He has pleaded not guilty to five counts of knowingly giving false or misleading evidence at a hearing, relating to answers he gave the NSW Crime Commission in November 2021.

Surveillance warrants were granted for police to monitor the couple’s home and telecommunications in December 2020.

The devices captured what police prosecutor John Marsh called a “significant day in the household” in October 2021.

Defence barrister Phillip English described it as “stressful and emotional” and said the foster father might not have remembered a snippet of conversation from that morning when asked about it later.

“She kicked me,” the child told the foster father in a recording played to Sydney’s Downing Centre Local Court on Tuesday.

“Because …,” the foster mother prompts.

“I was going to kick (a different child),” the child says.

The foster father was so concerned about the incident he returned home shortly after leaving the house to discuss it with his wife and should have remembered it when he faced the commission weeks later, Sgt Marsh told the court.

“He was lying to cover the fact that his wife had assaulted a child in their care,” the prosecutor added.

Another incident involving the use of a wooden spoon in January 2021 was recent enough to be recalled given how long the child spent with the family before being removed from their care, Sgt Marsh said.

The foster mother pleaded guilty to assaulting the child in September.

“I can’t believe I did that,” she told her husband the morning she kicked the child.

She was previously acquitted of giving false or misleading evidence to the commission in November 2022.

The foster parents and the child cannot be identified for legal reasons.

The child is not William, who vanished from his foster grandmother’s house at a property at Kendall on the NSW mid-north coast in 2014 when he was aged three.

The crime commission hearing was not bound by the same evidence rules and practice as the courts, with no requirement for the foster father to have his memory refreshed with recordings from police surveillance devices, Sgt Marsh said.

Mr English said the commission had important powers that needed to be used correctly and lawfully.

“I’m not asking Your Honour to find as a fact the commission was conducted for an unlawful purpose, but it’s for the prosecution to satisfy Your Honour that it was (lawful),” Mr English said.

The foster parents were called before the commission to examine William’s disappearance and the questioning about the other child was not relevant, Mr English submitted.

He said the prosecution had not discharged its onus to prove the charges beyond reasonable doubt and Magistrate John Arms would be required to make some objective assessments about the material.

The foster father may have made honest mistakes but had no criminal intent to deliver dishonest evidence, Mr English said.

The hearing continues.

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