room, walk up to him sometimes, and I'd touch his head to play because I like put characters on it. And I, it was like the moon, because I'm pretty sure he was like half bald at the time. So they'd walk on his somewhat bald head and he would laugh. He'd say I was not allowed to touch him. And so I'd stop. But he never really told me often. Like it was once I remember he told me and once I like must have reached over and touched his arm a bit before pulling away.[40]

1. Mr Ewing denied this allegation in part, stating that Student 1's recollection of him being bald is 'demonstrably wrong' because he has 'a pretty full head of hair'.[41]
2. Notwithstanding Student 1's indication that Mr Ewing did not always allow Student 1 to touch him on the head or the arm, we are satisfied based on her account that the conduct in Particular 4.7(d) occurred, and that Mr Ewing tolerated this. We do not regard Student 1's description that Mr Ewing was 'somewhat bald' to materially detract from her account given it is otherwise specific and coherent.

1. Student 1 has, in her interview with Ahpra, made numerous references to this conduct occurring, specifically:

I laughed and took [the Supergirl figure toy] off [his head]. Sat back down. And I think he touched my thigh a bit, or something.[42]

...

I think we were just chatting or playing, and he just kind of touched [my thigh] and being a child I didn't think much of it and laughed probably.[43]

...

Investigator: So you said that sometimes he would rub your thigh a bit.

Student: Just a little.

Investigator: ...did that happen one time or more than one time?

Student: ...Not each time, but like majority.[44]

...

I think the last time he [rubbed my thigh] was the day a parent caught him touching my butt. So he would, he rubbed it lightly as he would, and I laughed and would continue playing, and I think like five -10 minutes later the session ended and we stood up.[45]

1. While this detail does not appear to have emerged in the earlier investigations by Victoria Police, Mr Ewing's employer and Ahpra, the statements Student 1 made in 2024 are consistent and compelling.
2. The conduct in Particular 4.7(e) is proven.

4.7(f) - Reached down, lent over and patted Student 1's bottom including when playing basketball with her and advising her that their session was over and before walking her back to class

1. Student 1 gave evidence of this alleged conduct to Ahpra. She stated:

So we'd go to basketball, and I fancy myself a really good dribbler at that point in time. So I was dribbling a basketball and I think I shot it to him and he passed it back, bounced pass, chicken wings. And he, I came up to him, got the ball, and he touched my butt a bit, like patted it.

...

I was pretty sure I was holding the basketball and we, I, he or I, (ui) and we were laughing and he pat my butt and I smiled up at him.[46]

...

I was about to head back to class. And so was he and like pat my butt before we left and he dropped me back off at my class.

...

I think he was just saying something like, well, that concludes the lesson. Or something along those lines of us being finished for that day of chatting and playing. And I must have said something and he laughed and patted my butt. And then he opened the door and I left first and went back to class.[47]

1. Mr Ewing said to the workplace investigator that it was possible he had 'randomly reached out and tapped [Student 1] on the bottom...in the context of "Come on you need to sit down"'. However, he did not specifically recall this occurring.[48]
2. On the basis of Student 1's evidence, we are comfortably satisfied that the conduct occurred as alleged in Particular 4.7(f).

Particular 4.8 - Mr Ewing wrote verbatim a story that Student 1 dictated titled 'Best friends forever - Jason and [Student 1]' about them getting married and with a drawing of them kissing with a speech bubble stating 'I love you'

1. The 'story' said to have been transcribed by Mr Ewing on instruction from Student 1 is not contained in the Tribunal Book. The evidence of it is:
   1. references in the clinical records for a session that occurred on 21 April 2017;[49]
   2. described in an email to a representative of his employer; [50] and
   3. described in a document submitted to the workplace investigator called 'J. Ewing account of events dated September 2017'.[51]
2. Student 1 does not mention the story in her interview with Ahpra.
3. In two of the accounts, Mr Ewing said the conduct was a 'therapeutic activity' intended to 'enable the child to express thoughts and feelings with various protagonists'. He regarded the drawings as 'an externalisation of the child's understanding of her parents' marriage difficulties at the time'. He says that he raised the booklet in supervision.
4. On balance, and notwithstanding the absence of the source document from the material, we are comfortably satisfied of the fact and mode of the story coming into existence and of its general content. The conduct described in Particular 4.8 is proven.

4.9 and 4.10 - During a counselling session on 29 August 2017 with Student 1, Mr Ewing placed his hand in between Student 1's buttocks cheeks in the middle of her buttocks over her clothes. This was witnessed by a Teaching Staff Member and a complaint was made to the Vice Principal. On 31 August 2017, Mr Ewing was stood down

1. The evidence of this conduct is contained in:
   1. three statements by a teacher's aide and part-time library technician who witnessed the alleged conduct (Teaching Staff Member). These are to:
      1. Victoria Police, dated 7 September 2017 (unsigned);[52]
      2. the workplace investigator, dated 28 March 2018 (unsigned);[53] and
      3. Ahpra, dated 21 January 2026, both sworn and witnessed, confirming the previous accounts are true and correct;
   2. notes obtained from the principal of the school, taken at the time the Teaching Staff Member reported her concerns, signed on 30 August 2017;[54]
   3. the transcript of the workplace investigation interview with Mr Ewing, dated 14 September 2018; and
   4. the transcript of Mr Ewing's interview with Ahpra, dated 15 March 2024.
2. In her statement to Victoria Police, soon after the alleged events, the Teaching Staff Member says:

I walked from the classroom I was in towards the foyer area. I got to the door which has a window so I could see straight into the room. I saw [Student 1] standing beside Jason building with some blocks. Jason was seated on a chair and [Student 1] was standing at the table next to him. As I looked through the glass panel, I saw that Jason was to the left and [Student 1] directly in front of me. I saw that Jason had his right hand cupped under her buttocks, I saw Jason's hand cupped in the middle of her buttocks. I tapped on the window and Jason quickly took his hand away from her buttocks. I opened the door and gave [Student 1] the [message] and I left straight away. I couldn't believe what I had just seen, it was awful. I went straight to the staff room and I spoke to another teacher about what I had just seen. That teacher told me to report the incident to the Assistant Principal... which I did.

1. The Teaching Staff Member's statements to the workplace investigator and the principal's notes are entirely consistent with this account in all material respects. In speaking with the workplace investigator, the Teaching Staff Member says:

It happened quickly. I kept walking towards the door and as I approached I saw that Jason had his right hand cupped underneath [Student 1's] buttocks. He didn't just have his hand on her bottom, he was cupping her buttocks from beneath. I think his hand was still. I don't recall him moving his hand. [Student 1] seemed oblivious to this. Jason was sitting side on to me as I approached. When I tapped on the glass, Jason quickly took his hand away. He seemed surprised to see me.

Came around front of admin bench looked through the viewing window

Saw Jason sitting on a chair

The child standing to his right - building blocks (blue)

Noticed his hand cupped under her buttocks (not under shirt/tunic)

The child wearing winter tunic with tights

Tapped on the window & opened the door

Jason quickly removed right hand (not sure where left hand was)

1. The Tribunal Book contains several accounts by Mr Ewing of the events. In summary, he has said:
   1. In an email to a representative of his employer, dated 13 September 2017:

[Student 1] and I were playing "Jenga" and she was kneeling on the chair to reach the top blocks. I reached out and placed my hand on her waist to steady her. I clearly stated that there was nothing sexual or inappropriate about this.[55]

1. To the workplace investigator, in October 2018, that he was:

...'playing Jenga' and Student 1 'was actually kneeling up on the chair and kind of stooped over this thing and...- she was teetering and I'm like "Come on you need to be steady you need to sit down"... And she actually kneeled up on the chair so that she had extra height so she could reach the top of the blocks...I can remember that as she was teetering on- on the- on the chair that I put my hand on her hip at the top of her hip like that to steady her...Well back of the hip/buttocks. Yeah. I- as I've been clear right from the start there was absolutely nothing sexual about that touching. It wasn't feeling or groping or anything like that. It was almost like a 'I'm gonna hold you here or else you're gonna fall off'...and you know saying that "You need to sit down; you need to be careful"... It would've been 20 seconds 30 seconds...I was worried she was gonna fall over... I spontaneously reached out and that's just where I- I grabbed her. It wasn't a conscious- I didn't think I'm gonna touch one part of her body.[56]

1. To the Ahpra investigator, in March 2024, that:

She could be quite clumsy, to put it indelicately...she was climbing, trying to climb up onto a table, and was teetering, and I put my hand on her waist to steady her...I was sitting down in a chair, she was kneeling on a chair. And she's one of those, just really hyper sort of kids, that would wriggle and squirm around a lot. And as she was playing Jenga, she started to sort of lean across and try to, and get on the table, and the chair was a bit wonky. And I put my hand across on, it wouldn't have been, it was on the side of her, her buttock basically, but it wasn't on, you know on, on her bum itself, it was on the side of the hip to steady her...[57]

1. In an interview with his employer, dated 14 February 2018 (the notes of which record that Mr Ewing said), that:

[Student 1] was wandering and climbing in the counselling room. [Student 1] climbed on a chair on her knees to complete the top of tower blocks. [Student 1] was always tripping so Jason reached to steady her and placed his hand on her hip.[58]

1. As to his recollection of what he did when the Teaching Staff Member arrived, Mr Ewing has said:
   1. To the workplace investigator:

As I recall it I would've removed my hand and turned around to see who's knocking on the door...I wasn't thinking of it consciously I don't think.

At the same time [Teaching Staff Member] arrived at the room to get [Student 1] for recess and knocked at the door. She did not say anything to Jason about seeing anything inappropriate and only told him where to send [Student 1].

1. It is uncontroversial that the Teaching Staff Member complained to the Vice Principal and that Mr Ewing was stood down by his employer on 31 August 2017.
2. We are comfortably satisfied that the conduct alleged in Particular 4.9 and 4.10 occurred because:
   1. The evidence of the Teaching Staff Member is consistent and compelling. She also complained immediately to her superiors and to police. This report enhances the credibility and reliability of the evidence.
   2. Mr Ewing's accounts are inconsistent with the account of the Teaching Staff Member, who repeatedly stated that Student 1 was standing and was not climbing on a table.
   3. There are some inconsistencies in Mr Ewing's accounts that trouble us. As he did not attend the hearing or provide any submissions, we have not had the opportunity to hear from him to understand whether they can be reconciled. These include that:
      1. he has sometimes described touching Student 1 on the 'waist' and other times on the 'hip'; and
      2. he originally described perceiving the need to steady Student 1 due to her clumsiness but later said that the chair was 'wonky'.
   4. We regard Mr Ewing's account to be implausible. While it would be instinctive to reach out to prevent a young child from falling:
      1. this is not consistent with Mr Ewing's account to the workplace investigator, which was that the contact lasted for 15 to 20 seconds;
      2. both Mr Ewing and the Teaching Staff Member say that Mr Ewing pulled his hand away from Student 1 when she knocked at the door. This is not consistent with an ongoing concern for the safety of the student; and
      3. the suggestion that Student 1 was teetering on a chair or table is positively discounted by the Teaching Staff Member in her Statement to Ahpra. She has made a sworn statement and said, 'That is definitely not correct'.[59]
3. While the Board said that we could have regard to the evidence of other conduct as context evidence in assessing Particulars 4.9 and 4.10 - that is, that there had been an erosion of professional boundaries over time - we did not need to do so in order to make findings.

1. As there is no expert material in the Tribunal Book, in assessing whether the proven facts are inappropriate and/or sexualised conduct, we have:
   1. applied the common sense of all panel members; and
   2. relied on the skill and experience of the health practitioner members.
2. Counsel for the Board invited us to consider the 'cumulative effect' of the behaviour as inappropriate and/or sexualised.
3. There is some conduct that we are not satisfied is inappropriate or sexualised, either on its own or as part of a course of conduct. These particulars, and our reasoning are as follows:
   1. Particular 4.7(a) - Playing and chatting with Student 1: We think this conduct is explicable in the context of Mr Ewing establishing and maintaining a therapeutic relationship with a young child. It is not conduct that necessarily transgresses professional boundaries. In reaching this view, we have had regard to the account of Student 1 set out above, in which she expresses the view that Mr Ewing 'needed' to ask her personal questions.
   2. Particular 4.7(b) - Allowing Student 1 to draw inappropriate pictures for him and write on the pictures "I love you": We are not persuaded this conduct is inappropriate or sexualised, bearing in mind that we have no direct evidence from Student 1 as to her recollection of this, including what she intended by the words or image. We take into account that, when it was done, Student 1 was very young. It is possible that a child in early years would use the word 'love' to express happiness, safety and security; it is not necessarily the case that it reflected anything more sinister.
   3. Particular 4.7 (d) - Allowing Student 1 to touch him on the head and arm: This conduct is not in our view inappropriate or sexualised, given it is said to have been initiated by Student 1, and it has occurred in the context of her describing herself playing in a counselling session. There also seems to be doubt about the number of times the action occurred, and the number of times Mr Ewing explained to the child that it was against the guidelines.
   4. Particular 4.8 - The transcribed story about Mr Ewing and Student 1: The only evidence before us is to the effect that the illustration of Mr Ewing kissing his client was completed by the child and not him. Further, we understand that asking a child to tell a story might provide them with an indirect way to communicate emotions or ideas. While we are concerned that the way this task unfolded might - with the benefit of hindsight - have been managed differently, that does not make the conduct, when it occurred, inappropriate or sexualised.
4. We are satisfied that the remaining facts proven are inappropriate and sexualised conduct, both independently and cumulatively. Our reasons are as follows:
   1. Particular 4.7(e) - Touching Student 1 on the thighs on unspecified occasions: This conduct is clearly inappropriate and, due to the area of the student's body that was touched, the conduct was sexualised. While the touching of a thigh might not always have a sexual connotation, we think that it did in the particular setting in which it occurred here, during counselling, without any contextual justification. There is no benign justification for touching any client's thigh.
   2. Particular 4.7(f) - Touching Student 1 on the bottom on unspecified occasions: The proven conduct of touching of the student's bottom over her clothes and laughing is inappropriate where it is undertaken by a person such as Mr Ewing, who is not a parent or immediate family member of the child. It is also sexualised due to the part of body concerned and because the conduct occurred in private.
   3. Particular 4.9 and 4.10 - Cupping the student's buttocks on 27 August 2017: The conduct is both inappropriate and sexualised, which is manifest because of the part of the body involved and the circumstances of cupping the child's buttocks, which was both specific and intentional. There is no justification for it, and we have rejected Mr Ewing's suggestion that the contact was accidental or required for safety reasons.
5. The Board alleges that Mr Ewing's conduct was inconsistent with General Principle C and Ethical Standards C.1.1 and C.1.2 of the Australian Psychological Society Code of Ethics, 2007. General Principle C is headed 'Integrity' and relevantly says:

Psychologists recognise that their knowledge of the discipline of psychology, their professional standing, and the information they gather place them in a position of power and trust. They exercise their power appropriately and honour this position of trust. Psychologists keep faith with the nature and intentions of their professional relationships. Psychologists act with probity and honesty in their conduct.

1. The Ethical Standards relied on are headed 'Reputable Behaviour' and state:

C.1.1. Psychologists avoid engaging in disreputable conduct that reflects on their ability to practise as a psychologist.

C.1.2. Psychologists avoid engaging in disreputable conduct that reflects negatively on the profession or discipline of psychology.

1. We are comfortably satisfied that Mr Ewing's proven conduct under Allegation 4 is inconsistent with these principles.

1. On the basis of the above conclusions, we are comfortably satisfied that the facts described in Allegation 4 and its particulars are proven, save with respect to Particulars 4.7(a), (b), (c) and (d).

Allegation 5 - Inappropriate and/or sexualised conduct with Student 2

1. Allegation 5 is that between in and around July 2014 and in an around December 2017, Mr Ewing engaged in inappropriate and/or sexualised behaviour towards a female child (Student 2) aged around five to eight years old, while working as a school counsellor.
2. The contextual particulars - which are not in issue - are that Mr Ewing:
   1. worked at Primary School 2 two days a week;
   2. had a role which involved him conducting one-on-one counselling sessions with four to five students a day, one-on-one meetings with parents, one-on-one meetings with teachers, occasional group sessions and occasional classroom observation sessions;
   3. would also occasionally conduct counselling sessions outside to encourage physical activity; and
   4. after collecting a student from class, would take them to the music room, which had large glass panels on one wall for 40-45 minutes before returning them to class.
3. The conduct said to be inappropriate and/or sexualised falls into three categories:
   1. First, on unspecified dates during counselling sessions, on more than one occasion, Mr Ewing engaged in 15 types of behaviour (Particular 5.7).
   2. Second, in a group session with Student 2 and her friend, Mr Ewing told the students that it would be funny if they kissed under the blankets (Particulars 5.8 and 5.9).
   3. Thirdly, Mr Ewing greeted Student 2 for her counselling sessions by giving her a tight hug and, when he walked her back to class, he would end the session by giving her a tight hug (Particular 5.10).

1. There is no clinical documentation in the Tribunal Book for Student 2. She says in her interview that she was referred for counselling due to 'anger management' issues .
2. The clinical documentation was, however, made available to the reportable conduct investigator and is referenced in the investigation report. Although we have not sighted the records ourselves, we are satisfied, and it does not seem to be controversial, that Student 2 was a client of Mr Ewing between 2014 and August 2017.[60]
3. In relation to Allegation 5, the relevant evidence can be found in:
   1. a statement by Student 2's high school counsellor, given to the reportable conduct investigator, dated 12 July 2021;
   2. an interview given by Student 2 to the reportable conduct investigator, on 13 July 2021; and
   3. Student 2's interview with Aphra on 16 January 2024;
   4. Mr Ewing's interview with Ahpra on 15 March 2024;
   5. a statement by Student 2's mother to Ahpra, dated 9 April 2024; and
   6. an email response of Mr Ewing to Ahpra, dated 10 April 2024.
4. We are conscious that Student 2, in her interviews, is asked to recall events that occurred when she was very young. However, the Ahpra investigator in particular has taken care not to lead Student 2 in the manner of questioning and Student 2 recounts almost all of the facts in a narrative form, which makes it credible. Student 2 has also made a sworn statement, as an adult, that the evidence is true and correct.[61]
5. It is apparent that Student 2 has discussed some of her memories with others, including the reportable conduct investigator, her mother and her high school counsellor. We have done our best, in the absence of witnesses being called at the hearing, to scrutinise this carefully and have, in one instance, declined to make a finding because the evidence is unreliable.
6. We have set out the evidence and our analysis below in a table format, because the number of alleged facts is considerable. This is intended to make clear the sources of evidence relevant to each of the particulars and our conclusions about each of the facts alleged. After the table, we have set out our analysis of whether each of the proven facts are inappropriate and/or sexualised conduct either in isolation or as part of a course of conduct.[62]

Mr Ewing allowed Student 1 to use inappropriate language.

'An unnamed child told the school counsellor that she attended a counselling session with her friend, who used to write swear words on the white board and the counsellor wouldn't say anything about it'.[63]

Handwritten case notes of Mr Ewing dated September 2014 record that Student 2 wrote 'fucking' on the whiteboard and he told her this is not appropriate. She also wrote 'fuck' and 'kiss my ass' on the whiteboard but he did not react.[64]

There is insufficient evidence before us of the conduct alleged. While there are second-hand sources referencing the swearing by Student 2, there is no direct evidence available. Even if we accept that the inappropriate language was used, it is difficult to see how Mr Ewing 'allowed' this to happen or could have appropriately intervened to stop the student. We are therefore not comfortably satisfied of the facts alleged. This conduct referred to in this Particular is not proven.

Mr Ewing showed Student 1 a video of himself attending a heavy metal concert.

Interview with Reportable Conduct investigator, 2021:

'We talked about him going to heavy metal concerts. He'd show me clips of him going to a heavy metal concert. We'd watch YouTube on his phone... He showed a video of him at a heavy metal concert. Like - like, as in like, filming a stage dive at like, a heavy metal concert'.[65]

'...he also intended to show me like videos of him at heavy metal concerts. He was also very into heavy metal. So sort of just introducing me to his music taste, which, look in my personal opinion, I know that he probably meant no harm by it. But I feel like it's a bit weird to show a six-year-old heavy metal, like death metal'.[66]

'[Student 2] had told her they were always alone in the room with Jason, who showed them videos of him at heavy metal concerts'.[67]

The evidence of Student 2 is persuasive because it was repeated in two investigations. It was not contradicted by Mr Ewing and was corroborated by evidence that Student 2 reporting this to her high school counsellor. The conduct alleged in this Particular is proven.

Mr Ewing showed Student 1 a violent animated video game on his phone called 'Stickdeath'.

Interview with Reportable Conduct investigator, 2021:

'There was this thing called Stickdeath. Pretty corny name. It was this really poorly animated stick figure thing. But it had like, really, really, bad gore. Like, really bad gore. There was this one video where they like, summoned like a demon thing, and like - there were like these two stick figure people, and they summon like, a demon in their basement. And then like - the demon like, possessed one of them, and then one of their heads started spinning around and they started growing long nails, and they were like, screaming in agony. And the demon started summoning other people like - like, made up people and they'd rip their heads off and throw up on them... I thought it was funny. I thought it was wild... It kind of freaked me out a little bit. But I didn't really tell him though. Because it didn't freak me out that much because - yeah. But - yeah. It was just really weird sort of, gory, sort of, stick men ripping each other part. Like, blood everywhere. Sort of, throwing up'.[68]

'It shows stick figures around a pentagram summoning the devil and includes some mild swearing. A stick figure is turned into a demon or creature and depicts one of the figures being decapitated and another being skinned. I think that video was inappropriate content for a school employee to be sharing with any student, and is clearly not age appropriate. I can't see how that video would be appropriate in any way to share with a young child in any environment and I can absolutely see how the video could have given [Student 2] nightmares'.

'So, so yes, I showed [Student 2], one of the things I did with some of the kids was invite them to show me some of their favourite YouTube videos or things like that... And Stick Death is, it's a series of funny animations that were big, I think, in early YouTube days; they go for about a minute each. They're totally child friendly. They're stick figures, you know, like a circle with a, you know how you draw stick figure, like a circle with just the Y for legs and sticks for arms, coming to a demise in a humorous way. You know like maybe a car would drop on them or something like that. These are funny videos. [Student 2] found them funny. They are no way got to do with trauma or, or scary in, in any sense. They're child friendly. You could probably YouTube them and, and, and see them for yourself. And I did that in the interest of rapport building. And [Student 2] found the videos funny, and in no way was traumatised by them'.[69]

Mr Ewing admits showing the 'Stickdeath' video to Student 2, although he regards it as appropriate. The admissions are consistent with the factual matters alleged by Student 2. The conduct alleged in this Particular is proven.

Interview with Reportable Conduct investigator, 2021:

'When I was about 10 - actually, when I was about like, nine. I watched this youtuber and he was playing a skateboarding game, and he accidently said the name of a pornography site. And I had never heard that word before. So I searched it up and Mum saw it in my search history, and then it became like, a weird addiction thing. I didn't do anything, I watched it. I just watched it. And it became an addiction for about like, a good year or so... Jason knew about it though. Jason knew that I knew what that was. Which probably wasn't a good thing... I don't remember how he did though'.[70]

'The mother had in [sic], looked at [Student 2]'s iPad or computer or whatever device she was using at home, and had discovered that she'd been watching pornography. And I think as well, she may have been accessing some kind of online thing where you connect with strangers, I can't remember what it's called, which is obviously really concerning. And the mother was worried about [Student 2] accessing that and asked me to investigate it and speak to [Student 2] about it... I think on maybe one, or maybe two occasions, I would have very gently have approached it. I know that if I had have raised it directly, I would have just got a denial, or kids obviously get embarrassed, and it was very obvious that she didn't want to talk about it. So she was just saying I don't know, I can't remember. And I didn't push it'.[71]

'It wasn't like I just sat down with her and started talking about pornography'.[72]

Mr Ewing admits discussing pornography with Student 2. The specific conduct alleged in this Particular is proven. However, the context is relevant to our consideration of whether this was inappropriate and/or sexualised. See paragraph 152 below.

Mr Ewing gave Student 1 a diary with a drawing of her in it.

'He also gave me a diary, like a sort of like noting diary and he drew like a picture of me at the end. And I don't know where that diary is, but I remember it being like a really weird sort of weirdly detailed picture. Like it was, I think it was meant to be like a stick figure, but he drew it in sort of like, he drew the body, from what I can remember, sort of highly detailed and it was weird'.[73]

'But the diary, I think I got it at the start of 2016. And it was this pink sort of like sunset sort of themed, like it was sort of, it was like a planner and a diary, sort of just like a notebook with like days of the week and like the dates and that sort of stuff. And I was meant to write down, I think, like whenever something happened, it wasn't even like whenever something like with my emotions happened, it was just like whenever something happened. Like I had to write down, like I never ended up using it. The only time I ever used it was whenever I wrote, I got stung by a bee. That was like the only thing that I ever wrote in it... And at the back of the book there was this drawing of me as like a princess because he, like he, I must admit like he did have a pretty good talent for drawing... And he drew this sort of version of me, and I had like long, curly brown hair. And I was in this, it was like a stick figure sort of thing. And I had like a crown on. And he wrote my name above it. And I was in this pink dress. But the dress wasn't like a normal dress. It was like, I'm probably remembering it wrong'.[74]

Picture of front and back of diary:[75]

'I also remember a diary that Jason gave [Student 2] and I remember seeing drawings that Jason drew for [Student 1] in the diary'.[76]

'I can remember it now you've shown it to me. It was, it was about encouraging her to have a good year... I don't think I did draw that picture... I did write those words. I, I, I honestly cannot remember... That's definitely my writing... I may have drawn, drawn the smiley face. But I certainly didn't draw the body. And I never drew the crying person down the bottom. That's definitely not me... I'm wondering if [Student 2] added them later'.[77]

'I actually, I think I may have given it to her. I, I had no memory of it until I saw it. It's, it's certainly possible that I gave her that diary... that diary was a suggestion of one of my supervisors. It was a self-reflective tool. It was somewhere where she could write down things that had happened that she might want to reflect on, or that she might want to bring to counselling the week after'.[78]

'I think I drew that face, but I think the body and the crying girl was added later, that certainly wasn't, I don't recognise that at all'.[79]

The provision of diary to Student 2 containing a written message and a drawing, is admitted by Mr Ewing. It was also observed by Student 2's mother. We further find, based on our review of the photographs and Mr Ewing's partial admission, that it is more likely than not that Mr Ewing drew some or all of the picture in the diary. While it may have been coloured in or supplemented by Student 2, the more probable inference is that the outline of the person was drawn by an older child or adult. We infer that this was Mr Ewing, noting there is not suggested in any of the material in the Tribunal Book that any other person was involved in the drawing. The conduct alleged in this Particular is proven.

Mr Ewing gifted Student 1 a painting by his father.

Interview with Reportable Conduct Investigator, 2021:

'He brought a painting to school and then he said - it was after school actually. He came down to my classroom and he said, "Hey. Give this to your mum. My father died recently, and I want you to have this." And I'm like - now thinking about it, I'm thinking, "Why the hell would you give me a painting from your deceased father. Shouldn't you be in like, grief? Shouldn't you be like, taking care of the situation? Shouldn't you be like, keeping that because your father sort of, died?" And what's even worse is that his father didn't die until like, a few years later'.[80]

'But I remember on the last day that he saw me, he gave me a painting from his father that had passed or so I was told. I actually recently found out that his father had passed away until like 2018. So, like right after he left. So I'm not sure where he got that painting from or why he gave it to me or why he would even give me a painting from his dead father... I think I was the only one who got the painting - who got a painting. And it was a painting of the seven apostles'.[81]

'During the final week of school term, [Student 2] brought home a painting which Jason had given to her'.[82]

'So in 2014 my father died. My father was an artist, he painted in oils. And when he passed away, I inherited about a hundred paintings. They weren't framed, they were just on, on board. And with the school's permission and involvement I brought a bunch of the paintings in and gave them to, or offered them to all of the children that I was working with, and also to the school...I can remember giving [Student 2] a painting'.[83]

'Her story of me picking her up like a child, and packing her bag with the painting is also inaccurate. I gave her the painting over a year earlier - my father passed in 2014 so it would have been the later half of that year when I gave her and all the other children paintings'.[84]

Mr Ewing admits giving a painting to Student 2, although seeks to explain why it was justified. This explanation does not detract from proof of the facts in the Particular. The conduct alleged in this Particular is proven.

'I mean like he did throw water balloons at me because we had like a like session at the playground and he threw these water balloons. I mean like we went to the tap, and he threw all these water balloons at me... Like it was like summer, and he brought me out to the playground. This was when everybody else was like in class and that sort of stuff. So it was just us two out on the playground and at school the playground was pretty far away from the classrooms, like away from all windows and that sort of stuff. It was a very sort of like blocked off sort of area. And I remember we got, we found these packet [sic] of balloons in the music/counselling room. And we filled them up with water and we threw them off the top of the playground and he threw it at me. It didn't, I don't think it burst, but he threw one at me. Like he sort threw one at like my front, at like my chest sort of area. And that's all I can remember'.[85]

'We, we filled up some balloons with water and burst them outside'.[86]

'I didn't throw a water balloon at any child. I'd never throw a balloon or throw an object at a child'.[87]

Mr Ewing admits playing with water balloons with Student 2, and we find based on Student 2's account that he threw them at her. We have reached this view because Student 2's account is more plausible than Mr Ewing's account. It seems less plausible that two people would make water ballons simply to burst them, rather than to throw them. The conduct alleged in this Particular is proven.

Mr Ewing invited Student 1 to have a sleepover at his house.

Interview with Reportable Conduct Investigator, 2021:

_'_There was one main thing that I didn't realise made me uncomfortable, but now thinking about it is totally gross. He'd talk about having a sleepover. Or me going up to his house and having a sleepover... More than once. He talked about it almost all the time. He'd say, "You should come over to my house for a sleepover." Or like, "You should invite this person.

We can have like a - like a little sleepover, slumber party thing."... It was a bit weird to me but I didn't really say anything because I thought it was normal. I thought it was like - yeah. Other people have sleepovers. It's just going to be fine. And then Mum said no'.[88]

'...he said to my mum, [Student 2] really said that she wants to have like a sleepover with me at my house and come home in my car and all that sort of stuff. And mum knew that I wasn't saying those sort of things. Like she knew that it wasn't me. But he was pretty, he talked about it in sessions as well. He'd talk about like, oh you should come over. We can have a sleepover together. You can spend the night at my house. I'll like pick you up and take you home in my car and it was really weird because I remember sort of sitting there whenever he was talking to me about sleepovers and getting this really like sort of like almost sick like sort of ticklish feeling in my stomach'.[89]

'I don't remember it too well. And like I don't think he ever mentioned it in the sessions. But now I don't remember this. But mum's told me this. So, but I have like, I can't remember it, but I have like a feeling that it did happen. Like I can feel something, like I can't really remember it. But I have a feeling that it definitely did happen. Like I can feel it'.[90]

'I can remember that during the final week of the school term i attended the school to collect [Student 2] from "the breezeway" area on the school grounds. Jason approached me near the car park just outside the breezeway whilst [Student 2] was talking with a school friend of hers. I can remember Jason saying to me something like, "[Student 2] has mentioned to me that she wants to have a sleepover at my house, but that's not allowed". I can remember that i [sic] was in a rush, and just wanted to collect [Student 2] and get home. i [sic] didn't think anything of the comment at the time'.[91]

'[The sleepover] conversation never happened. I've never, and I would never, as a child to have a sleep over. I mean that's obviously grossly inappropriate. I've got no idea where that's come from'.[92]

'I can assure you I'd never ever invited a child for a sleepover. And I never would. I mean, that's grossly inappropriate'.[93]

'Q: And talking about this conversation with a sleepover with [Student 2] and possibly [Student 2]'s mother, you don't recall any conversation like that.

'[Student 2] also said Jason talked to them about having a sleepover at his house, but it didn't happen'.[95]

We have not accepted Student 2's version of events for two reasons. First, Student 2's account is not consistent. She oscillates between whether she can remember the conversations or not and says her account is based on a 'feeling'. She also acknowledges that her memory has been influenced by conversations with her mother. Secondly, her mother's version of events is that Mr Ewing reported to her that Student 2 initiated the discussion of a sleepover, rather than Mr Ewing initiating that discussion. The conduct alleged in this Particular is not proven.

Mr Ewing put his hands on Student 1's shoulders and played with her hair.

'Whenever I sat on his lap, he'd always put his hand on my shoulder'.[96]

'I just remember him putting his hand on like my head and then sort of just like flicking my ponytail around because I had my hair up in a ponytail. And he was sort of just like flicking it around and playing with it'.[97]

'Q: ...would there have been any times where you played with children's hair, flicked their ponytails?

We prefer Student 2's account of Mr Ewing flicking her hair and touching her shoulders, as it is clear and specific. Mr Ewing's denial is somewhat equivocal. The conduct alleged in this Particular is proven.

Interview with Reportable Conduct Investigator, 2021:

'[Student 2] said Jason ..."he liked grabbing my hands a lot"'. [100]

We accept Student 2's evidence of Mr Ewing 'grabbing' her hand and take into account that it is corroborated by evidence of a report she made to her high school counsellor. We have no account from Mr Ewing concerning whether he held Student 2's hand. The conduct alleged in this Particular is proven.

Interview with Reportable Conduct Investigator, 2021:

'...he'd like, get me to sit on his lap...Sometimes he'd like, pat his knees as in like, "Come sit on lap"..."'.[101]

'...there were heaps of times where he sat me on his lap. Like I cannot name just a single one'.[102]

'And there were times where he'd sit me on his lap and get me to face him, with my body facing him... I remember like very vividly that it did occur more than one time'.[103]

'I never offered or wanted or asked to sit on his lap'.[104]

'[Student 2] said Jason picked them up and sat them on his lap'.[105]

'I never let kids sit on my lap in any way shape or form'.[106]

Student 2's account of sitting on Mr Ewing's lap and being bounced on his knee (see Particular 5.7(l) below) was consistent and repeated in interviews of Student 2 with both the reportable conduct investigator and with Ahpra. For this reason, we prefer her evidence to Mr Ewing's denials. The conduct alleged in this Particular is proven.

'But he'd sit me on his knee and then he'd bounce his knee'.[107]

'...there was a time where he was like showing me a concert video on his phone and I'd be sitting on his knee, and he was bouncing his knee and he had one arm wrapped around my waist'.[108]

'...he would always bounce it up and down whenever I was on his lap'.[109]

'Q: You wouldn't bounce children up and down on your leg?

For the same reasons identified for Particular 5.7(k) above, the conduct alleged in this Particular is proven.

'He'd pick me up sometimes, like we'd go to the playground, and he'd pick me up underneath the arms to go help me onto like the playground or something'.[111]

Student 2's evidence of Mr Ewing picking her up under the shoulders is clear and uncontradicted. The facts in this Particular are proven.

'...he'd always put his hand on my shoulder or on my waist or on like my upper thigh... , I don't even remember how it happened, but all I can remember is sitting on his lap and his hand being there on me, on my thigh. It wasn't on my inner thigh. It was on my outer upper thigh...It was onto my skin'.[112]

Student 2's evidence of Mr Ewing putting his hand on her thighs is clear and uncontradicted. The facts in this Particular are proven.

Mr Ewing wrapped his arms around Student 1's waist.

'But he'd sit me on his knee and then he'd bounce his knee and then he put like his hands like on sort of like my upper thigh and like wrap his arms around my waist and all that sort of stuff... he picked me up and sort of like, as I said, held me sort of like a child, like with one arm sort of around my waist'.[113]

The evidence of Mr Ewing wrapping his hand around Student 2's waist is connected to the conduct in Particular 5.7(l) and the account of Student 2 is clear and uncontradicted. The facts in this Particular are proven.

Mr Ewing had approximately two group sessions with Student 1 and another student as they were 'frenemies' and he was assisting them with their friendship issues. During one of the group sessions with Student 1 and her friend, Student 1 and her friend found blankets in the music room and covered themselves with them. Mr Ewing told Student 1 and her friend that it would be funny if they kissed under the blankets.

'...there was this one time where it was me and Jason and [Other Student] in the room, just three of us, and we got these like blankets out of a closet. And like me and [Other Student] went under the blanket together. Now we were like seven at the time. So we had no idea what was going on. We put the blankets over our head, and then Jason started making remarks like, it'd be really funny if you two kissed. And like, you guys would be like really cute, like just give it a shot and that sort of stuff, sort of just encouraging us to kiss each other'.[114]

'And what happened was, I remember I was sitting on the floor. Jason was sitting in a chair. And he was facing us. And we went through the closets. He didn't. But we did. We went through the closets and we found this blanket, and I wrapped myself up in the blanket. And then Jason grabbed it and put it over both of our heads. So it was just us two underneath the blanket. He couldn't see anything. And we started giggling and stuff because we didn't know what was going on. We just thought it was really funny. And he suggested that it'd be really, really like funny and hilarious and all that sort of crap if we'd kiss, if we were to kiss. So from memory, I don't think that I did kiss her. But I do remember him suggesting it... it was something along the lines of, it'd be really funny if you two kissed. It was pretty much that. It probably wasn't that exact wording, but it was pretty much that...That's all I can remember... we sort of just looked at each other and we gave each other this really funny look. We were sort of like, I don't remember what I was thinking, but we gave each other this look. And I know that she was about as uncomfortable as I was, which was very, very uncomfortable'.[115]

'Q: Did you ever say words to the effect of, or did you ever suggest to [Student 2] and [her friend] that they kiss in front of you whilst underneath a blanket?

A: I've never heard this before. No, of course not... I totally and completely deny that; that's ridiculous. No'.[116]

'Q: You do not recall an incident with [Student 2] and [Other Student] involving a blanket and asking, suggesting that they kiss each other.

'I have already spoken about the allegation that I encouraged the girls to kiss under a blanket. I maintain in the strongest way that this never happened. Where did the blanket come from? We were in a music room that had a large table in the centre, a whiteboard, and a cupboard filled with various musical instruments. My play therapy equipment consisted of a toy box full of toys and games. There was no blanket in the room or any way for me to get one. I believe that this is a confused memory or imagination of [Student 2].'[118]

We acknowledge that Mr Ewing has vehemently denied asking Student 2 and her friend to kiss while under a blanket and that the events described seem very unusual. We also note that the second student involved has not participated in Ahpra's investigation or the referral. However, Student 2's account is very specific and it was disclosed notwithstanding her apparent shame and embarrassment about the events. This makes her account compelling. She also described being under the blanket with another student during counselling in her first interview with the reportable conduct investigator, which is consistent with the account given to Ahpra. While she did not mention the allegation that Mr Ewing asked her and the other student to kiss in this first interview, the inconsistencies are explicable, as a young person remembering further detail later. The allegation is also plausible in the context of the other proven conduct. We find the facts alleged in these Particulars proven.

Mr Ewing greeted Student 1 for her counselling sessions by giving her a tight hug and when he walked her back to class, he would end the session by giving her a tight hug.

'... giving me really like tight hugs as well, like really, really tight hugs. Like whenever we'd see each other or like we'd finish like a session, we'd give each other like a really, really tight hug... Whenever we finished our sessions and he'd bring me back to class, before I walked, now he always made sure to do this when nobody was around. Before I walked back into the classroom when it was just me and him in the hallway like outside of the classrooms, he would sort of like squat down to get to my height, and then he'd open his arms up... He wouldn't say anything either. He'd sort of just squat down, open his arms out wide, and I'd run up to him and give him a big hug because obviously, well, I felt like I had a connection with him and I felt like I appreciated, and I, this is the bit, like it's a little bit off topic, but I feel like I felt like that because at that point in time I was going through like an incredibly like rough like bullying situation, and he was the only person who I sort of felt like he was like my only friend. But yeah. Anyways, just back to the hugs. It was, he'd open his arms up really wide and then I'd run up to him and hug him, and my head would be over his shoulder. So, and then we'd wrap our arms around each other. He'd squeeze me really tight and then he'd go off and take another kid for counselling'.[119]

'I've had, I've had children try to hug me, and that's what kids that age sometimes do. I've never initiated a hug with a child. And the hugs that I can recall children giving me were side hugs maybe at the end of a session... I don't think that happened with either of [Student 1 or Student 2]'.[120]

Mr Ewing does not deny hugging students, though he describes it occurring in a different way and he denies hugging Student 2. However, in view of the specificity of Student 2's account, we prefer her evidence to that of Mr Ewing. The facts alleged in this Particular are proven.

1. As in the case of Allegation 4, there is no expert material in the Tribunal Book to assist the Tribunal to determine if the proven conduct is inappropriate and/or sexualised. We have therefore, again, relied on our common sense and the skill and experience of the health practitioner members, who are psychologists, in considering whether we are comfortably satisfied that the proven conduct is inappropriate and/or sexualised as alleged in the headline to Allegation 5. Our conclusions are as follows.
2. We are not persuaded that the conduct in Particular 5.7(d) should be classified as inappropriate or sexualised, either on its own or as part of a course of conduct. There is evidence that Student 2's mother specifically asked Mr Ewing to discuss the topic of pornography in counselling, because of her discoveries of Student 2's internet browsing history.
3. We are comfortably satisfied that the following conduct of Mr Ewing was inappropriate, both when each instance is considered in isolation and when it is considered as part of a course of conduct. The conduct was inappropriate because it involved unnecessarily personal conduct, breaches of professional boundaries and because it was prone to create the wrong impression with Student 2 about the nature of her relationship with him:
   1. Showing videos of himself at a heavy metal concert.
   2. Giving Student 2 a painting by his father.
   3. Throwing water balloons at Student 2.
   4. Putting his hands on Student 2's shoulders and playing with Student 2's hair.
   5. Holding Student 2's hand.
   6. Allowing Student 2 to sit on his lap.
   7. Picking Student 2 up under her shoulders.
4. We also regard Mr Ewing's conduct in showing the 'Stickdeath' video game to Student 2 to be inappropriate, both on its own and when considered together with the conduct in paragraph 154 above. While we have not viewed the video and Mr Ewing describes the content as 'child friendly', the evidence of the high school counsellor, who did watch the videos, is that the content was inappropriate. We also take into account that Student 2 was subjectively disturbed by what she watched.
5. We regard the conduct involving Mr Ewing giving Student 2 a diary in which he had done a drawing, when considered together with the conduct referred to in paragraph 154, to be inappropriate. While the provision of the diary on its own may have been appropriate, the personal message and drawing, alongside the other events, give it a different connotation.
6. We are comfortably satisfied that the conduct involving Mr Ewing touching Student 2's thighs, wrapping his arm around Student 2's waist and bouncing Student 2 up and down on his knee is sexualised, when it is considered cumulatively. This is because of the areas of Student 2's body that Mr Ewing touched during counselling. The conduct cannot be explained as therapeutic or accidental.[121]
7. In relation to Mr Ewing asking Student 2 to kiss her friend, whilst under a blanket, we consider this conduct to be sexualised. This is because of the subject matter of the request and the circumstances in which it occurred, which were in a counselling session where Mr Ewing, an adult, was speaking to children, and was in a position of authority.
8. The Board alleges that Mr Ewing's conduct was inconsistent with General Principle C and Ethical Standards C.1.1 and C.1.2 of the Australian Psychological Society Code of Ethics, 2007. These are the same standards referenced in Allegation 4 above. We agree that, by engaging in the proven inappropriate and sexualised conduct, Mr Ewing has behaved in a manner inconsistent with these standards.

1. On the basis of these conclusions, we are comfortably satisfied Allegation 5 is proven, save with respect to Particulars 5.7(a), (d) and (h).

1. In section 5 of the National Law, professional misconduct is relevantly defined to include:
   1. unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience (paragraph (a) of the definition); and
   2. conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession (paragraph (c) of the definition).
2. The Board seeks separate findings for each allegation. In relation to the proven allegations, it was submitted that the conduct should be characterised as follows:
   1. Allegations 2 and 3 are professional misconduct under paragraph (a) of the definition in section 5 of the National Law; and
   2. Allegations 4 and 5 are professional misconduct under paragraph (c) of the definition in section 5 of the National Law.
3. The Board's rationale for characterisation of Allegations 2 and 3 as instances of professional misconduct was that:
   1. Mr Ewing never notified the Board of the criminal charge, as opposed to merely being delayed in doing so;
   2. it is fundamental to the effective operation of the registration, and public confidence in that system, that practitioners comply with their obligation to report criminal charges, particularly a charge of such gravity as the possession of CAM; and
   3. the Tribunal has found such conduct to be professional misconduct or unprofessional conduct in other cases.[122]
4. We agree that Mr Ewing's non-disclosure (Allegation 2) and false and/or misleading representation on renewal of registration (Allegation 3) had the capacity to undermine the proper operation of the registration system. The Board relies on criminal matters being brought to its attention in order to consider whether to take action, where required, to ensure protection of the public. . This includes, for example, taking immediate action with respect to a practitioner's registration, where it is in the public interest.[123]
5. Fortunately, Mr Ewing was not working with children at the time the charge was laid (in 2020), having left his employment following the workplace investigation (in 2018). However, Mr Ewing's inaction and subsequent misrepresentation had the potential to deprive the public of regulatory protection. In this regard, it was grave.
6. A further consideration is Mr Ewing's prior disclosure to the Board. Specifically, in 2017, Mr Ewing disclosed to the Board, as part of the re-registration process, that he was the subject of a police investigation, at a time prior to him being charged with any criminal offence (see paragraph 8 above). This demonstrates that he was familiar with the need for transparency with the Board. It must have occurred to him in 2020 that the Board had an interest in knowing that there was a further criminal matter before the courts.
7. Finally, as we have explained above at paragraphs 82 and 90, the conduct the subject of Allegations 2 and 3 is inconsistent with published professional standards for psychologists and, as such, it is not what is considered to be ethical professional con[124]t for a psychologist.124
8. For these reasons, we find that Allegations 2 and 3 are each professional misconduct, being conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience to Mr Ewing.
9. As to Allegations 4 and 5, the Board submits that findings of professional misconduct under paragraph (c) of the definition are justified:
   1. the clients were young and vulnerable;
   2. the touching and other breaches of boundaries were persistent and continued over time;
   3. the children, now older, have reflected on the conduct towards them with understandable concern that they were 'groomed' by a person that they were encouraged to trust, and that every single time they were around the respondent they 'got [a] weird feeling' and 'felt really off';
   4. the conduct occurred at two different schools, with two different clients, and occurred cumulatively over a period of some four years;
   5. the conduct was inconsistent with the Australian Psychological Society Code of Ethics, 2007; and
   6. the conduct strikes at the heart of the ability of the public to trust children to the care and treatment of persons registered in the psychology profession.
10. We readily accept these submissions.
11. The proven conduct has completely undermined Mr Ewing's therapeutic relationships with Student 1 and Student 2 and the evidence before us shows it negatively affected them. They were extremely vulnerable not just because of their age, but also because of the issues that led to them being referred for counselling in the first place. Mr Ewing has exploited their vulnerability.
12. The conduct, compromising the safety and wellbeing of children, is inconsistent with holding professional registration as a psychologist. We therefore find that the proven conduct the subject of Allegations 4 and 5 is professional misconduct within the meaning of paragraph (c) of the definition in the National Law.

1. The Board submits that the Tribunal should under section 196 of the National Law:
   1. Reprimand Mr Ewing;
   2. Cancel his registration.
   3. Disqualify him from applying for re-registration for a period of 20 years.
   4. Prohibit Mr Ewing from providing any health service unless and until re-registered under the National Law.
2. The Board's submissions were made on the basis that all five of the allegations contained in the notice were proven. At the hearing, we specifically queried how the submission regarding determinations would be affected if Allegation 1 was not proven, as this was a live issue. Counsel for the Board acknowledged that the period of disqualification would necessarily be shorter but made no further submissions.

1. The Board's submissions as to the applicable law had three components: the purposes of determinations, the factors to be considered by the Tribunal in its protective focus and the considerations relevant to the imposition of a prohibition order.

1. In reliance on Medical Board of Australia v Zhao[125] the Board identified the purposes of determinations as follows:
   1. The two primary objectives are to protect the public and to maintain the professional standards of the profession in the eyes of the public.
   2. Additional purposes may include:
      1. protection against further misconduct by the practitioner, by regulating their performance;
      2. facilitating rehabilitation of the practitioner; preventing persons who are unfit to practise from practising as [registered health] practitioners;
      3. general deterrence of other practitioners from similar conduct;[126]
      4. maintaining proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession; and
      5. maintaining public confidence in the profession, including an appropriate acknowledgment and condemnation of misconduct.

1. Having regard to the comments of the Tribunal in Medical Board of Australia v Griffiths,[127] the Board indicated the following factors are relevant to its protective focus in imposing determinations:
   1. The nature and seriousness of the conduct.
   2. Whether the practitioner pleaded guilty or other evidence of contrition or remorse.
   3. Whether there is a need for specific deterrence (deterring the particular practitioner from further inappropriate conduct) or general deterrence (deterring other practitioners from engaging in similar conduct).
   4. Whether there have been other disciplinary findings before or since the conduct in question.
   5. Evidence of character.
   6. Evidence of rehabilitation.
   7. Any delay from the time the investigation started to the end of the Tribunal hearing.
   8. Other mitigating factors such as medical or psychological evidence, family or other personal circumstances.

1. The Board submitted that a prohibition order can be imposed in addition to a period of disqualification,[128] either on a permanent basis or for a stated period. The purpose of such an order is to protect the public.[129]

1. We accept the Board's submissions as to the considerations relevant to determinations. We would add, as recently stated by Vice President Tran, the 'prime objectives' of determinations are also reflected in the guiding principles in section 3A of the National Law:

The main guiding principle of the national registration and accreditation scheme is that the following are paramount -

(a) protection of the public;

(b) public confidence in the safety of services provided by registered health practitioners and students.[130]

1. With these principles in mind, the reasons for our decision regarding determinations are as follows.

1. We have reprimanded Mr Ewing because of the objective seriousness of the proven conduct. The Tribunal condemns Mr Ewing's false declaration to the Board, his failure to notify the Board of his criminal charge and, most significantly, the nature and extent of his conduct involving Student 1 and Student 2.

1. We have cancelled Mr Ewing's registration, in order to protect the public and to give effect to general deterrence.
2. In this case, the Tribunal has concluded that protection of the public is required by cancellation of registration as:
   1. The conduct has affected the health and wellbeing of clients.
   2. There is no evidence from Mr Ewing as to his acquisition of insight and present capacity to practise.
   3. We have no confidence that the proven conduct would not be repeated.
3. It is also important that psychologists understand that conduct of the kind engaged in will result in removal from the profession.

1. The Board has sought an extremely lengthy period of disqualification. When we queried how the period of 20 years was arrived at, the Board advised that:
   1. they have been unable to identify any directly comparable cases;
   2. this case is unusual because of the combination of possession of CAM material, the breach of boundaries with two child clients, and the failure to disclose a criminal charge and making a false declaration to the Board; and
   3. this case is in a small category of cases where it is appropriate to impose a determination that makes it clear to the practitioner that their career in the profession is over.[131]
2. Mr Ewing's conduct is of the utmost seriousness, because of its effect on his clients and because of its capacity to undermine public confidence in the profession of psychology. Mr Ewing breached the trust reposed in him by his clients, their parents and the school communities where he worked.
3. Having found Allegation 1 is not proven, we considered whether there were any comparable cases involving conduct that is similar to the most serious of the remaining allegations in this case, being the inappropriate and/or sexualised behaviour by a psychologist with clients who are children. While there are cases involving boundary transgressions with adults, we have not been able to identify any previous decisions involving children to guide us in our consideration of determinations, including an appropriate period of disqualification.
4. We have taken into account the troubling evidence of Mr Ewing's views to investigators about child safety, insofar as they give us a glimpse at his insight. When interviewed by Ahpra, he suggested that his conduct had been put 'under the magnifying glass', because of 'almost hysteria' and a 'culture of anxiety'[132] generated by the Royal Commission into Institutional Responses to Child Sexual Abuse. It is of some concern to us that a registered psychologist working with children professes to be a casualty of this Royal Commission, with no appreciation of the major cultural and regulatory shift that the Royal Commission found was required in all school sectors. We would expect a health professional in his position to be more respectful of changes which prioritise a culture of safety in schools and other institutions.
5. We have decided to disqualify Mr Ewing from obtaining registration for a period of eight years. This is intended to:
   1. give effect to general deterrence;
   2. ensure protection of the public; and
   3. maintain public confidence, and professional standards, in the profession.
6. The period arrived at is less than the 20 years sought by the Board because:
   1. We recognise that Mr Ewing's registration has been suspended since 13 October 2021, a period of just under four and a half years.
   2. We have not found the allegation of possessing CAM proven.
   3. We have formed the view that a lengthier period of disqualification would be disproportionate to the proven conduct.
   4. There are no criminal convictions.
   5. To impose a period of more than eight years - which results in an aggregate period of over 12 years out of practice since Mr Ewing's registration was suspended - would be punitive, rather than protective.
   6. While the conduct is very serious, we can conceive of more serious misconduct that might occur involving children that is sexualised in nature, that would justify a lengthier period of disqualification.
7. We have not fixed the period of disqualification in order to 'send a message' to Mr Ewing that his career in the profession is over, as was submitted by the Board. This is because of the changes to the Health Practitioner Regulation National Law (Victoria) Act (2009) (Vic) that will commence shortly in Victoria. Those changes have the effect that, if Mr Ewing seeks to be re-registered, he will need to apply to VCAT for a reinstatement order and, in doing so, persuade the Tribunal that:
   1. he is a fit and proper person to hold registration in the health profession; and
   2. he is able to practise the health profession competently and safely.[133]

1. We agree that a prohibition order is appropriate, in view of the potential for a person with Mr Ewing's qualifications to use their skills to provide services, such as counselling, for which registration is not required.
2. On the basis of the Board's supplementary submission of 6 March 2026, we accept that it is open to have the prohibition operable unless and until Mr Ewing is re-registered by a National Board, being a defined event (rather than it remaining operable until a particular date or until expiration of a period of time).[134]
3. We carefully considered whether the order should be limited to a prohibition on providing health services to children, rather than to clients at large. However, on balance, we think that the risk to the public includes vulnerable persons of any age because of the exploitative nature of Mr Ewing's proven conduct when in a private setting.
4. We have therefore made the prohibition order but have included the words 'including counselling' to make it abundantly clear to Mr Ewing that the prohibition extends to health services of this kind.

1. The Board has, in its submission of 6 March 2026, after the hearing, applied for the costs of the proceeding, in the event that it is successful in proving some or all of the allegations.
2. To afford natural justice to Mr Ewing, we have made orders providing him with an opportunity to provide a submission on this issue.
3. We will then determine whether to decide the application for costs at a further oral hearing, or on the papers.

[1] Medical Board of Australia v Alkazali (Review and Regulation) [2017] VCAT 39.

[2] See Re Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247 at 256.

[5] The Tribunal understands this to be a reference to the Child Exploitation Tracking system scale (CETS) used in the Australian National Victim Image Library (ANVIL).

[13] Jury Directions Act 2015 (Vic), s 64.

[14] Civil Juries Charge Book, Judicial College of Victoria, 9 May 2013, [39].

[17] [2017] VSCA 88, at [101].

[18] For example, Paramedicine Board of Australia v Clark (Review and Regulation) [2023] VCAT 1192, at [36].

[19] Nursing and Midwifery Board of Australia v Sundstrom (Review and Regulation) [2025] VCAT 365 at [62]-[63], citing Re Day [2017] HCA 2.

[20] See, e.g., R v Camilleri [1999] VSC 159; R v Sadler [2008] VSCA 198; (2008) 20 VR 69.

[21] See Hughes v The Queen [2017] HCA 20.

[22] See Medical Board of Australia v Lee (Review and Regulation) [2019] VCAT 2036.

[24] Under the Criminal Procedure Act 2009 (Vic), personal service was required because the charge was indictable - either on Mr Ewing or a person over the age of 16 years at his usual place of address, unless a legal practitioner had been authorised to accept service on his behalf: see Criminal Procedure Act 2009 (Vic) ss 16 and 391.

[25] Criminal Procedure Act 2009 (Vic), s 16.

[26] This standard requires that psychologists continuously monitor their professional functioning and refers to measures they are expected to take if impaired.

[27] A first mention date is the initial court listing after a charge-sheet is filed in the Magistrates' Court.

[29] It is evident in the Tribunal Book that the records of sessions between 3 February 2017 and 19 May 2017 were entered after Mr Ewing was stood down from his employment. Tribunal Book pp 739 to 781 contains the electronic records having an audit date that states when they were 'last modified' by 'Ewing, Jason'. Mr Ewing also admits to the workplace investigator that he entered some records after he was stood down, and he threw his original handwritten notes away after he entered them: see Tribunal Book p 581.

[30] This person is variously described in the material as the 'Vice' Principal and the 'Assistant' Principal, but the name attributed is always the same name. We will refer to the person as the 'Vice Principal' in these reasons.

[31] 'Interpose' is a specialised information management system used by Victoria Police for recording, among other things, investigation information.

[32] See, for example, Tribunal Book pp 55 and 62.

[36] Ibid, p 728, Board's Submissions, page 12.

[37] This is on the basis that the note appears to reflect what the witness told another police member, which is then recorded by another police member in a database.

[51] This document is described in the index to the Key Documents Tribunal Book as 'Practitioner's information on therapy and clinical work with children'. It is described differently where it appears as an annexure to the Workplace Investigation Report, at pp 511-513.

[54] The notes were provided to the workplace investigator by email from the School Principal. We note that the sworn statement of the Teaching Staff Member describes the content of the note as it appears in the workplace investigation report as an accurate representation of her conversation with the Vice Principal, who is a different person. However, the workplace investigator says that the Vice Principal has been unable to locate the notes she took. We therefore assume the note is that of the Principal and not the Vice Principal.

[62] In the table below, the footnote numbering is not chronological - this is due to Microsoft Word reading footnote numbering left to right across columns, despite columns stretching multiple pages in some instances. The Tribunal has not been able to find a fix for this.