1. It should be noted, that in relation to all these allegations, as with allegations relating to other female students, statements were made both to the notifier in or around 2015 and to the respondent which was signed on 30 October 2017. In the 2015 statement, FM1 stated:

I received a drunken text from Michael Montalto, which stated 'if I told you I have a bisexual girlfriend what would you say?' and I asked him what he was meaning by that, and he replied 'if I have a girlfriend who would find someone like you attractive, what would you think about that?'

The conversation continued, with my bemusement, he stated that him and his girlfriend had an alternative relationship, where they slept with other females, and he is very interested in involving me in this, and I wasn't comfortable with the idea which I made clear to him.

Michael proceeded to call my mobile numerous times whilst I was on the train home with my two friends, pleading I come back to the city and meet up with him and his girlfriend, to meet up and get drunk with them, which I repeatedly declined ...

1. In the statement made to the Australian Health Practitioner Regulation Agency (AHPRA), FM1 suggested that the respondent was drunk because the message contained a 'noticeable amount of typographical errors'.
2. The respondent in his evidence said that he had 'no memory' of repeatedly texting or telephoning FM1 ... he also said that he did not drink with the intention to 'get drunk'.
3. Looking at the body of the evidence as a whole and in particular the way FM1 gave her evidence as opposed to the way the respondent gave his evidence, we have no doubt in reaching a comfortable level of satisfaction in finding, that the particular (iv)(A) did in fact occur. FM1's evidence was basically consistent throughout as we have already stated. The fact that FM1 was unable to produce these text messages on her phone, in our view did not detract greatly from her evidence. Considering the circumstances and a later allegation that the respondent removed text messages from her phone, we do not find that there is anything inconsistent about not producing the actual text messages that were sent. (In our view this particular to the allegation is made out.)

(B) telephoning FM1 unrelated to the respondent's role as her lecturer and/or tutor

1. FM1 alleged in her statement that the respondent 'telephone[d] me "numerous" times, after I had made it clear to him that I was not comfortable with his suggestion'. She said that he telephoned her on three or four occasions. She said when she answered the telephone, the respondent sounded intoxicated and that he was slurring his speech and speaking very loudly. She said that in these telephone calls the respondent asked her to meet and get drunk with him and his girlfriend.
2. The respondent said that he had no memory of repeatedly telephoning FM1 and that he did not drink with the intention to 'get drunk'.
3. As with the previous allegation, we have formed the view that FM1's evidence in relation to this matter, was consistent and 'stood up' in cross-examination. On the other hand, we were unimpressed with the way the respondent gave his evidence in saying that he had no memory of making the relevant telephone calls. Given these circumstances, we accept what FM1 stated and find that the telephone calls did take place in the way stated by FM1 as alleged in allegation 1(iv)(B). We find such to a comfortable level of satisfaction.

(C) it is an allegation that the respondent on various occasions, at his request met with FM1 in a social setting to drink alcohol

1. It is alleged, that on various occasions the respondent met and/or requested to meet with FM1 in a social setting to drink alcohol. FM1 stated that:

Mr Montalto would regularly ask me to meet him at the Lion Hotel in Melbourne Central. To the best of my recollection, he would ask me once every week, though I often refused and made excuses such as that my parents were expecting me home. I do not drink alcohol ... and did not want to drink alcohol with Mr Montalto. To the best of my recollection, I agreed to meet him on three occasions. I felt obliged to do so for the reasons set out in [16] and [17] above.

1. In paragraph 16 and 17 of FM1's witness statement, she made the point that the respondent was both her lecturer and tutor and that she understood he was responsible for her grades in the subject. He told her that she had been allocated a different tutorial in Ethics however he had changed her allocation to his tutorial. He further threatened that he would fail her if she did not agree to his requests and she understood this to be a genuine possibility. She felt extremely anxious about this matter and about the prospect of having Mr Montalto lecture her again.
2. The respondent said that he only ever suggested to meet FM1 for coffee and he never suggested to have alcohol with her whatsoever. The respondent said that this allegation is an absolute lie. He stated he would not say something so insidious and noted that it would have jeopardised his employment at the time.
3. Again as with the previous allegations, we accept the version given by FM1 for the reasons we have given. We are comfortably satisfied that her version of events are in fact correct.

(D) requesting FM1 to engage with the respondent in sexually explicit correspondence about another student

1. At paragraphs 13 and 14 of FM1's written statement she stated as follows:

Mr Montalto commenced asking me inappropriate questions about another student in our Ethics class, [FM5]. This commenced a few weeks after he initiated inappropriate text messages referred to in [12] above ... Mr Montalto 'fancied' [FM5]. He was very open about this, and would ask me a lot of questions about [FM5], such as 'does she have a boyfriend?' and 'do you think she's pretty?'. ... Mr Montalto repeatedly told me to ask [FM5] whether she would participate in sexual activities with him and his partner. I refused to do so.

Mr Montalto's fixation with [FM5] continued and, and on one occasion he demanded that I write a sexually explicit fantasy 'story' involving him, [FM5] and me. I eventually sent him the 'story' via text message. He sent a very crass, sexually explicit response to the effect of 'wow that almost made me cum, that was so hot'.

1. The respondent stated that the allegation is absurd. He said that the tertiary college had

a subset of students engaged in circulating inappropriate memes, messages and 'prank' material about staff and each other from time to time. There was a tendency for things to circulate and gain momentum, with one person seeking to outdo the other, which could become a problem as rumours spread and things could go too far. ... I do not know [FM1] to have been one of those students, I never asked any student to draft any form of story involving me and am not aware of any such publication, if it exists.

1. We did not find Mr Montalto convincing in his explanation outlined above. As with the other allegations, we did not find Mr Montalto a convincing witness. On the other hand FM1 was convincing and was consistent, therefore we accept her version of the facts and find this particular proved, to a comfortable level of satisfaction.

(E) requested that FM1 send an email to the year coordinator, a Senior Lecturer at the tertiary college, commending Mr Montalto's lecturing

1. At paragraph 18 of FM1's witness statement, she stated:

Another of Mr Montalto's requests was that I send an email to [the year coordinator], ... a senior lecturer at [the tertiary college], commending Mr Montalto's lecturing. ... Mr Montalto demanded that I provide him a draft of the email before I sent it to [the year coordinator]. He made amendments to the email before I sent it. Mr Montalto had previously told me that he felt that [the year coordinator] did not 'like' him, and I believe that Mr Montalto asked me to send the email in an attempt to bolster [the year coordinator]'s opinion of him. Mr Montalto had mentioned to me that he wanted to keep his job at [the tertiary college] until he commenced practising as a psychologist.

1. The text of the email is annexed to FM1's witness statement.
2. Mr Montalto says that this allegation is absurd and again puts the matter down to things circulating and gaining momentum around the tertiary college.
3. As with the other allegations, we accept the version given by FM1 and reject the evidence of Mr Montalto. We have no reason to think that the annexure setting out the document that was sent to the year coordinator by FM1 is anything but accurate and it would be incredible to think a student would send such an email of her own volition. Given these findings, as with other matters and for the same reason stated above, we accept the evidence of FM1 to our comfortable level of satisfaction.

_(F) various comments made by the respondent to FM1 to the effect of 'see how much trust you have in me'; and 'see how easily I can make you do what I want to'

(G) request for FM1 to delete all text messages and voice call history in relation to the respondent from her mobile phone_

1. In paragraphs 19 and 20 of her statement, FM1 states:

on one occasion, Mr Montalto told me to delete all of my text messages from him, and that he watched as I did so. I wish to clarify that this took place on two to three separate occasions. Mr Montalto would typically pull me aside at university, in front of other students, by saying '[FM1], could I speak with you for a moment?' or words to that effect. He would then ask me to follow him into an empty classroom and demand that I show him my mobile phone and delete all of our text message history and call logs before he would allow me to leave the room. Mr Montalto also insisted that I save his contact details under an alias. The alias was a female name, which I believe was 'Michaela'.

... after deleting the messages on one occasion, Mr Montalto made comments to the effect of 'see how much trust you have in me' and 'see how easily I can make you do what I want to'. He often made comments about trust, or asked me to do things to 'demonstrate [my] trust towards [him]'. ... Mr Montalto told me that one of his former students had previously tried to 'get him into trouble' in relation to his conduct, and that he would 'hate [me] forever' if I ever did the same.

1. Mr Montalto denied that he made a request for the text messages to be deleted from FM1's phone and stated in relation to the idea of expressing control over someone to be 'abhorrent to me'. He said he would not say the same, let alone exploit a real or perceived power imbalance.
2. We did not find Mr Montalto's statements convincing in relation to these two allegations. It would seem to us that the whole tenor of the evidence that was presented against Mr Montalto showed that he was in fact trying to exploit a power imbalance that existed between himself and the students. The way Mr Montalto gave his evidence, did not give us any reason to doubt that proposition.
3. For the reasons which we have stated above in relation to the evidence that has been given, we accept the evidence of FM1 and reject the evidence of Mr Montalto and as a consequence find that these two particulars to the allegation made out to a comfortable level of satisfaction.

_(H) - (J) request that FM1 send intimate and/or sexual photographs to the respondent via text message

sent FM1 a partially clothed photograph of himself via text message

invited FM1 to his office at the RMIT, where he: (I) placed his right hand on her thigh, (II) kissed her face and/or neck; and (III) made sexually suggestive comments to FM1 including by way of asking her to take her top off and stating words to the effect of 'I want to bend you over and fuck you on Michael's desk'_

1. The respondent offered to lend FM1 a textbook, and as a result invited her to his office at the RMIT. While FM1 was in the respondent's office she states what happened in [29ff] of her statement:

as soon as we arrived at Mr Montalto's office, he unlocked the bottom drawer of his filing cabinet, which was filled with bottles of wine. He opened one of the bottles and poured himself a glass of wine. He offered me some wine but I declined. I asked Mr Montalto where the book was and [he] walked over to the bookcase to look for it.

At this point, Mr Montalto informed me that he had to run an online tutorial ... Mr Montalto told me to stay with him while he ran the tutorial, telling me that he would usually 'sit there and drink' while he ran his online classes. He told me to sit down on the chair next to him.

Students did not log in to the online tutorial, so Mr Montalto did not run the class. I repeatedly asked where the book was, but he would not tell me, and continued sitting at the desk drinking wine. ... he then started to behave inappropriately by placing his right hand at the very top of my left thigh, as well as telling me to 'take [my] top off'. I started feeling quite anxious and unsure of how to remove myself from the situation. ... I had the sense that Mr Montalto could be short tempered and I knew from my own experiences with him that he could be quite controlling. I was unsure of how he would react if I tried to leave and I was conscious of the fact that no one else was around.

... Mr Montalto moved towards me and began kissing my neck and face while continuing to rest his hand on my thigh. ... Mr Montalto told me that the desk next to his belonged to Michael, a guest lecturer who had taught the Ethics class at [the tertiary college] the previous week. ... Mr Montalto made crass comments such as 'I want to bend you over and fuck you on Michael's desk' and 'I know you want me to fuck you'.

... Mr Montalto was beginning to slur his words and appeared to be intoxicated. ... I remained sitting next to Mr Montalto while he was making these sexual advances towards me, though I did not face him and repeatedly pushed his hands away. ... I remained still and attempted to disengage from what was happening. I felt as though the best thing to do would be to wait until it was over.

At approximately 8.00pm, Mr Montalto ushered me out of the office. I do not know why he had suddenly decided it was time to leave. He showed me the way out, and grabbed and held my hand in the elevator on the way back to the ground floor. He then walked me to Melbourne Central station and kissed me on the cheek to say goodbye.

When Mr Montalto asked me to remove my top ..., I refused. ... Mr Montalto had then asked me to agree to send him explicit photographs when I got home, to 'demonstrate my trust towards him'. When we said goodbye at Melbourne Central station, he told me that I had some 'things' to send him when I got home.

It was approximately 9.30pm by the time I arrived home. I received a text message from Mr Montalto at approximately the same time which said 'you've got some things to send me', referring to the photographs he had asked for. To the best of my recollection, Mr Montalto sent me multiple text messages that evening pleading me to send him photographs. I ultimately sent him an intimate photograph of my upper body in order to appease him. I do not believe that my face was visible in the photograph. I am still very concerned that Mr Montalto may still have a copy of the image.

... at one stage Mr Montalto sent me a 'topless' photograph of himself via text message. I cannot recall what communication, if any, preceded this, though I do recall that he sent the photograph with a comment that I now had to 'send him something in return'. I understood this to be another request for an explicit photograph of me, though I did not send another photograph.

1. FM1 then exhibited the photograph sent by Mr Montalto to her.
2. The respondent says that the picture provided and exhibited to FM1's statement was a very old one and could have been obtained online. He further said that he had been informed that some students had been trying to find out about staff members, circulating photographs and other information. He then stated:

While I might have initially asked FM1 what is circulating or whether it was the only photograph my usual approach was not to buy into or appear worried by what students were doing. I thought it would be better to let them lose interest in whatever immature joke or issue of the day was, rather than fuelling the fire by addressing it in class or otherwise showing concern.

1. The respondent further denied the events that happened in his RMIT office, including blatantly soliciting intimate pictures of FM1. He stated that his office was an open office, where anyone could walk in or out. He said he did not have a designated desk. Further he stated, that his office was reached by an elevator without the use of stairs, which FM1 referred to, that is, going up some stairs and then in an elevator. He further said that the person referred to as 'Michael' was not in the same office as himself and in fact Michael had his own office. None of these matters were demonstrated in any way other than the respondent giving oral evidence of the same.
2. We do not find the respondent's explanation for the events relating to these particulars convincing. FM1 gave great detail in her evidence in relation to each of the matters relating to these particulars and she was not shaken in cross-examination in any way. Her story remained consistent. Given these circumstances, we accept the evidence of FM1 as opposed to the respondent in relation to the particulars of allegation 1 which we are dealing with here. We accept FM1's evidence to a comfortable level of satisfaction. Therefore, we find these particulars are made out.

(K) and (L) allegation that on 28 August 2014, the respondent kissed FM1 on the cheek; and requested her to go to an apartment with him and his girlfriend for the purposes of engaging in sexual activity

1. These two particulars of the allegation arose from the occasion of the end of trimester drinks. In paragraphs 45 to 47 of FM1's witness statement she states as follows:

Mr Montalto brought his partner, Sarah to the End of Trimester Drinks. I do not know Sarah's last name. I had not met Sarah previously, though Mr Montalto had showed me photographs of her. I had also heard her voice before as sometimes she could be heard in the background when Mr Montalto telephoned me.

... Mr Montalto and Sarah began telling me and some of the other students that he and Sarah had booked an apartment in the city to stay at after the drinks. He then said words to the effect that he 'wouldn't be opposed to people joining them'. I understood this to mean that he wanted the female students to participate in sexual activity with him and Sarah. In [a statement I made to the tertiary college] I stated that Sarah was 'getting friendly' with the female students. By this I mean that she was acting as though she had known us for a long time. Her behaviour struck me as unusual given that it was the first time she had met me or any of the other students.

Mr Montalto continued to appear increasingly intoxicated as the night went on. He repeatedly put his arm around students, including me. He also kissed my face (on the cheek) at one stage. I saw him do the same to other students, including [FM5]. When I left to go home, at approximately 11.00pm, Mr Montalto placed his arm around me again and requested again that I go to the apartment with him and Sarah. I refused and returned home.

1. The respondent denied that he was recruiting female students including FM1 to go back to the apartment to have sex with him and his partner. He said that he had an early lecture at 9am the following morning which would last until 11am. He denied that he was drunk and said that he was 'tipsy'. He said in relation to the alleged kiss it was no more than an 'air kiss'.
2. Although FM1 did not refer to the respondent as stating that the purpose of going back to his apartment on the evening of 28 August 2014 was for sexual activity, it is clear not only from her evidence but from evidence given by other students in this proceeding that this was the intended purpose for the invitation back to the respondent's apartment. It also seems clear, from the conduct described by FM1, that the respondent and his partner were working in tandem to achieve their object of having students to have sex with them in their apartment.
3. Given these circumstances, we find the particulars in relation to the evening of 28 August 2014 proved to a degree of a comfortable satisfaction.

(M) threatened to change FM1's subject grade if she did not engage with the respondent and/or comply with his requests to engage in sexual behaviour and/or communications with him.

1. We have largely dealt with this allegation elsewhere. However it is worth repeating, that at paragraph 17 of FM1's witness statement she stated:

Mr Montalto ultimately threatened that he would fail me if I did not agree to his requests, though I cannot recall the exact words that he used. I understood this to be a genuine possibility and that it was within his power to do so. I felt extremely anxious about the prospect of having to repeat the unit and risk having Mr Montalto as my lecturer again, and this was the predominant reason that I continued to communicate with Mr Montalto and generally did as he asked.

[FM1] was in a separate tutorial and I could have no influence over her marks, which limited the risk of any real or perceived conflict of interest. Examination marking was an anonymous process with students' examination papers identified to markers by student number only.

This allegation is an absolute lie. I would not even think of, or say something so insidious. It would also have jeopardised my employment and at the time I was very focussed on developing my sessional lecturing work.

1. As with the other particulars, we found FM1's evidence most convincing and was unimpressed by the evidence of the respondent. Further, both the conduct of FM1 and the respondent, is consistent with having such threats made. Whether or not the respondent had power to influence FM1's grades in our view is not to the point, the fact is that FM1 believed, because of his position as a lecturer and tutor at the tertiary college, he had such power. As she believed he had such power, she at times felt that she was bound to comply with his requests.
2. Given these circumstances, we find this particular to allegation 1 proved. In relation to allegation 1, in our view it is worth repeating what Ms Holmes of Counsel for the applicant commented in relation to the evidence. She correctly stated:

The witness (FM1) was cross-examined at some length and did not disavow any of her sworn evidence. Other than putting to the witness that his client denied the conduct alleged and eliciting responses that the witness disagreed with those propositions, the cross-examination did not seek to undermine in any way the witness's credibility nor her reliability. No motive to lie was put to the witness, nor was any reason that she may have been mistaken in her recollection of events.

The respondent's evidence simply consisted of a blanket denial of the conduct alleged against FM1. The respondent agreed that the proposition put in cross-examination that, for each and every one of the particulars of conduct alleged, the witness was either lying or mistaken.

1. Thus we find each and every one of the particulars in allegation 1 to be proved to a comfortable level of satisfaction.

1. As with allegation 1, it is not in dispute, that Mr Montalto was a provisionally registered psychologist and was employed as a sessional lecturer and/or tutor at the tertiary college.

Events of the evening of 18 August 2014 (Ethics drinks)

(iii)(A) made sexually suggestive statements to and/or asked sexually explicit questions to various students, including stating words to his student, FM2, to the effect of: (I) 'have you lost your virginity?'; (II) 'do you have a boyfriend?'; (III) 'which sexual positions do you like?'; and (IV) 'which girls in the class like me?'

Mr Montalto was 'trying to get know' the other students and me. While we were at the Lion Hotel, Mr Montalto commenced asking very personal and intimate questions of me and the other female students - such as 'have you lost your virginity', 'do you have a boyfriend' and 'which sexual positions do you like'. I recall feeling very uncomfortable and uneasy as a result of Mr Montalto's conduct. The primary reason I did not go home at this stage was because I wanted to look out for the other students. The other students knew that I tended to remain sober and would often ask me to stay out with them to stop them from making poor decisions while intoxicated.

Mr Montalto then started asking me questions about 'which girls in the class liked [him]'. Mr Montalto then proceeded to talk about another student, [FM1], and stated that she was 'throwing herself' at him but that he was not interested.

1. Mr Montalto said that this allegation is false, although he does agree that he did attend the Ethics drinks on 18 August 2014 with students. He further alleged, without going into detail, that FM2 had issues which were the reason for these allegations.
2. During cross-examination, FM2 like FM1 was consistent with her evidence and did not change or disavow any of the evidence contained in her witness statement. She was neither challenged as to the veracity nor the reliability of her evidence. The respondent, as in dealing with this particular of allegation 2 as with other allegations, would not make concessions where appropriate.
3. Given all these circumstances, we have no hesitation in accepting FM2 as a witness of truth. Given these circumstances we find the particular to allegation 2(iii)(A) proved to our comfortable satisfaction.

(iii)(B) allegation that the respondent touched a student, FM5, on her back and shoulders; and (C) cuddled and touched another female student on her hips, back, shoulders and arms

1. FM5 did not give evidence as she was unwell. However her statement was tendered in evidence. Also, at paragraph 13 of FM2's statement she states:

Mr Montalto was touching [FM5] on her back and shoulders.

Mr Montalto then proceeded to become more 'physical' with [another female student who is named] and that he was cuddling and touching her on her hips, back, shoulders and arms. [The other female student] appeared to be comfortable with the touching and so I was not concerned for her despite the fact that it made me feel uneasy.

1. The respondent denied these particulars, and said that he only did 'hi fives.' He did not touch the students.
2. As with the evidence we have already referred to in relation to FM2, we prefer her evidence to that of the respondent for the reasons we have given. Therefore we find these particulars to the allegation proven to a comfortable standard of satisfaction.

Allegations concerning the evening of 28 August 2014 (the trimester drinks)

(A) The respondent invited various students, including students of his, to participate in sexual activity with him and/or his girlfriend

1. At paragraph 35 of FM2's witness statement she stated as follows:

Mr Montalto later asked all of the female students and me whether we would like to 'join him'. I wish to clarify that that Mr Montalto's actual words were 'join us in a threesome'. We understood that he was asking us to participate in sexual activity with him and Sarah.

1. It should be noted that the respondent's girlfriend Sarah was at the trimester drinks.
2. At paragraph 16 of the male student's statement he states as follows:

Mr Montalto and his girlfriend told me that they had rented a hotel room for the night and that I witnessed them working like a 'tag team' to convince female students to go with them to their hotel room. I observed Mr Montalto approach each female student who was present and engage her in conversation for a short time (no more than five minutes). ... , if the student did not engage with Mr Montalto, his girlfriend would then start talking to the student. This occurred while we were sitting down at tables at the Lion Hotel - the tables were 'outside' the main part of the bar but still inside the shopping centre.

1. At paragraph 46 of FM1's witness statement she states:

Mr Montalto and Sarah began telling me and some of the other students that he and Sarah had booked an apartment in the city to stay at after the drinks. He then said words to the effect that he 'wouldn't be opposed to people joining them'. I understood this to mean that he wanted the female students to participate in sexual activity with him and Sarah. ... Sarah was 'getting friendly' with the female students.

1. At paragraph 24 of FM4's witness statement she stated:

I had also heard that Mr Montalto had asked [FM1] to stay over at his and Sarah's hotel room for the evening, and that Sarah was bisexual and that she and Mr Montalto had an 'open relationship'. I do not recall who told me this.

1. It is noted, that the statement of FM4 is hearsay and does not give the source of her hearsay.
2. At page 143 of the Tribunal Book, in a statement given to the tertiary college by FM5 which was tendered in evidence, she stated:

When I was sitting on the table he [the Respondent] came and sat next to me. I was sitting away from my friends. We were just talking and then he started saying 'oh come back to the hotel. You don't have to do anything we'll just have drinks, we' just hang out we'll make pancakes and hang out on the balcony.'

And then I said 'look I know what you want and that's not happening. He then grabbed my hand and came close to me, 'we love the people that we sleep with, we're friends with them, we care about them', he was saying 'imagine Sarah's like holding your hands while I'm on top of you'. ... then he said something I could not hear - I moved closed to him to hear what he said and he kissed/licked my neck under my ear. I turned my head to ask what he was doing and he kissed me.

1. The respondent denied that he had made the propositions referred to in these allegations and in the statements by the witnesses.
2. We also note, that FM5 was unable to attend cross-examination because of ill health.
3. However, we have formed the view that there is a solid body of evidence before us which suggests, that the respondent was trying to recruit his female students into having a sexual relationship with both him and his partner at their hotel room. We were impressed with the evidence that the students gave, and such evidence was consistent and withstood cross-examination (except in the case of FM5). We did not get the same comfortable feeling about the respondent's evidence. The best he could say were these witnesses were either mistaken or lying. We find the respondent's version difficult to accept as there were multiple consistent accounts to support the allegation from the other witnesses. Therefore, we find that the particular to allegation 2(iv)(B) has been proved to a comfortable level of satisfaction.

(B) respondent made sexually suggestive statements to FM2

1. At the night of the end of trimester drinks FM2 alleges the respondent said to her, "you are my favourite" and "why are you getting mad at me, I just really, really like you".
2. Again the respondent denied he made any such statement. FM2's evidence was consistent in itself and consistent with the other evidence that had been given about the events of that night. The respondent did not give the impression of truth in his denial.
3. Therefore we find this particular of this allegation proved to a comfortable level of satisfaction.

(B)(II) respondent saying to FM3 "Don't look at me like that, you know what that does to me when you look at me like that"

1. The allegation arose from the end of trimester drinks, when FM3 was sitting at a table opposite the respondent. As with the other allegations, the respondent has made a flat denial and was unable to offer any explanation as to why FM3 would make such a statement.
2. FM3 gave the impression of a witness of truth and there was no reason put to her as to why she would be inventing such a statement. Her evidence was consistent in itself and with other witnesses. Therefore we find this allegation proved to a comfortable level of satisfaction.

(C) purchased alcoholic drinks for various students, including his students

1. FM1, at paragraph 23 of her witness statement, referring to a time that was neither the Ethics drinks or trimester drinks, stated as follows:

Mr Montalto often pressured me to buy him alcohol. Every time I met Mr Montalto I told him that I did not want to drink, but he proceeded to purchase a round of drinks for both of us notwithstanding. He usually drank vodka with raspberry lemonade and purchased the same for me.

1. At paragraph 13 of the male student's witness statement referring to the evening of the trimester drinks he states as follows:

after a few hours of drinking at the Lion Hotel, Mr Montalto handed me and another student his wallet, saying 'here, take my wallet and get whatever you want, I'm going for a piss'. To the best of my recollection, the other student was ... [Student name] and I did not buy ourselves any drinks with Mr Montalto's money as we did not trust him - we felt that Mr Montalto might have been 'testing' us and that he would become angry upon his return if we did spend any of his money. When Mr Montalto did return he insisted on purchasing drinks for us.

1. In paragraph 30 of FM2's witness statement referring to the evening of the trimester drinks she states as follows:

When we arrived at the Lion Hotel, I immediately noticed that Mr Montalto was behaving in an unusual manner. I do not know whether he was intoxicated at this stage, but he appeared to be very excited and was yelling, swearing, offering people drinks and kissing Sarah in a very public way.

1. The respondent denied that he ever purchased drinks for any of the students individually, however he did say that on an occasion, which we believe to be the evening of the trimester drinks, he did purchase two jugs of beer for him and the students to consume.
2. As with the other matters, we accept what the students have said as their evidence had a consistency about it. Further, we note that the respondent has admitted purchasing drinks for the students, namely two jugs of beer. Therefore, we find that this particular to this allegation is proved to a comfortable level of satisfaction.

1. At paragraph 23 of FM4's witness statement she states as follows:

Earlier in the evening (just before Mr Montalto asked me to speak to him), I had been told that Mr Montalto had also kissed [FM5]. I had been speaking to some other students when I heard some sort of commotion and looked over at Mr Montalto to see him sitting very close to [FM5]. The 'commotion' was the noise made by the students in surprise. I was subsequently told what had happened by other students, though I did not witness the kiss directly. I recall being shocked by the incident, not just because Mr Montalto was a lecturer but also because Sarah was present, though she did not appear to be upset.

1. At paragraph 18 of FM3's witness statement she states as follows:

I subsequently reacted angrily and yelled at Mr Montalto 'after I saw him [the respondent] kiss [FM5]. This took place while we were in the 'outside' section of the Lion Hotel. Mr Montalto, the other students and I were sitting at a large table. Mr Montalto was sitting next to [FM5] on the opposite side of the table to me. I could not hear what they were speaking about, but I saw Mr Montalto lean in and kiss [FM5] on the mouth. Mr Montalto initiated the contact. To the best of my recollection, [FM5] did not react or pull away.

1. At paragraph 19 of the male student's witness statement he states as follows:

Mr Montalto was sitting to [FM5]'s left and had placed his right hand on her left knee. I also saw him lick [FM5]'s ear, and then attempt to kiss her on the lips, though I believe she turned away. I recall that [FM5] looked confused by Mr Montalto's behaviour, and accordingly I felt that she was 'in two minds' about whether she wanted to engage with him.

1. FM1, on the night of the trimester drinks at paragraph 37 states that Mr Montalto asked her to take his girlfriend to have something to eat. After she had done so she returned to the Lion Hotel and saw, 'Mr Montalto kiss a student [FM5].' In FM1's oral evidence she said that FM5 pushed Mr Montalto away.
2. The respondent denied the kissing incident altogether. He said at the most it was an air kiss. He said he did not kiss FM5 on the mouth. It is consistent with evidence from the other students, that the respondent did in fact kiss FM5 on the mouth. There is varying degrees as to the length of the kiss. The male student believed that the lips of FM5 and the respondent did not make contact. However, it became apparent from his oral evidence that the angle at which he was looking at the couple, he could well have been mistaken.
3. Given the consistency of evidence to which we have referred to above, in our view, we find with a comfortable degree of satisfaction that the respondent did kiss FM5 on the mouth. Therefore, the particular to this allegation is made out.

1. At paragraph 47 of FM1's witness statement, referring to the evening of the trimester drinks, she states as follows:

He repeatedly put his arm around students, including me. He also kissed my face (on the cheek) at one stage. I saw him do the same to other students, including [FM5]. When I left to go home, at approximately 11.00pm, Mr Montalto placed his arm around me again and requested again that I go to the apartment with him and Sarah. I refused and returned home.

1. The respondent flatly denies this allegation and says that it did not happen. As with the other allegations, we were impressed with the evidence of FM1 and found it consistent not only with her own evidence but with the evidence of the other students as well. On the other hand, we did not get the same impression in relation to the respondent. Given those circumstances, we find that this particular to the allegation is proved to a comfortable degree of satisfaction.

(F), (G), (H) and (I) allegations concerning FM2 near the corner of Lonsdale and Swanston Street after the trimester drinks where the respondent allegedly groped her on her breasts, attempted to undo her pants and/or attempted to put his hand inside her pants and exposed his erect penis to her

1. FM2 was the last student to leave the Lion Hotel after the trimester drinks. At that stage, the respondent and his partner were still at the Lion Hotel. She had left the Lion Hotel earlier but needed to return to recover her handbag. When she returned to the Lion Hotel, she alleged that the respondent tried to stop her by grabbing her wrists. Eventually she left the hotel and rang her mother to pick her up. While she was waiting on or near the corner of Swanston and La Trobe Street, she noticed the respondent and his girlfriend. After some conversation, she states as follows at paragraph 48ff of her witness statement:

Mr Montalto then let go of my right wrist and put the same hand down my bra, touching my right breast. I believe that his other hand was either on my hip or my shoulder, pinning me against the roller door. I was unable to move. ... I told him again to get off me and threatened that if my mother saw him she would file a police report. Mr Montalto replied that his career was 'ruined anyway' and proceeded to talk about [another lecturer] again.

Mr Montalto then attempted to put his hand down my pants, using the hand he had been using to pin me against the roller door. His other hand was still inside my bra. I do not believe that he removed my belt but was attempting to get his hand underneath it. I used both of my hands to twist his hand to get it out.

Mr Montalto then took a few steps back and fumbled with his own belt and zip. I recall that he was wearing black suit pants and a blue shirt. He pulled his underwear down and showed me his erect penis, and then started walking towards me. I believe that Sarah was sitting on the floor at this time and that she was crying.

I immediately turned and left. My mother was waiting for me in her car near the corner of Little Lonsdale and Swanston Streets. There were approximately three or four people walking around in the area, though they did not seem to notice anything. My mother asked me how my night was ... I told her that one of the lecturers had been inappropriate with the students but did not provide any more details. At the time I felt that if I told my mother about the physical incident with Mr Montalto, she would pressure me to file a police report. I was not sure whether I wanted to take any action at that stage.

1. When asked in oral evidence why she did not want to take police action, FM2 said that she did not believe there was sufficient evidence for police to take action against Mr Montalto and she did not want to be involved in that situation.
2. The respondent said in his oral evidence, that if he had taken the alternate way out of Melbourne Central from the Lion Hotel to the corner of Swanston and La Trobe Street, as suggested by FM2, he could not have been there in the time she suggested. It was not made clear to us, why, it was unlikely that the respondent would have taken the route that he suggested in order to get to the corner. We believe, that he was at the corner at the time suggested by FM2.
3. We also accept, what FM2 said, when it was put to her that such action would be unlikely because there were people outside at the time. She stated that there were few people outside and that they were not taking any notice. During the hour of day (early in the morning) we are of the view that this is likely to be correct.
4. As with the other allegations, we found the evidence of FM2 convincing and consistent. We do not accept the denial by the respondent and we are comfortably satisfied, on the evidence that was given that the events as described by FM2 in fact took place. Therefore we find that these particulars to allegation 2 are proved to a reasonable degree of satisfaction.
5. We note in relation to allegation 2 generally, that there were a number of witnesses called and during cross-examination none of them changed their story or disavowed their evidence in any way. Neither did any witness challenge the veracity of the evidence of the students. Further, there was no evidence or suggestion that there was any conspiracy or concoction in relation to any of the evidence given by the students, even though Mr Müller suggested in his written submission that the students were coached and their evidence recreated by a notifier who was a member of the tertiary college staff.
6. Given all these matters, we find that the particulars of allegation 2 have been proved to a reasonable satisfaction, that is, each and every one of those particulars.

1. Mr Müller submitted that the conduct alleged by the Psychology Board of Australia (Board) in relation to him was personal conduct, which occurred outside the practice of psychology. This is undoubtably correct. However, it was conceded by Mr Müller that there are circumstances in which a person's disreputable personal conduct may reflect on their eligibility to hold registration or amount to professional misconduct. Mr Müller submitted that the conduct must be sufficiently serious as to have relevance to the requirement for registration under the National Law to bear upon the practitioner's ability to hold registration. Perhaps put a different way, does the conduct in which we have found that the respondent engaged amount to making him not a fit and proper person to practise psychology?
2. Mr Müller cited a number of cases which he submitted demonstrated that this type of conduct, that is, personal misconduct, was not sufficient to amount to professional misconduct.
3. Mr Müller referred to Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46; [1957] 97 CLR 279 at p 298 where Kitto J stated:

It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co-operation which the satisfactory working of the courts demands. A conviction may of its own force carry such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails. But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no means always an easy task.

1. It would appear, from the decision in A Solicitor v Council of the NSW Law Society [2004] HCA 1; (2004) 216 CLR 253 at 273-274, that a major test as to whether the personal conduct is such as to amount to professional misconduct is whether

the nature of the trust, and the circumstances of the breach, were so remote from anything to do with professional practice that the characterisation of the appellant's personal misconduct as professional misconduct was erroneous.

Mr Müller correctly conceded, that if the allegations as proved show that the alleged conduct occurred and that there was a power imbalance between the respondent and those against whom the alleged conduct was directed, and the respondent exploited that power imbalance for the purpose of engaging in the alleged conduct, then that would amount to professional misconduct.

1. One of the most important matters to be considered, in a case concerning a psychologist and a patient is the power imbalance that exists between that psychologist and patient. In this particular case, the respondent had power over his students. There was evidence given, that the students or some of them believed that the respondent had power to alter their marks. There was also evidence given that they believed he had power to alter into whose tutorial they would be. This is a significant power which the respondent exercised over his students. Put differently, the students were forced into action that they would not have otherwise taken or put up with had the respondent not been their lecturer or tutor. In other words, the respondent exploited the power imbalance.
2. The respondent submitted, that in relation to the events at the end of the trimester drinks that he no longer had any power over his students, he was no longer their lecturer or tutor, and even though the exams had not been marked, he was unaware of which student had written which exam because of the anonymity as a result of using examination numbers rather than names. This may be correct, however that is really not the point. The students did believe in our view that the respondent could exercise power over them. There is usually if not always, a power imbalance between a teacher and a student whether that teacher be at school or tertiary level. Thus we find in this situation there was a power imbalance in the respondent's favour between him and his students. This power imbalance is similar to a power imbalance between a psychologist and a patient.

FIT AND PROPER PERSON AND PROFESSIONAL MISCONDUCT

1. In New South Wales Bar Association v Cummins [2001] NSWCA 284, Spigelman CJ stated:

There is authority in favour of extending the terminology 'professional misconduct' to acts not occurring directly in the course of professional practice. That is not to say that any form of personal [mis]conduct may be regarded as professional misconduct. The authorities appear to me to suggest two kinds of relationships that justify applying the terminology in this broader way. First, acts may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice. Secondly, conduct outside the course of practice may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice. In this second case, the terminology of 'professional misconduct' overlaps with and, usually it is not necessary to distinguish it from, the terminology of 'good fame and character' or 'fit and proper person'.

1. The term fit and proper person was considered by the Tribunal in Psychology Board of Australia v Griersmith [2019] VCAT 52, at [67] the Tribunal stated:

The term 'fit and proper person' is not defined in the National Law but its meaning has been the subject of much judicial comment. The test does not carry defined criteria but allows for a wide range of matters to be considered. It includes not only whether a person has the necessary honesty, knowledge and ability but also whether the person possesses sufficient moral integrity and rectitude of character to permit them to be accredited to the public as a person to be entrusted with the sort of work the relevant registration or licence entails. The decision maker needs to make a value judgment and, in so doing, must make an assessment of the seriousness or otherwise of the particular conduct for evaluation. The same approach is to be applied to weighing matters in favour of the person. The test must be applied in the context of what the person will be authorised to do if the relevant permission is given.

1. The power imbalance demonstrated by the respondent with the students is very similar to the power imbalance that often occurs between psychologist and patient. It is in these circumstances, that psychologists have been known to be in trouble for using that power imbalance to go outside the proper boundaries. In this particular case, it is clear from the evidence, that the marks were not out, the students believed that the respondent may be able to influence those marks and further, his students were unaware of whether or not the respondent was to be reappointed and lecturing them in another year.
2. The year coordinator talked to the respondent at the Lion Hotel on the night of the trimester drinks and warned him against his behaviour. His answer to that was he did not believe the students were any longer his students and he obviously did not see anything wrong with his behaviour. This clearly shows that the respondent did not have an understanding of what his duty was to his students or the power imbalance that was involved.
3. In making the suggestions and propositions to his students which we have found that the respondent made, he was clearly exercising that power imbalance to his favour. Most of the students were quite uncomfortable with his behaviour and yet he continued. This showed, that the respondent was able to manoeuvre professional boundaries. In our view his behaviour was deliberate, predatory and opportunistic.
4. It was noted by the Psychologists Tribunal of NSW in Health Care Complaints Commission (HCCC) v Biersteker (No. 1) [2007] NSWPST 2 that:

The trust placed in psychologists is analogous to that placed in medical professionals because of the necessity for the client to disclose highly personal information to the psychologist in the course of treatment.

1. Given this circumstance, we are of the view that somebody who behaved in the way that the respondent behaved towards his students, in a position of power where that power imbalance was violated, cannot be a fit and proper person for the practice of psychology.
2. Thus we find both allegations have been made out. We also find, that pursuant to paragraph (c) of the definition of professional misconduct that, the respondent's conduct, and lack of remorse in relation to such conduct, renders him not a 'fit and proper person to hold registration in the profession'. Thus, it necessarily follows that the respondent is guilty of professional misconduct. We find this in relation to both allegations.

1. Mr Müller submitted, that the respondent was at a forensic disadvantage in this matter. He said the circumstances arising this matter occurred in 2014 and that his client was first alerted to some problem around 2015, but not referred to AHPRA until January 2018.
2. Mr Müller stated that this put his client at a forensic disadvantage because he was unable to rely on material that he otherwise might. For example, he may have had his phone records and other records available to him to prove his innocence which he did not.
3. In our view these are evidentiary matters. In coming to the conclusion which we have in relation to the respondent's evidence as opposed to that of the students, we have taken into account this forensic disadvantage that Mr Müller has referred to. In spite of that, we were still strongly of the view that the students' evidence was basically consistent with themselves and consistent with each other and all told similar stories. Given this circumstance, we did not have difficulty in accepting the version of the students rather than that of the respondent.

1. We find that allegations 1 and 2 have been made out and that the respondent is guilty of professional misconduct within the meaning of the National Law.