Harvey and Secretary, Department of Education, Employment and Workplace Relations and Anor [2011] AATA 23 (21 January 2011)

Last Updated: 24 January 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 23

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/2814

GENERAL ADMINSTRATIVE DIVISION
	Re		ALEXANDRA HARVEY

Applicant

	And	SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Respondent
	And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Deputy President S D Hotop

Date 21 January 2011

Place Perth

Decision

Tribunal sets aside the decision of the Social Security Appeals Tribunal dated 29 April 2009 and, in substitution therefor, decides as follows: the applicant was a “member of a couple”, for the purposes of the Social Security Act 1991 (Cth) (“SS Act”) and the A New Tax System (Family Assistance) Act 1999 (Cth) (“FA Act”) for the whole of the period from 22 October 2002 to 28 April 2008 (“the relevant period”); the amounts of overpayments of parenting payment under the SS Act, and the amounts of overpayments of family tax benefit and child care benefit under the FA Act, received by the applicant in the relevant period are debts due by the applicant to the Commonwealth under, respectively, s 1223 of the SS Act and ss 71 and 71C of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (“FAA Act”); those debts are recoverable in full from the applicant by the Commonwealth in accordance with Pt 5.3 of the SS Act and Div 3 of Pt 4 of the FAA Act.

..........[sgd S D Hotop]........

Deputy President

CATCHWORDS

SOCIAL SECURITY – member of a couple – applicant married in 2001 – applicant received social security payments and family assistance as a single person in period 2002–2008 (relevant period) – applicant not living separately and apart from spouse on permanent or indefinite basis in relevant period – applicant a member of a couple for whole of relevant period – applicant received overpayments of social security and family assistance in relevant period – debts due by applicant to Commonwealth – debts cannot be waived – debts cannot be written off – debts recoverable in full – decision under review set aside

A New Tax System (Family Assistance) Act 1999 (Cth), s 31

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), s 71, s 71C, s 95 and s 101

Social Security Act 1991 (Cth), s 4(2), s 4(3), s 1223, s 1236 and s 1237 AAD

REASONS FOR DECISION

21 January 2011	Deputy President S D Hotop
INTRODUCTION

1. During the period from 22 October 2002 to 28 April 2008 (“the relevant period”) Alexandra Harvey (“the applicant”) received payments of parenting payment under the Social Security Act 1991 (Cth) (“SS Act”) and payments of family tax benefit and child care benefit under the A New Tax System (Family Assistance) Act 1999 (Cth) (“FA Act”) on the basis that she was not a “member of a couple” for the purposes of those Acts.
2. On 8 September 2008 a Centrelink authorised review officer (“ARO”) decided that, for the whole of the relevant period, the applicant was a “member of a couple”, for the purposes of the SS Act and the FA Act, on the basis that she was not “living separately and apart from” Troy Falkingham (to whom she was legally married) “on a permanent or indefinite basis”. Accordingly, the ARO decided that the applicant had received overpayments of parenting payment, family tax benefit and child care benefit during the relevant period and that the full amount of those overpayments should be recovered from her. The ARO also decided that the applicant’s parenting payment had been correctly cancelled by a Centrelink officer with effect from 29 April 2008.
3. On 29 April 2009, however, the Social Security Appeals Tribunal (“SSAT”) set aside the ARO’s decision and sent the matter back to Centrelink for reconsideration in accordance with the following directions:

“ • Ms Harvey was qualified to received parenting payment, family tax benefit and child care benefit as a single person between 22 October 2002 and 31 March 2003.

• Ms Harvey was in a marriage like relationship between 1 April 2003 and 24 May 2004.
• Ms Harvey was qualified to receive parenting payment, family tax benefit and child care benefit as a single person between 25 May 2004 to (sic) 30 November 2004.
• From 1 December 2004 to 28 April 2008 Ms Harvey was in a marriage like relationship;
• Mr Falkingham’s income for the periods when Ms Harvey was in a marriage like relationship needs to be determined by Centrelink.
• Ms Harvey’s rate of parenting payment, family tax benefit and child care benefit is to be recalculated for the periods when she was in a marriage like relationship taking into account Mr Falkingham’s income.
• Ms Harvey’s entitlement to parenting payment at the partnered rate from 29 April 2008 needs to be calculated once Mr Falkingham’s income has been established.
• The resultant debt is to be recovered from Ms Harvey.”
  

4. The applicant has applied to this Tribunal for review of the SSAT’s decision.

THE ISSUES AND THE TRIBUNAL’S DETERMINATION

5. The primary issue for the Tribunal’s determination is whether the applicant was a “member of a couple”, for the purposes of the SS Act and the FA Act, in the relevant period. If the Tribunal determines that the applicant was a “member of a couple” in that period and that she, accordingly, received overpayments of parenting payment, family tax benefit and child care benefit in that period, another issue will arise, namely, whether the amounts of such overpayments should be recovered from her.
6. For the reasons which follow, the Tribunal has determined that:
   • the applicant was “member of a couple”, for the purposes of the SS Act and the FA Act, for the whole of the relevant period;
   • the amounts of overpayments of parenting payment, family tax benefit and child care benefit received by the applicant in the relevant period are recoverable from her in full as debts due by her to the Commonwealth.

THE RELEVANT LEGISLATION: “MEMBER OF A COUPLE”

7. The phrase “member of a couple” is relevantly defined in s 4 of the SS Act (as in force at all material times) as follows:

“ 4(1) In this Act, unless the contrary intention appears:
...
member of a couple has the meaning given by subsections (2), (3), (3A), (6) and (6A);
...
Member of a couple—general
4(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a) the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or
...
Member of a couple—criteria for forming opinion about relationship
4(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) ... the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage-like relationship.”

8. In s 3(1) of the FA Act it is provided that the phrase “member of a couple” has the same meaning as in the SS Act.

THE EVIDENCE

9. The evidence before the Tribunal comprised:
   • the “T Documents” (T1–T87, pp 1–1521) lodged by the Secretary, Department of Education, Employment and Workplace Relations and the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondents”) in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
   • Exhibits A1–A10 tendered by the applicant;
   • Exhibits R1–R11 tendered by the respondents; and
   • the oral evidence of the applicant, Troy Falkingham (who was called as a witness by the applicant),and Helen Hawke (who was called as a witness by the respondents).

THE FACTUAL BACKGROUND

10. On 27 May 1999 the applicant claimed parenting payment. In the claim form the applicant indicated that she had a dependent child (born in May 1999) and that she did not currently have a partner (T4). She was subsequently paid parenting payment at the single rate, with effect from 27 May 1999 (Exhibit R2).
11. On 27 May 1999 the applicant also claimed family allowance and other related benefits, and she subsequently received such payments with effect from that date (T5; Exhibit R2).
12. On 27 May 1999 Centrelink sent a notice to the applicant advising her of her obligation to inform Centrelink, within 14 days, of changes in her circumstances, including any change in her marital status. Such notices were periodically sent to the applicant after that date and throughout the relevant period (Exhibit R3; T87).
13. On 5 December 2000 the applicant claimed family tax benefit. In the claim form the applicant indicated that she had 2 dependent children (born in May 1999 and November 2000) and that her current marital status was “single – never married and never lived de facto” (T6). She was subsequently paid family tax benefit on the basis of that claim, with effect from 5 December 2000 (Exhibit R2).
14. The applicant and Troy Falkingham (“Mr Falkingham”) were married on 27 January 2001 (Exhibit R1).
15. On 26 June 2002 Centrelink received information from a member of the public that the applicant and Mr Falkingham “were married a couple of years ago” and were living in Ocean Grove, Victoria, having moved there from Perth (T7).
16. On 8 July 2002 Mr Falkingham made a signed statement to Centrelink as follows:

“ I wish to respond to the allegation supplied by a member of the public stating I am living in a marriage like relationship with Alexandra Harvey. I wish to state I came to Victoria in April 2002 to locate my daughter ... About 2 weeks ago Alexandra and [my daughter] stayed with me at ... Thacker St for 1 week. I wish to advise Alexandra did not reside at the property before this time and I do not know where she is now. I wish to advise I am currently renting the property in Thacker Street...
I wish to again state Alexandra Harvey is not residing at ... Thacker St and we are not living in a marriage like relationship.” (Exhibit R4)

17. On 9 July 2002 the applicant made a signed statement to Centrelink as follows:

“ I wish to respond to the allegation supplied by a member of the public stating Troy Falkingham and I were married 2 years ago and currently residing together at ... Thacker St, Ocean Grove. I wish to advise Troy and I were married in January 2001. At the we (sic) felt we had to get married to please others including our parents. At the time Troy and I did not reside together and most of the time he would visit for a couple of days when he had time off for (sic) work. I moved to Victoria at the start of March 2002. Troy moved to Victoria at the start of April and we lived together at ... Thacker St. I understand that I did not advise Centrelink when I got married or when I moved from the Peninsula Hotel to ... Thacker St. I understand I may have to repay any money I was not entitled to.” (T8)

The applicant’s address, as written immediately above that statement, is “... Thacker St, Ocean Grove” (T8) – the same address as appears immediately above Mr Falkingham’s abovementioned statement (Exhibit R4).

18. From July 2002 the applicant’s Centrelink payments were reduced to the partnered rate.
19. On 4 October 2002 Centrelink informed the applicant that she had been overpaid parenting payment in the period from 16 January 2001 to 2 July 2002 and that the amount of that overpayment was to be recovered from her (T10, p 172; T87, p 1312).
20. On 28 October 2002 the applicant notified Centrelink, for the purposes of her parenting payment, that she and Mr Falkingham had separated on 1 October 2002 (T11, pp 187–190).
21. On 27 November 2002 the applicant claimed family tax benefit and other related benefits, in respect of the 2002–2003 financial year, following the birth of her third child earlier that month. In the claim form the applicant indicated that she did not currently have a partner (T13), and she was subsequently paid family tax benefit on that basis (Exhibit R2).
22. On 8 December 2003 the applicant claimed carer allowance/carer payment in respect of her third child (born in November 2002), and on 21 June 2004 she claimed carer allowance/carer payment in respect of her second child (born in November 2000). In each claim form the applicant indicated that her current marital situation was “separated” and that she had separated from Mr Falkingham on 1 October 2002 and that there was no chance of a reconciliation (T15, T19).
23. On 9 April 2005 the applicant successfully claimed a prize of $75,000 in a Crossword Instant Lottery Game conducted by the Lotteries Commission of Western Australia (T44), but she failed to inform Centrelink of that fact.

THE APPLICANT’S EVIDENCE

24. The applicant tendered in evidence her signed statement, dated 20 April 2010 (Exhibit A1). That statement is as follows:

“ 1. I was born [in] January 1978 in Caulfield, Victoria.

2. Unless otherwise stated, my comments in paragraphs 28 to 57 below refer to the period October 2002 to April 2008.

Early childhood, schooling, family support
...
Troy Falkingham

20. I met Troy Falkingham in around September 1998. Troy’s brother and his wife were living across the road from mum.
21. Troy was in a relationship with another woman.
22. I was in a relationship with a man who was physically and verbally abusive. I found out I was pregnant in 1998 and knew if I did not get away, I would be seriously injured or killed.
23. I left my partner when I was three months pregnant and did not tell him where I was going
24. I had my first child, ..., [in] May 1999.
25. Troy and I commenced a de facto relationship in around late 2000 and got married in late January 2001.
26. I had two children with Troy: [born in November 2000 and November 2002].
27. Troy and I fought constantly. It was never a loving and supportive relationship. We even fought on our wedding night. I never felt supported by Troy. I thought he was irresponsible with work and refused to grow up. Troy and I ended up separating in around September 2002 when I found out Troy had cheated on me with another woman. I wanted nothing more to do with him. I was six months pregnant with ... at the time.

My physical and mental health conditions

28. I was diagnosed with depression over ten years ago.
29. After my third child, ..., was born, in November 2002, I had cervical cancer and was required to undergo a hysterectomy. I had five operations in three months. I have been going through menopause since I was 25 years old.
30. I was diagnosed with ADHD in late 2002 and have taken medication for this illness since then.
31. I take 11 tablets per day (200mg Zoloft for depression, dexamphetamine for ADHD, hormone replacement following hysterectomy and medication for chronic bladder infections).
32. Every day I feel bad. Sometimes I manage to get up, get the kids ready for school, take them to school, do the housework and the shopping, collect the kids from school, prepare their dinner and oversee their homework. Other days I feel terrible and cannot get out of bed. I am unable to function at all even though I know the kids are young and they need me. During these times I might be emotional and crying or I might feel completely flat and unresponsive. These periods can last for hours, days or sometimes weeks at a time. I never know when I am going to feel like this and have to take each day as it comes. When I am feeling down or depressed like this I am unable to put my children’s needs before mine.

Where I lived in 2002 - 2008

33. Between 1 October 2002 and April 2008, I lived at the following addresses:

(a) At my mother’s house at ... Drummond Street in Redcliffe between 1 October 2002 and 26 October 2002;
(b) ... Oriana Street Belmont between 26 October 2002 and around 20 July 2004; and
(c) ... Agonis Place Forrestfield from 20 July 2004 to present.

34. Troy did not live with me during this period. Troy spent time at my house when he was visiting the children and when I was unable to look after the children due to my illnesses.
35. Troy would only stay overnight when I was unable to get out of bed and function properly.
36. I do not know exactly where Troy lived in this period. I think he lived with his brother for some of the time. He moves around a lot and has never had a stable address. I did not go to his house in this period. I had no need to know where he was living as he always came to my house, when he was required.

Financial aspects of the relationship

37. I do not own, and have never owned, any property with Troy.
38. I do not have, and have never had, any joint bank accounts with Troy.
39. Troy does not have access to my bank accounts and I do not have access to his bank accounts.
40. Troy and I do not share day to day living expenses. I pay my rent and bills and for food for myself and the children.
41. Since our separation I have fought a lot with Troy about his failure to pay child support. I have hassled him constantly about contributing financially to the children. Troy bought the car I drive on finance. It was meant to be for Troy to drive. I was annoyed about him not paying child support and ended up buying plates (HER X8) for the car without him knowing about it and getting them fixed to the car without him knowing. When Troy saw the car with the new plates on it, he hit the roof. After several arguments, he agreed to give the car to me to drive. I have accepted the car from Troy instead of him paying child support.
42. In the period 2002 to 2008, Troy obtained a Westpac credit card and a Coles Myer store card. I was the secondary card holder for these accounts. I had a bad credit rating at the time and was unable to afford the bare essentials for my children. Troy added me as a secondary card holder so that I could make purchases for the children. I always repaid Troy immediately for these purchases.
43. With the exception of the car I drive and the two credit cards described above, which I had for a brief period during which I was in financial hardship, Troy does not provide me with any financial support.
44. If Troy did not provide me with a car to drive I would insist he pay child support.

Nature of the household

45. I run my own household including paying the rent and the bills. I do all the housework.
46. Troy has taken some responsibility for caring and supporting the children.
47. When Troy is at my house, or staying overnight because I require assistance, Troy occasionally helps with the housework. This is only when I need the assistance because of my health issues discussed above.

Social aspects of the relationship

48. Troy and I do not go out as a couple together.
49. I do not have a social life. I am a single mother with three children. I do not have any close friends. If I am not feeling well I do not feel like socialising.
50. I do not know what, if anything, Troy does for a social life.
51. In early 2005 I won $75,000 on a scratchie ticket. I told Troy that I was going to Malaysia for a holiday and asked him to look after the children. Troy became furious and told me he would take the children if I did not take him with me. If Troy had not made this threat I would not have taken him with me. Of the $75,000 the total amount I spent on Troy was less than $3,000, including his airfare and accommodation. The rest of the money was spent on my children and me.
52. The trip to Malaysia was the only holiday I have ever been on in my life.
53. On 17 August 2005 I went to a Jimmy Barnes concert with Troy. Troy asked me to go to look after his friend, Joe .... Joe’s brother is Troy’s old boss. Joe has Tourettes Syndrome. He is about 47 years old but lives with his parents and is mentally like a ten year old. The reason I ended up going was because Joe was old enough to buy alcohol but cannot look after himself responsibly. I had been at the concert about an hour. I went upstairs to get something to eat and then came back downstairs. I was standing watching [the] stage as Screaming Jets left the stage when I was hit by a woman with a glass bottle. The back of my head was split open. This was completely unprovoked. I was not looking in the woman’s direction when it happened and did know what she was about to hit me (sic). Troy attempted to step in and ended up arguing with the partner of my attacker. Troy, Joe and I walked straight out after the attack and went to the hospital.

Sexual relationship

54. In around September 2002, Troy started seeing another woman while he was still with me. I was angry at Troy and could not trust him after this. I do not know how long the relationship lasted.
55. Troy had a girlfriend in around 2004.
56. I had sex with Troy 5-6 times between 2002 and 2008.
57. I am not aware of the details of Troy’s sex life in this period.

Nature of the people’s commitment to each other

58. If I did not have children with Troy I would not have him in my life.
59. If I did not have depression Troy would not be invited to stay over at my house.

My financial position

60. I have no assets. As stated above, I drive a car which is owned by Troy (which is in lieu of Troy paying child support).
61. I do not work and I am unable to do so due to my physical and mental health problems.
62. My only income is Centrelink payments, which at 12 March 2010 was $106 per fortnight. I am now receiving Parenting Payment, Carers Payment and Family Tax Benefit.
63. Last month:

(a) I received a disconnection notice in respect of my electricity because of an unpaid bill of $400;
(b) I had an outstanding gas bill of $600 and faced disconnection of these services as well; and
(c) I received a termination notice from Homeswest due to an outstanding water bill of $400. Consequently, I faced eviction and homelessness for me and my three children.

64. I do not have a home phone as it is too expensive. I have a pre-paid mobile phone but I am often unable to afford credit.
65. I have outstanding school fees of $100, outstanding St John’s ambulance bills totalling $1800, a bill from my psychologist of $300 and a bill for (sic) my daughter’s doctor totalling $110. These are just some of my debts.
66. I am scraping by with some meagre financial assistance from my mother.
67. I would suffer extreme financial hardship if deductions were made from my current Centrelink payments. In particular:

(a) I am already unable to afford medical appointments including treatment from my psychologist. If I have deductions taken out of my Centrelink payments, I will be further prevented from obtaining the proper medical attention I require, including counselling for depression.
(b) I visit my GP once every two months in lieu of receiving specialist medical care. My GP costs $10 per session.
(c) As stated above, I take 11 tablets per day. This medication costs between $20 and $50 per month. If deductions are made from my Centrelink payments I will be unable to afford this medication.
(d) My daughter takes Ritalin LA and Ritalin 10 for ADHD. I have to see a specialist with my daughter every four months which costs $110. The Ritalin medication costs $15 per month which includes a sleeping tablet.
(e) My three children attend ... Primary School. The fees are supposed to be voluntary however the school has been chasing me for ‘outstanding’ fees of $100. The teachers have even asked my children why I have not paid the fees.
(f) My son, ..., has fits and has been admitted to hospital on numerous occasions. Although he has not been diagnosed as epileptic there is a real possibility that he will require hospital care or specialist treatment in the future in respect of this medical condition.”

25. The applicant also tendered in evidence:
    • her current income/expenditure statement, according to which her total income comprises social security payments of $1,023.66 per fortnight and her total expenditure is $1,026.50 per fortnight (Exhibit A2);
    • a Notice of Breach of Agreement and Warning of Eviction given to her by the Department of Housing on 26 October 2010 in respect of her failure to pay water consumption charges of $444.18 (Exhibit A3);
    • bundle of documents including:
      • - unpaid St John Ambulance accounts, dated October/November 2005, totally $1,097.80;
      • - notice of demand for payment of debt of $993.53 owed to Buggles Forrestfield ECL, dated 21 July 2005;
      • - unpaid Alliance Factoring Pty Ltd account for $1,092.27, dated 19 August 2005;
      • - notice of demand for payment of account of $43.97 owing to Dr K R Whiting (Paediatrician), dated 21 July 2006 (Exhibit A4);
    • Specsavers account for $304 paid on 23 August 2010 (Exhibit A5);

• Income Statement issued by Centrelink on 16 August 2010, according to which:
  • - her social security payments total $1,262.38 per fortnight;
  • - her financial investment income is $30.00 per annum;

- her maintenance income is $4,294.00 per annum (Exhibit A6).

26. In her oral evidence the applicant said that she also has other unpaid bills, including a bill from her psychiatrist for $325, credit card bills, and an amount of $15,000 owing on a car loan obtained in the late 1990s (although the car was repossessed and she is no longer being pursued for payment). She said that she did not bring those other bills to the Tribunal hearing because they are “too heavy” and that she “just puts bills in a drawer”.
27. In cross examination the applicant gave evidence to the following effect:
    • when her first child was born in May 1999 Mr Falkingham would sometimes stay at her house;
    • Mr Falkingham is not the biological father of her first child;
    • Mr Falkingham is named as the father on the child’s birth certificate (Exhibit R1) because she does not want the real father or the child to know about it, and Mr Falkingham was agreeable to that;
    • she and Mr Falkingham commenced a “full-blown” de facto relationship in late 2000 but she found him to be “hopeless” and could not rely on him;
    • throughout the whole period from then up to 2008, Mr Falkingham “came and went”;
    • Mr Falkingham is the biological father of her second child (born in November 2000) and her third child (born in November 2002);
    • she did not tell Centrelink of the commencement of her de facto relationship with Mr Falkingham in late 2000 or of their marriage in January 2001 because she did not regard it as Centrelink’s business;
    • when she moved to Victoria in early 2002 Mr Falkingham followed her there: “he follows me everywhere – we have 3 children together”;
    • she came back to Perth because her mother was here;
    • she has not had a “sexual relationship” with Mr Falkingham since October 2002 but she has “had sex” with him 5 or 6 times since then “when he was being nice”;
    • when she won $75,000 in the lottery in April 2005, she did not tell Centrelink about it – asking rhetorically, “would you?” – and she thought it was “tax free”;
    • she wasted a lot of that money – she spent about $20,000 in Malaysia and she transferred $25,000 to “a person” as a deposit on a block of land but he “blew it at the casino”;
    • she took Mr Falkingham with her to Malaysia as a “pack horse” to carry her purchases;
    • she did not want to take her children to “a third world country” and they were looked after by her mother at her (the applicant’s) place while she was away;
    • if she had taken her mother with her, instead of Mr Falkingham, he would have taken the children to “wherever he was staying”;
    • she has not sought a divorce “as yet” because she has not had the money to do so, but now that she knows that “it doesn’t cost much” she is “contemplating” seeking a divorce.
28. The applicant was questioned about her places of residence in the period from 2000, and her evidence was as follows:
    • from February 2000 to August 2001 she lived in Planet Street, Carlisle but she cannot remember whether Mr Falkingham was also living there;
    • from August 2001 to March 2002 she lived in Butson Place, Redcliffe but she does not know where Mr Falkingham was then living;
    • she then moved to Victoria because she “needed a change” and “to get away from people” and she lived in Thacker Street, Ocean Grove from April 2002 but, although Mr Falkingham had followed her to Victoria, he was not living with her in Thacker Street;
    • after returning to Perth she lived in Oriana Street, Belmont from October 2002 and, because she was unwell after her third child’s birth in November 2002 and was often in hospital, Mr Falkingham had to stay at Oriana Street and mind the children, and he also stayed there after she came out of hospital;
    • she has been living in Agonis Place, Forrestfield in a house rented from Homeswest since July 2004, and during that time she has been “very unwell” and Mr Falkingham has stayed there – sometimes, for weeks at time – to care for their children when she has been ill.

She added that Mr Falkingham has “lived at [her] places quite a lot” because she has been “sick quite a lot”.

29. As regards motor vehicles, the applicant said that:
    • Mr Falkingham drives a Mitsubishi Magna car (which he originally purchased for her in 2001) and she has made payments to GE Finance out of her bank account for that car but Mr Falkingham gave her the money to do so;
    • she drives a Holden Adventura car (which Mr Falkingham purchased for himself in 2006) and she has made payments to Esanda Finance out of her bank account for that car but Mr Falkingham gave her the money to do so.
30. It was put to the applicant that bank records indicated that she and Mr Falkingham each withdraw money from their own bank account while at the Burswood Casino on various dates in 2006 and 2007. The applicant responded that there are “lots of ATMs at the Casino” and that she “played the pokies” and never saw Mr Falkingham at the Casino.
31. The applicant was referred to the statement of Helen Hawke (from whom she rented the property at Oriana Street, Belmont in 2002–2004), dated 30 April 2007 (T52 – see 36 paragraph below). She said that Ms Hawke visited the property during her tenancy on only 3 occasions and, on one occasion, a friend named Phil was there and she introduced him to Ms Hawke making it a clear to her that he was not Mr Falkingham. She said that the physical description of the man set out in para 8 of Ms Hawke’s statement did not match that of Mr Falkingham but instead matched that of Phil.
32. Finally, the applicant said that she realises that she “looks guilty” but that she was trying to do the best for her children by way of financial support.

THE EVIDENCE OF TROY FALKINGHAM

33. The applicant tendered in evidence a signed statement of Troy Falkingham, dated 20 April 2010 (Exhibit A7). That statement is as follows:

“ 1. I was born on [in] April 1973 in Perth.

2. Unless stated otherwise, my comments in paragraphs 28 to 50 below refer to the period October 2002 to April 2008.

Alexandra Harvey

3. I met Alexandra Harvey in late 1998. Her mother was living across the road from my brother at the time.
4. Alex and I started living together in late 2000 and were married in January 2001.
5. I have two children with Alex:[born in November 2000 and November 2002]. Alex has another child: [born in May 1999]. I treat all three children as my own.
6. During our marriage, Alex was extremely volatile. She split my head open, knocked me out cold with a pot, smashed a burning hot coffee cup on my head and split my head open, hit my windscreen with a torch and scratched the word ‘cunt’ on my car.
7. By late September 2002, our relationship had deteriorated to the point where we were hardly speaking to each other. I had also started seeing another woman.

Early childhood and schooling

8. I have never had a stable home life and have moved around a lot.
9. I left home when I was 11 years old and lived on the street until I was 16.

...
Personal issues
18. I have had a drug problem since I was 11 years old.
19. I have had a gambling problem since I was 18 years old.
20. I have never had treatment for my gambling or drug addiction.
21. I have tried to commit suicide a number of times.

22. I am in financial trouble. I have credit card debts of around $13,000, a car loan of approximately $40,000 and fines totalling $2,000. I have lost my licence because these fines remain unpaid. A woman is pursuing me for a $10,000 maintenance claim in respect of a child who is about 16.
23. At various times, I have moved around to avoid being chased by creditors or drug dealers, or to avoid being chased by the woman who claims I owe her maintenance. I have moved around because I have never felt attached to one place.
24. In addition, through living on the streets, I turned to crime to survive and associated with people who engaged in criminal activity. I was never caught and have never been charged or convicted of any offences. However, I have always been scared that my past will catch up with me. This is another reason I have moved around a lot and a reason why I do not tell people, especially authorities, where I live.

Employment history

25. At the age of 16, I became a plasterer. I have worked on and off since then and, at times, I have received Centrelink payments.
26. I have always been paid cash for my jobs and have never completed a tax return.
27. I do not have any records of the work I completed in the period 2002 – 2008. I worked approximately 6 months of the year and earned approximately $1250 gross per week that I worked.

Where I lived

28. As stated above, I have never had a stable home life and, for various reasons, have moved around a lot. I do not consider myself as having a fixed address and, for the reasons stated above, have avoided telling people, especially authorities, where I live.
29. Between 2002 and 2008, I lived or slept in a number of different places, including:

(a) ... Jaffah Close Armadale;
(b) ... Berwick Street East Victoria Park;
(c) an address in Redcliffe which I cannot recall;
(d) in my car;
(e) at hotels when I could afford it; and
(f) on Alex’s couch, or in [my son’s] bedroom, when Alex required assistance with the children.
At the addresses referred to in paragraph (a)-(c) above, I stayed with other people. I did not enter into any lease agreements in respect of these properties.
Financial aspects of the relationship
30. I do not own, and have never owned, any property with Alex.
31. I do not have any joint bank accounts with Alex.

32. Alex does not have access to my bank accounts and I do not have access to her bank accounts.
33. Alex and I do not share day to day living expenses. She pays for her own rent and bills and she pays for food for herself and the kids.
34. I bought the car Alex drives (registration HER 8X (sic)). I gave it to her instead of paying maintenance. At the time I bought the car (in 2006), I was being chased for maintenance payments totalling $10,000 from (sic) another woman who had taken $2,000 - $3,000 out of my bank account. I did not want the same thing happening with Alex so I offered to let her drive the car instead.
35. In the period 2002 to 2008, I obtained a Westpac credit card and a Coles Myer store card. Alex was the secondary card holder for these accounts. When I made the application for the credit card and store card, I was asked whether I was married. I was told that it would look better on my application if I indicated I was married. Alex had a bad credit rating and could not get a credit card. She was struggling financially. I was concerned about this because of the children. Since I believed it was going to help my own application and it would be beneficial to the children, I asked for Alex to be a secondary card holder for these accounts. Alex only used these cards to make purchases for the children and then repaid them straight away.

Nature of the household

36. I take some responsibility for caring and supporting the children. Because I did not have a stable family life and my parents were not there for me, I am determined to be there for my kids and to try to give them some of the things I did not have.
37. Alex runs her own household including paying the rent and the bills. She also does all the housework when I am not there.
38. When I am at Alex’s house, or staying overnight because she requires assistance, I will help with the housework. This is only when Alex is completely incapacitated due to her physical and mental conditions. I refer to my comments at paragraphs 47-50 below. I help out with the housework because the children suffer if I do not help out.

Social aspects of the relationship

39. Alex and I do not go out as a couple together.
40. My social life consists of going to the casino, and doing other things, which do not involve Alex.
41. I do not know what, if anything, Alex does for a social life.
42. In May 2005 Alex and I went to Malaysia. When Alex told me she was going on a holiday, I got angry and threatened that I would take the children and disappear if she did not take me with her. Although we were separated at the time I felt that I was entitled to something because of all that I had been through with her including the volatile relationship we had had when we were married and all the work I had to do with the children since we had split up because of her problems. I do not believe Alex wanted to take me to Malaysia but felt that she had to because of the threat I had made in relation to the children.
43. The trip to Malaysia was the only holiday I have ever been on in my life.

Sexual relationship

44. In around September 2002, I started seeing another woman while I was still with Alex. This lasted about two weeks.
45. Between 2002–2008 I went to prostitutes every couple of months for sex.
46. I had sex with Alex about 5 times between 2002 and 2008.

Nature of the people’s commitment to each other

47. I am in Alex’s life because of the children. If we did not have children, we would have nothing to do with each other.
48. If Alex were able to look after herself and the children full time, there would be no need for me to be at the house so much or for me to stay overnight.
49. Alex has a number of mental conditions. She takes medication for depression and ADHD. She has also been diagnosed with bipolar disorder. Alex’s mood is very up and down. When she is good, she is fine. However, she will disappear into her bedroom for days at a time. She will complain of headaches and of not feeling well. She will not say much. When she is unwell she does not look after herself or the children. She is unable to do anything. She might cry hysterically or she might be silent. I know she loves the children but she does not look after them when she is like this. These are the times when I have to look after the kids.
50. If I could do it all again, I would not have anything to do with Alex. We are different people and cannot get along with each other.”
    
34. In his oral evidence Mr Falkingham, in response to para 8 of Helen Hawke’s statement of 30 April 2007 (T52 – see paragraph 36 below), said that he weighed 60–70 kgs and that his hair is black and he added that his weight and hair colour are the same as they were in 2002–2004.
35. In cross examination Mr Falkingham gave evidence to the following effect:
    • he provided financially for the applicant and the children from 2000 to September/October 2002, but not after that unless the children “asked for something” and he would provide it;
    • in the period from October 2002 to 2008 he “often” went to see the children where they were living with the applicant, and he sometimes stayed overnight;
    • instead of paying maintenance to the applicant, he makes the monthly payments (initially $996, now about $500) on the Holden car which the applicant drives but which he still owns;
    • he “cut off the arrangement” whereby the applicant was authorised to use his credit card accounts (see para 35 of his above statement) “within 6 months”;
    • when the applicant was living in Oriana Street, Belmont in 2002–2004 he was working in mining on a fly in / fly out basis, and he would leave some of his clothes at that house;
    • when the applicant won $75,000 in Lotto (in April 2005) he “wanted a share” as he felt “entitled because [they] were still married” and, when the applicant told him she was going on a holiday to Malaysia, he threatened to take the children if the applicant went without him;
    • he and the applicant went to the Jimmy Barnes concert (in August 2005) with a “couple of mutual friends” to give the applicant “a night out because she was having a hard time”;
    • he goes to the casino, as does the applicant, but “never together”, and their ATM withdrawals at the casino on the same days were “coincidences”;
    • when he applied to Centrelink for a Health Care Card in June 2004, he indicated in the claim form that he was “single (never married)” but he should have instead indicated that he was “separated”;
    • when he applied for a Westpac “Altitude Gold” credit card in April 2006, he falsely stated that his gross annual income was $131,322 and his net monthly income was $7000 in order to obtain the card.”

THE EVIDENCE OF HELEN HAWKE

36. Ms Hawke confirmed that she had made and signed a statement, dated 30 April 2007, in this matter. That statement is as follows:

“ 1. This statement, made by me, accurately sets out the evidence which I am prepared, if necessary, to give in court as a witness.

2. My name is Helen Karina HAWKE. I reside in Floreat, Western Australia. I am currently employed as a Sales Assistant and I am also a Property Investor/Manager on a part-time basis. I am 46 years of age.
3. In 1996, I acquired the property located at ... Oriana Street, Belmont jointly with a Mr N M ..., with the intention of renting it out. From 24 October 2002, I became the sole owner of that property.
4. I can state that Ms Alexandra HARVEY took occupancy of ... Oriana Street, Belmont from 26 October 2002. Her tenancy ended on 31 July 2004.
5. On a couple of times Alex HARVEY would call me to speak to me about maintenance around the house, therefore I’ve had to visit the property on several occasions to inspect the problem. When I was over, Troy FALKINGHAM would quite often be present at the property and, from what I could see, he had his belongings there and was residing at the property.
6. I recall that when Ms HARVEY first viewed ... Oriana Street, Belmont with me, she represented herself as Alex Falkingham, but on the Application for Tenancy she gave her name as Alex HARVEY. She said she ‘wanted it under her maiden name’.
7. Ms HARVEY told me that her husband and her children would be living with her at ... Oriana Street, Belmont, and that her husband would be working away from home, at the mines or something.
8. I recall that Ms HARVEY's husband, Troy FALKINGHAM, was about six foot tall, of medium or solid build, and had brown hair with a beard or goatee.
9. Initially, Ms HARVEY was good at keeping up with the rent, and she paid rent directly into my bank account. After a while, she started to fall into arrears with the rent, and had mentioned something to me about her husband being out of work.
10. I visited the property on a few occasions, to chase up amounts of rent owed, and observed that Ms HARVEY had had another child. She advised me that it was her husband’s, Troy FALKINGHAM’s, third child. It was from approximately this time Ms HARVEY got more and more behind in rent.
11. I also recall that Ms HARVEY mentioned at some point that Troy had bought her a white car, and I made a note that it was a white Mitsubishi sedan, with the registration number ..., and filed the note with my rental records.
12. Ms HARVEY told me several weeks before she moved out of ... Oriana Street, Belmont, that she was moving out due to her splitting up with her husband, Troy FALKINGHAM, but I was not convinced that this was the truth. She also told me that she had taken out a Violence Restraining Order against Troy, and that she would be moving out so he could not find her. She made me promise not to advise Troy where she moved to.
13. Ms HARVEY said that she had obtained another property to rent, and would pay me the rent money she owed me as soon as possible. I arranged to meet her at my property at ... Oriana Street, Belmont on Sunday, 1st August 2004.
14. Ms HARVEY then sent me a text message saying that the property keys were in the meter box. When I entered the house, she had left me a note. I have attached a copy of this note to this statement as Appendix 1.
15. I also attach to this statement, as Appendix 2, a copy of my Landlord’s copy of Form 1 – Record of Payment of Security Bond, that shows Ms HARVEY paid $500 Security Bond on 6 November 2002 for her tenancy at ... Oriana Street Belmont that commenced on 26 October 2002.
16. I visited the property ... Agonis Place, Forrestfield where Ms HARVEY had moved to on a couple of occasions, to try and chase up the unpaid rent, and on one occasion Troy answered the door. He told me that he was ‘just looking after the kids while Alex is visiting her mum’.
17. Ms HARVEY also told me that she was sick with women’s problems, and had to have a hysterectomy or similar procedure, but I was again sceptical. Several months after Ms Harvey moved out I received a call from a medical practice, asking if I knew where she was.
18. I ended up taking Ms HARVEY to court in order to try and recover unpaid rent and other costs from her tenancy, however, she still owes me money to this day as, when we attended court she told the magistrate that she was unable to pay the full amount, but would pay small weekly amounts of $50 as she had to pay off Troy’s car loan, child care fees as one of her child (sic) has ADHD, and also other outstanding debts from other government agencies. She made two payments of $50 for two weeks, and ceased paying me after that. I’ve tried several times to contact her, but with no success.
19. I am confident I would be able to physically identify Ms HARVEY and Mr FALKINGHAM, should I be required to, in court.

...” (T52 (including attachments))

37. In the course of her evidence Ms Hawke identified Troy Falkingham, who was then in attendance in the hearing room, as the male person whom she had seen at the Oriana Street property and the Agonis Place property (as referred to in her above statement).
38. Ms Hawke said that she visited the Oriana Street property “at least half a dozen times” during the applicant’s tenancy because of reports by the applicant that something was not working. She said that the duration of each visit was between 20 minutes and one hour. She said that, during a visit, Mr Falkingham had been introduced to her by the applicant as “Troy”.

ADDITIONAL STATEMENTS

39. Two handwritten letters, addressed “To whom it may concern”, one signed by Victoria Harvey, the other signed by Leanne Cutting, appear in the T Documents. Neither Ms Harvey nor Ms Cutting was called as a witness by the applicant or required for cross-examination by the respondents.
40. Ms Harvey’s letter (undated) states as follows:

“ Alexandra Falkingham (nee Harvey) is my only child. Alex and I are very close and we keep in contact as much as possible. I spend most Saturdays with Alex and my three grandchildren.
Alex and Troy have been separated for the past 5-6 yrs after a very turbulent marriage.
My daughter, Alex, has been very unwell for many years now. She has been diagnosed with adult ADHD and is also on very strong medication for depression. As well as having hormonal problems resulting in surgery and hospitalisation. Alex has been very unhappy for many years now, and her marital problems have added to her depression and sad state of mind.
Alex and Troy have not been living together as man and wife since around the time ... (the youngest who is now 6 years old) was born. On many occasions Alex has had to ask Troy for help with the children, as I work full time and haven’t been able to help very much. Troy has had to make sure the children are cared for when Alex hasn’t been well.
Troy lives at his brother’s house in Armadale and at times has had to stay over in Forrestfield to make sure the children get to and from school when Alex isn’t able due to illness.
I have known Troy for over 10 yeas now, and I have found him to be a loving and caring father and he has made a great effort to help with the children at the times when Alex has needed help.
Alex has no other immediate family here in WA and when Alex has needed assistance, and I have not been able to help because of my own commitments, Troy has been the only person who Alex can rely on and trust to help at those times.
...” (T82, pp 1013–1014)

41. Ms Cutting’s letter, dated 20 June 2008, commences by stating that she has lived in Agonis Place, Forrestfield (the street number indicating that she lives next door to the applicant) with her 3 daughters for the past 2½ years, and continues:

“ In 2½ years I have become a good friend and more importantly a carer for the children, as I have over 2½ yrs experienced Alex, to be that ill, that she is unable to take care of herself, or her children, as she can’t get out of bed. I have to check on Alex and get the children off to school, and it is a common part of Alex’s life, ‘SUFFERS ALONE’. There are times when a cpl of days Alex has not enough energy to get out of bed, when the children’s father comes to visit, I asked him for his phone number, as I am not always available to help Alex and children, and I know I am the only friend that enters the house. Troy the father, calls in every now and then to see the children, he once asked me to keep an eye on Alex and family as he does worry, knowing Alex’s illness prevents her from taking care of children and herself, he lives in Armadale, works, has his own life, but worrys, which is understandable as there is no one that visits, and if I’m not there, there’s no one. I have called Troy on a number of occasions to come and take care of the children, as two have ADHD and left to their own accord, can be dangerous in every way.
I’m concerned for Alex, as she is a great mother, friend, and usually the first to help. I have seen Alex deteriate over the last cpl of months, as her life has come crashing down.
As a good citizen and good friend and carer, this mother struggles on her own like myself to give her children a life they should have. As Troy lives a bit of a distance away, works full time, and lives his own life, rarely gets a chance to visit, I am concerned for Alex, and the children, as I am the only one there, my eldest daughters help Alex out with housework and children as we’ve all noticed Alex is of late, not only stress, but medically, is deteriating. I will vouch that every word I have written is correct, as I honour my word and have hands on experience for quiet a while at home and the children’s school.” (sic) (T82, pp 1015–1016)

MEDICAL AND PSYCHOLOGICAL EVIDENCE

42. The applicant tendered in evidence the following reports:
    • a report of Dr Timothy Chappell, dated 14 April 2010 (Exhibit A8);
    • a report of Dr Rosemary German-Belmont, dated 10 April 2010 (Exhibit A9);
    • a report of Dr German-Belmont, dated 24 October 2010 (Exhibit A10).
43. Dr Chappel’s report states as follows:

“ ...
Alexandra Harvey has been coming to Fulham General Practitioners since 2001. I have been seeing Alexandra Harvey since the 21 March 2003. Since that time I have been seeing Alexandra regularly, approximately 10 times a year.
Alexandra Harvey has suffered from post natal depression. When I first saw her she had been undergoing treatment for the same, following the delivery of her third child. She was taking Zoloft 200 mg per day.
I felt that she also had an anxiety problem in a background traits of Cluster B personality disorder. After a review by the psychiatrist Dr Mustac she was diagnosed with Adult Attention Deficit Disorder and commenced on dexamphetamine. Dr Mustac became unavailable and Alexandra then saw Dr Ernest De Jong. Dr De Jong made the diagnosis of Attention Disorder with Bipolar spectrum disorder group of illnesses.
Throughout this whole time Alexandra has remained on 200 mg of Zoloft and dexamphetamines.
Most of her consultations are revolving around her psychiatrist (sic) state and her renal (kidney) problems. In 2005 she was developing current infection of her kidneys (pyleopephritis). The recurrent infections have been bought (sic) under control. Her psychiatric symptoms intensified.
I believe the effect the Centrelink investigation that has been going on for some years has had a profound effect on Alexandra.
Before the investigation she saw me generally for prescriptions for stable and on going problems. Since that time there has been an overwhelming picture of anxiety and distress. She has been in a continuing state of agitation and often saying that ‘she is losing her mind’ and displays a picture of someone in acute anxiety. She is particularly vulnerable to this given her past psychiatric history. The pressure for Alexandra is being intense and borne out medically by her anxiety and has required long appointments on each occasion.
Currently these legal problems appear to be coming to some sort of closure and Alexandra appears more stable and has been stable on her current medications for some time.
I believe she can care for her children as a full time parent in her current state, however she is in need of significant support. Most of this support comes from her husband Troy. In the past she has repeatedly told me she has needed her husband Troy even though he does not live with her. They have been separated for some years but Troy continues helping out at home whilst she was dealing with her anxiety and depression.
I believe that Alexandra’s mental condition does require her to have support on a day to day leaving task (sic) in relation to her children. This support does come from the children’s father, who continues to play his role in caring for his children.
...”

44. Dr German-Belmont, Clinical Psychologist, stated, in her report of 10 April 2010, that the applicant had attended 6 sessions with her in March 2010, and she responded to the matters requested by the applicant’s legal representative as follows:

“ ...
3 Your opinion as to Ms Harvey’s current psychological state
Psychometric tests incorporated in the Global Mind Screen were undertaken by Ms Harvey.
These computer-generated psychometric tests are specifically programmed for diagnosis and treatment of psychological disorders, using criteria from DSM-IV (Diagnostic and Statistical Manual of Mental Disorders, fourth edition).
Results of Ms Harvey’s Psychometric Tests from the GMS
Ms Harvey undertook the GMS computer-generated psychometric tests.
The results of the psychometric tests indicated that she had suffered from Mood and Anxiety Disorders for years, as well as Attentional, Substance-related and Impulse-control disorders for years.

1. The Mood disorders consisted of Major Depression and Bipolar Disorder at a severe level, for years.
2. The Anxiety Disorders consisted of Generalised Anxiety Disorder, Obsessive Compulsive Disorder (OCD), and Panic Disorder at a severe level for years, and Post Traumatic Stress Disorder (PTSD), more than two years ago.

100. The Attentional disorder consisted of Attention-Deficit Hyperactivity Disorder (ADHD) at a severe level for years.

4. The Substance-related disorder consisted of Nicotine Dependence at a severe level for years. There was also a past history of Cannabis, Amphetamine and Cocaine Dependence.
5. The Impulse-control disorder consisted of Pathological Gambling at a severe level for years.
6. There was also a severe addiction to the Internet for months.

Her GP (Dr Tim Chapell) has diagnosed her with ‘depression – initially post-natal depression – in a background of anxiety, attention deficit disorder and bipolar spectrum disorder’.
My clinical observations of Ms Harvey would confirm the above diagnosis of Depression and Anxiety (described as Generalised Anxiety and Major Depression in the GMS.)
Her self-reports described a very unstable childhood, moving around from house to house in Victoria, and then similarly when she and her mother came to WA. She had no siblings and her mother seemed to have had very disruptive relationships with at least four men, the first of which was Ms Harvey’s biological father who lived in Collie, WA.
Ms Harvey was sent to live with her father when her mother could not cope with her rebelliousness (‘smoking dope, and hanging out with unsuitable friends’). Her father (an Army man, with strict ideas) did not welcome her and sent her back to her mother after a few months.
Ms Harvey said that her mother allowed her to smoke cannabis when she was 14 years old, but later forbade her to. However, Ms Harvey says she continued to smoke cannabis, regardless.
Ms Harvey told me that she never could predict what mood her mother would be in, and what strange behaviour her mother would indulge in. She told me her mother was later diagnosed as a schizophrenic, and was put on medication after Ms Harvey left home.
Ms Harvey told me she met Mr Troy Falkingham when she was about 19 years old, and whom she later married. She told me that the marriage got off to a very bad start, as her mother-in-law did not like her, and organized the whole wedding without consulting Ms Harvey at all. On the wedding night she and her new husband quarrelled for eight hours, and that appears to have set the tone for their marriage.
Ms Harvey said that Mr Falkingham also did not have a happy childhood, as he was picked on at school and teased about his mother being a lesbian. She thinks he is very irresponsible and immature, and has never held a job for a decent length of time.
Ms Harvey says that he has not made her feel secure or stable, but has been a help with looking after the three children. However, she said that she does not think he was very good at looking after the children as he smoked cannabis at that time. However, she had no other person to turn to, as her mother was not on medication at that time, and she could not trust her behaviour. She did not get on at all with her mother-in-law and so would never ask her for help. She has no siblings or even close friends, so her only recourse was to ask her estranged husband to help with the children, because she knew that they would be put in foster care otherwise.
Ms Harvey also outlined the following symptoms:-
a) panic attacks
b) sleep deprivation
c) physically fatigued
d) feels depressed
e) irritability/outbursts of anger
f) difficulty concentrating
g) hypervigilance
h) decreased range of emotions
i) decreased interest in significant activities
j) feelings of detachment from others
k) loss of motivation
l) general agitation and muscle tension.
All these symptoms would confirm the mental conditions already diagnosed by her GP.
Given Ms Harvey’s unstable childhood and her traumatic marriage, my final diagnosis would be that Ms Harvey suffers from Anxiety and Depression Disorders (as described before), as well as ADHD, OCD with Dependency behaviours (all seen in the GMS results).

4. Your opinion as to whether Ms Harvey has in the past, or now, an inability to care for her children as a full-time parent

In my opinion, Ms Harvey would not be emotionally capable in the past, or now, of being a full-time parent to three young children, given the degree of care and attention this would have entailed.
The mood and anxiety disorders alone would impose an inability to care for her children on a day-to-day basis. The ADHD would make it hard for her to concentrate for too long and her obsessional thoughts engendered by the OCD would also hinder prolonged concentration. Her panic attacks that she says are triggered by a phobic fear of crowds also make it difficult for her to go shopping.
However, now that her three children are older (10+ years old, 9 years old and 7 years old respectively), if she

• has a re-assessment of her medication (which is either not appropriate, or she is not wholly compliant)
• undertakes pertinent psychotherapy
• and if her estranged husband helps out,

she would most likely be as good as the average parent.

5. Your opinion as to whether Ms Harvey’s mental conditions require her to have a support for day-to-day living tasks in relation to the children

Ms Harvey’s present mental condition requires support for day-to-day living tasks in relation to the children. For example she says that she finds it difficult to get out of bed on many days due to the depression she suffers from. She also stated that she has no motivation to do anything, but can eventually force herself to do the minimum that is required. If the depression is part of the Bipolar Disorder, this would certainly have a crippling effect on her.
(Also see 4 above.)
In fact I think this would be necessary until Ms Harvey’s mental health is in a better state. This would entail getting a psychiatric assessment for medication and then psychotherapy sessions.

6. Your opinion as to the effect that the Centrelink investigation, the civil appeals and the fear of criminal prosecution are having on Ms Harvey’s current mental conditions. In particular, are Ms Harvey’s mental conditions exacerbated by these matters?

As explained ... before, Ms Harvey’s current psychological condition appears to be severely compromised, due to her unstable childhood and later her traumatic relationship with Mr Troy Falkingham.
When Centrelink started their investigation, this would have made Ms Harvey more vulnerable to sustaining further severe psychological injury. This further traumatisation with the fear of criminal prosecution would almost certainly have exacerbated Ms Harvey’s mental condition.” (original emphasis)

45. In her report of 24 October 2010 Dr German-Belmont confirmed that, in her opinion, the applicant suffers from bipolar disorder, and she set out her recommended treatment for the applicant, and the cost of such treatment, as follows:

“ The first step I would suggest in Ms Harvey’s treatment would be to send her to a Consultant Psychiatrist for an assessment to confirm the diagnosis of bipolar disorder, and its possible cause/s. The Consultant Psychiatrist would then prescribe appropriate medication (eg mood stabilisers).
Nature of the treatment
As far as psychotherapeutic treatment is concerned, the major goal here would be remedial help in stopping Ms Harvey from smoking marijuana, if this is an on-going behaviour.
Other goals of the treatment (apart from appropriate medication) would then be to develop more adaptive responses to stress, and increase compliance to medication by cognitive behavioural therapy, interpersonal therapy and psychoeducation.
The literature recommends that these treatments should normally be provided on an individual out-patient basis.
Since chronic disability, significant co-morbid disorders and social problems are present, the literature suggests a period of five years for treatment to be effective.
Thus using the above as guidelines a good treatment plan could be devised, maybe as follows:-
a. Diagnosis by a Consultant Psychiatrist.
b. Remedial treatment if necessary, for stopping her smoking marijuana.

100. Ms Harvey then could attend psychological sessions on a weekly or fortnightly basis for the next six months, after which her condition be reviewed with a view to the appropriateness of monthly sessions for a further six months.

4. During this time, Group Therapy could be introduced. This would provide a support group for Ms Harvey, as she has never had any social support.
5. After this, a similar review should occur to assess if bi-monthly sessions would be sufficient – for another six months.
6. Thus after eighteen months of treatment, further sessions at three-month intervals should then be undertaken over the next 2 to 5 years, depending on her progress.
7. I would suggest that, in view of Ms Harvey’s present mental condition, she would require support for day-to-day living tasks in relation to the children. As I explained in my last report, Ms Harvey does not have sufficient motivation to get out of bed on many days to do anything, due to the depression she suffers from. Thus this would be a necessary step.

Cost of the Treatment
The Australian Psychological Society recommends $212 per individual session and $55 for Group Sessions with a Clinical Psychologist. There is a Medicare rebate of $117.65 per individual session, and a rebate of $29.90 for Group Therapy, if the patient has a Mental Health Care Plan, Item no 2710 made out by a GP.”

46. Neither Dr Chappell nor Dr German-Belmont was required for cross-examination by the respondents, and their above reports were tendered by consent.

OTHER RELEVANT EVIDENCE

47. There is much additional relevant material contained in the T Documents and the Tribunal will refer to that material in the course of the analysis below.

THE CREDIBILITY OF THE APPLICANT AND MR FALKINGHAM

48. The respondents put in issue the credibility of the applicant and Mr Falkingham, and submitted that the Tribunal should “approach [their] evidence with a degree of caution”, having regard, in particular, to the following considerations:
    • the applicant failed to inform Centrelink of her de facto relationship with Mr Falkingham in 2000 and their subsequent marriage on 27 January 2001, while continuing to receive parenting payment at the single rate;
    • the applicant failed to inform Centrelink that she had ceased to pay private rent in March 2002, while continuing to receive rent assistance;
    • the applicant failed to inform Centrelink of her lottery prize of $75,000 in April 2005;
    • the applicant failed to inform Centrelink of her trip to Malaysia in May 2005 but subsequently falsely informed Centrelink on 3 January 2007 that she “went by herself and did not go with anyone else” (T45);
    • Mr Falkingham grossly overstated his income ($131,322 (gross) per annum, $7,000 (net) per month) in his application to Westpac for an “Altitude Gold” credit card in April 2006 (T54, pp 751, 765).
49. Having observed the applicant and Mr Falkingham give their evidence, and having considered the content of their evidence in the context of the whole of the evidence in this matter (including the instances of deceitful conduct referred to in the preceding paragraph), the Tribunal has serious reservations about the reliability of their evidence – in particular, their evidence regarding the nature of their relationship during the relevant period – and it is of the opinion that their evidence is coloured by, in particular, their interest in minimising the amount of any debt owed by the applicant to the Commonwealth by reason of an overpayment of social security benefits during the relevant period.
50. In these circumstances the Tribunal regards it as appropriate, in analysing and assessing the evidence before it for the purpose of forming an opinion about the nature of the relationship between the applicant and Mr Falkingham – in particular, an opinion as to whether or not the applicant was “living separately and apart from [Mr Falkingham] on a permanent or indefinite basis”, within the meaning of s 4(2)(a) of the SS Act – in the relevant period, generally to place greater weight and reliance on the relevant objective or independent evidence before it when the evidence of the applicant and/or Mr Falkingham is, or appears to be, inconsistent with that evidence.

ANALYSIS

Was the applicant a “member of a couple”, for the purposes of the SS Act and the FA Act, in the relevant period?

51. The applicant was for the whole of the relevant period, and continues to be, legally married to Mr Falkingham and, accordingly, the question whether she was a “member of a couple”, for the purposes of the SS Act and the FA Act, in the relevant period is, in accordance with s 4(2)(a) of the SS Act (and s 3(1) of the FA Act), to be answered by determining whether or not she was “living separately and apart from [Mr Falkingham] on a permanent or indefinite basis” in the relevant period.
52. In forming an opinion about the relationship between the applicant and Mr Falkingham, for the purposes of s 4(2)(a) of the SS Act, in the relevant period, the Tribunal is required, by s 4(3) of that Act, to “have regard to all the circumstances of the relationship” including, in particular, the matters and factors referred to in paras (a)–(e) of s 4(3). The Tribunal will now consider those matters and factors having regard to the whole of the evidence before it.

The financial aspects of the relationship

53. There is no evidence before the Tribunal that, in the relevant period, the applicant and Mr Falkingham jointly owned any real estate or other substantial assets, held any joint accounts at banks or other financial institutions, or had any joint liabilities or legal obligations. Nor, on the other hand, is there any evidence that either the applicant or Mr Falkingham individually owned any real estate or other substantial assets (with the exception of the motor vehicles owned by Mr Falkingham referred to in the next paragraph).
54. Although, according to information provided by the Department for Planning and Infrastructure (T29), Mr Falkingham was the registered owner of 2 motor vehicles (namely, a 1996 Mitsubishi Magna sedan registered on 19 November 2001, and a 2004 Holden Adventura station sedan registered on 24 March 2006) in the relevant period, the evidence of the applicant and Mr Falkingham was to the effect that the applicant drove the Magna until 2006 and that she has driven the Adventura since it was purchased by Mr Falkingham in March 2006. Although the applicant and Mr Falkingham said that they had agreed that he would give her the use of the Adventura instead of paying her maintenance/child support, the Tribunal notes that periodic payments to Esanda Finance Corporation (which financed Mr Falkingham’s purchase of the Adventura – T53) were debited to the applicant’s account with the Commonwealth Bank of Australia from May 2006 to December 2009 (T49 and Exhibit R8). The Tribunal also notes, however, that payments to Esanda Finance Corporation were debited to Mr Falkingham’s account with Westpac Banking Corporation in the period November 2006 – March 2007 (see T55, pp 786, 790, 791, 794). Likewise, the Tribunal notes that payments to GE Automotive Financial Services (which financed Mr Falkingham’s purchase of the Magna – T32, p 447; T52) were debited to the applicant’s Commonwealth Bank account on 27 December 2002, 28 September 2005, 1 February 2006, 29 May 2006, 26 June 2006 and 27 July 2006 (T49, pp 627, 679, 686, 691, 692, 694), but were debited to Mr Falkingham’s Westpac account on 27 February 2006, 27 March 2006, 26 April 2006, 7 November 2006 and 29 November 2006. (T55, pp 777, 780, 781, 785, 786).
55. The Tribunal is satisfied that, during the relevant period, there was ongoing financial cooperation between the applicant and Mr Falkingham in respect of making payments on the relevant car loans entered into by Mr Falkingham and that they were sharing the costs of the Magna and Adventura cars. The Tribunal does not accept the applicant’s evidence that Mr Falkingham gave her the money for her to make the various payments to GE Automotive Financial Services and to Esanda Finance Corporation out of her bank account. Nor does the Tribunal accept the evidence of the applicant and Mr Falkingham that he gave her the use of the Adventura instead of paying her maintenance/child support.
56. Further evidence of financial cooperation between the applicant and Mr Falkingham in the relevant period may be seen in their use of credit cards. On 10 April 2006 Mr Falkingham opened a Westpac MasterCard account. In his application Mr Falkingham gave his address as Agonis Place, Forrestfield and the applicant (referred to as Alexandra Falkingham, also of Agonis Place, Forrestfield) was included as an additional cardholder on Mr Falkingham’s account (T54; T55, p 766). Similarly, on 3 August 2006 Mr Falkingham opened a Coles Myer Source MasterCard account, in his application for which he gave his current address as Agonis Place, Forrestfield and his previous address as Oriana Street, Belmont, and he requested an additional card for “Mrs Alexandra Falkingham” (T42, p 484). Account statements provided by Westpac show that the Westpac credit card was used frequently in the period from April to September 2006 (but much less so thereafter when “missed payment charges” began to be imposed), and included periodical payments to “Cuddles” (which, the Tribunal understands, were for childcare) (T55, pp 797–807). The Tribunal notes that Mr Falkingham assumed liability for expenditure incurred by the applicant in using the abovementioned credit cards, and it does not accept the evidence of the applicant and Mr Falkingham that the applicant paid Mr Falkingham for all purchases made by her using those credit cards.
57. The use which the applicant made of her lottery prize of $75,000 in April 2005 is, in the Tribunal’s opinion, also indicative of financial cooperation and sharing between her and Mr Falkingham. Although the Tribunal is unable, on the evidence before it, to determine precisely how the entire amount of $75,000 was spent, it seems that a significant part of it was spent on a 14-day holiday (4–17 May 2005 – see T39, pp 461–464) in Malaysia for the applicant and Mr Falkingham. Although the applicant claims that she spent only about $3,000 on Mr Falkingham, and the rest on herself and the children, she provided no details of that expenditure. Mr Falkingham said in his evidence that he “wanted a share” of that money and felt that he was so entitled because he and the applicant were still married, and the applicant acknowledges that she spent about $3,000 of it on Mr Falkingham, including paying for his holiday with her in Malaysia. The Tribunal regards the applicant’s evidence, that the only reason she took Mr Falkingham with her to Malaysia was because he had threatened to take the children in her absence if she went without him, as implausible and it does not accept that evidence. In the Tribunal’s opinion, a more credible explanation is that the applicant wanted Mr Falkingham to accompany her to Malaysia, if only to provide physical support and security, as well as companionship, although the Tribunal notes, in this connection, the applicant’s evidence to the SSAT that, while in Malaysia, they shared a hotel room (T2, pp 23, 24).
58. As regards day-to-day household expenses, the evidence of the applicant and Mr Falkingham was that the applicant pays her rent, bills and the cost of food for herself and the children, and that they do not share such expenses. The Tribunal is prepared to accept that the applicant, in the performance of her home duties, attended to the payment of general household expenses in the relevant period but, in the Tribunal’s opinion, the financial support provided by Mr Falkingham substantially contributed to her capacity to pay such expenses in that period.
59. In the Tribunal’s opinion, the abovementioned financial cooperation and financial interdependence between the applicant and Mr Falkingham – including their arrangements for paying off the 2 motor vehicles owned by Mr Falkingham and for the use of those motor vehicles, their arrangements for the use by the applicant of Mr Falkingham’s credit cards, and the use made by the applicant of her lottery prize for the mutual benefit of herself and Mr Falkingham – in the relevant period suggest that they were not “living separately and apart” (within the meaning of s 4(2)(a) of the SS Act) from each other in that period. It seems to the Tribunal that the general nature of the financial relationship between the applicant and Mr Falkingham in the relevant period was similar to that which existed in the period of approximately 2 years immediately prior to the relevant period, when (it is common ground) they were living in a de facto, and subsequently marital, relationship. Accordingly, in the Tribunal’s opinion, there was no significant change in the financial aspects of their relationship at or around the commencement of, or during, the relevant period which should be regarded as indicating that their marital relationship had broken down and that they had commenced to live “separately and apart” from each other “on a permanent or indefinite basis”, within the meaning of s 4(2)(a) of the SS Act.

The nature of the household

60. It is common ground that, during the relevant period, the applicant resided at the following places:
    • from 26 October 2002 to 20 July 2004, at Oriana Street, Belmont (a rental property owned by Helen Hawke); and
    • from 20 July 2004 to date, at Agonis Place, Forrestfield (a rental property owned by Homeswest).

According to her own evidence, she resided at her mother’s house in Drummond Street, Redcliffe for the period 1–26 October 2002 (during which the relevant period commenced on 22 October 2002). It is unclear, from the evidence before the Tribunal, where she was residing in the period immediately prior to 1 October 2002. It appears that in early July 2002 she was residing at Thacker Street, Ocean Grove, Victoria but that she subsequently returned to Western Australia. It is unclear from the evidence when she returned to Western Australia but the Tribunal notes that Centrelink records indicate that her address from 15 July 2002 was in Kaih Court, Pinjarra (Exhibit R6).

61. As regards the place(s) where Mr Falkingham was living in the relevant period, Centrelink records indicate that his addresses in that period were as follows:
    • Oriana Street, Belmont, from 26 October 2002;
    • Berwick Street, Victoria Park, from 14 June 2004;
    • Agonis Place, Forrestfield, from 27 July 2004;
    • Coogee Caravan Park, from 30 August 2004 (Exhibit R6).

Centrelink records also indicate that, in the period immediately prior to the commencement of the relevant period, his addresses were as follows:

• Thacker Street, Ocean Grove (Vic), from 9 April 2002;
• Kaih Court, Pinjarra, from 15 July 2002 (Exhibit R6).

62. Documentary material in the T Documents includes information provided to Centrelink by various Government agencies and other institutions regarding Mr Falkingham’s addresses (as provided by him to those agencies and institutions) in the relevant period. That information may be summarised as follows:
    • in a Tax File Number (“TFN”) Declaration form signed by Mr Falkingham and dated 11 September 2002 his address is stated as Drummond Street, Redcliffe (T51, p 724; T68, p 871);
    • information provided by the Australian Taxation Office that in a TFN Declaration form dated 27 May 2003 Mr Falkingham’s address is stated as Oriana Street, Belmont (T68, p 872);
    • information provided by RAC Insurance Pty Ltd that Mr Falkingham arranged insurance in respect of a 1996 Mitsubishi Magna commencing on 16 March 2003 and that his address was Oriana Street, Belmont (T56, p 818);
    • information provided by the Department for Planning and Infrastructure (WA), regarding the registration by Mr Falkingham of a 1996 Mitsubishi Magna on 19 November 2001 and a 2004 Holden Adventura on 24 March 2006, that his recorded address history (from October 2002) was:
      • - Butson Place, Redcliffe until 11 April 2003;
      • - Oriana Street, Belmont until 8 June 2005;
      • - Agonis Place, Forrestfield from 8 June 2005 (T29);
    • information provided by the Australian Electoral Commission that its last recorded address for Mr Falkingham was Oriana Street, Belmont from 16 April 2003 (T66);
    • information provided by RAC Insurance Pty Ltd that Mr Falkingham arranged fresh insurance in respect of a 1996 Mitsubishi Magna commencing on 17 May 2004 and that his address was Berwick Street, East Victoria Park (T56, p 817);
    • information provided by the ANZ Bank, in respect of an account held by Mr Falkingham from 22 September 2003 to 23 May 2005, that on 17 May 2004 Mr Falkingham’s address was recorded as Berwick Street, East Victoria Park (T48, p 598; Exhibit R11);
    • information provided by the Department of Health (WA), in respect of the applicant’s admissions to hospital, that her nominated next of kin was Mr Falkingham and that their addresses on the relevant dates were recorded as follows:
      • - 25 November 2002 – Oriana Street, Belmont;
      • - 11 March 2003 – Oriana Street, Belmont;
      • - 5 October 2004 – Agonis Place, Forrestfield (T65);
    • information provided by the Department of Immigration and Citizenship, comprising copies of passenger cards completed by the applicant and Mr Falkingham in respect of their overseas travel from 4 to 17 May 2005, which state that their address in Australia is Agonis Place, Forrestfield (T39);
    • information provided by Royal Perth Hospital, in respect of Mr Falkingham’s attendance at 11.50 pm on 14 August 2005 for treatment for an eye injury, that his nominated next of kin was the applicant and that their address was recorded as Oriana Street, Belmont (Exhibit R7);
    • information provided by Western Australia Police Service, in respect of an incident report dated 17 August 2005 regarding an assault at a Jimmy Barnes concert on the previous Sunday night (14 August 2005) involving Mr Falkingham and another male person, that the known address for Mr Falkingham is Agonis Place, Forrestfield (T71);
    • information provided by Westpac Bank on 3 May 2007, in respect of accounts opened by Mr Falkingham on 29 November 2005 and 10 April 2006, that Mr Falkingham’s stated, and currently recorded, address is Agonis Place, Forrestfield (T54; T55);
    • information provided by G E Capital Finance on 30 November 2006, in respect of Mr Falkingham’s Coles Myer Source MasterCard account opened on 3 August 2006, that Mr Falkingham’s stated, and currently recorded, address is Agonis Place, Forrestfield (T42);
    • information provided by Esanda Finance Corporation Ltd on 30 April 2007, in respect of Mr Falkingham’s loan for the purchase of a Holden Adventura car in March 2006, that Mr Falkingham’s current residential address is Agonis Place, Forrestfield (T53).
63. Bank statements in respect of Mr Falkingham’s account with ANZ Bank (T48) and his accounts with Westpac Bank (T55) indicate as follows:
    • his ANZ Bank account was opened on 22 September 2003, was accessed very frequently (usually, several times per week) up until August 2004, and the vast majority of the withdrawals in that period were made by EFTPOS or ATM in the Belmont/Cloverdale area;
    • his “Westpac One” account was opened on 29 November 2005, was accessed very frequently (usually, several times per week) in the period November 2005 to April 2007 (the period covered by the statements), and withdrawals in that period were regularly made by EFTPOS or ATM in various locations, most frequently in Forrestfield and suburbs in the vicinity of Forrestfield (such as Cannington and Maddington).
64. It may be, as the applicant stated in her evidence, that, from the time she and Mr Falkingham commenced living together in late 2000 and throughout the relevant period, Mr Falkingham “came and went” in the sense that he did not remain continuously at any of her places of residence in that period, but the Tribunal is nevertheless satisfied that Mr Falkingham resided with the applicant and their children for substantial periods, at least on an intermittent basis if not on a continuous basis, at each of her places of residence in the relevant period, namely Drummond Street in Redcliffe, Oriana Street in Belmont, and Agonis Place in Forrestfield.
65. The Tribunal notes, however, that, on 17 May 2004, Mr Falkingham advised the ANZ Bank that his address was Berwick Street, East Victoria Park and, on the same date, he arranged fresh insurance in respect of his Mitsubishi Magna with RAC Insurance Pty Ltd and gave his address as Berwick Street, East Victoria Park (see paragraph 62 above). The Tribunal also notes that, on 14 June 2004, Mr Falkingham lodged a claim for a Health Care Card with Centrelink and, on 16 June 2004, he lodged a Newstart Allowance Customer Declaration Form with Centrelink, and in both forms he gave the Berwick Street address as his home address and his postal address (T17; T18).
66. The Tribunal notes, furthermore, that there is a reference in the SSAT’s Reasons for Decision to Australian Federal Police records, according to which a Violence Restraining Order (“VRO”) was issued against Mr Falkingham on 21 May 2004, served on him on 24 May 2004, and revoked on 28 June 2004 (T2, p 27). The Tribunal also notes the reference, in para 12 of Helen Hawke’s statement of 30 April 2007 (T52 – see paragraph 36 above), to the applicant’s having told her “several weeks before she moved out of” Oriana Street, Belmont (on 20 July 2004), that she had taken out a VRO against Mr Falkingham. Unfortunately, however, information provided by the Australian Federal Police, which is in evidence (T60), merely states (relevantly):

“ VRO – Harvey protected from Faulkner (sic) 2004 0190” (T62, p 835)

and information provided by the Western Australia Police Service, which is in evidence (T71), contains no reference to a VRO. Nor did either the applicant or Mr Falkingham refer to a VRO in their evidence. The Tribunal, nevertheless, accepts that the abovementioned information regarding the VRO, contained in the SSAT’s Reasons for Decision, is accurate. It may be that Mr Falkingham’s notification of change of address from Oriana Street, Belmont to Berwick Street, East Victoria Park on 17 May 2004, and the issuing of a VRO against him on 21 May 2004 at the request of the applicant, were indicative of a breakdown in their marital relationship at that time.

67. The Tribunal is satisfied that the applicant and Mr Falkingham have, at all material times, jointly accepted responsibility for providing, and have provided, care and support to the 3 children, although it accepts that the applicant, as the homemaker, has been their primary carer.
68. As regards the times during the relevant period when the applicant and Mr Falkingham physically shared accommodation, the Tribunal, in the absence of relevant objective or independent evidence, is uncertain as the to what their actual living arrangements were, but it accepts that the applicant, as the homemaker, was largely responsible for doing the housework and that Mr Falkingham assisted her when she required such assistance.
69. It seems to the Tribunal that, with the possible exception of the period in May/June 2004 when the abovementioned VRO was in force, the general nature of the applicant’s, and Mr Falkingham’s, household arrangements in the relevant period was similar to that which existed in the period of approximately 2 years immediately prior to the relevant period, when they were living in a de facto, and subsequently marital, relationship. Accordingly, in the Tribunal’s opinion, there was no significant change in the nature of their household at or around the commencement of, or (with the possible exception of the abovementioned period in May/June 2004) during, the relevant period which should be regarded as indicating that their marital relationship had broken down and that they had commenced to live “separately and apart” from each other “on a permanent or indefinite basis”, within the meaning of s 4(2)(a) of the SS Act.

The social aspects of the relationship

70. There is objective or independent evidence before the Tribunal indicating that, in the relevant period, the applicant and Mr Falkingham each held themselves out to third parties as married to, rather than separated from, each other. That evidence includes the following:
    • information provided by the Department of Health (WA) comprising Bentley Health Service documents which record that, on 25 November 2002, 11 March 2003 and 5 October 2004 when the applicant was admitted to Bentley Hospital, her next of kin was named as “Troy Falkingham, Spouse” of the same address (T65);
    • information provided by Royal Perth Hospital including Emergency Department Registration Record which records that, on 14 August 2005 when Mr Falkingham attended for treatment to his eye, his next of kin was named as “Falkingham, Alex, Spouse” of the same address (although Mr Falkingham’s marital status is recorded as “S”) (Exhibit R7);
    • the evidence of Helen Hawke (see paragraphs 36–38 above).
71. The Tribunal notes, on the other hand:
    • the (undated) letter from Victoria Harvey (the applicant’s mother) in which it is stated that the applicant and Mr Falkingham “have been separated for the past 5–6 years” and “have not been living together as man and wife since around the time“ their youngest child was born (namely, November 2002) (see paragraph 40 above);
    • the letter from Leanne Cutting, dated 20 June 2008, in which it is intimated that Mr Falkingham does not reside at Agonis Place, Forrestfield with the applicant (see paragraph 41 above);
    • the report of Dr Timothy Chappell dated 14 April 2010, in which it is stated that the applicant has “repeatedly told [him] that she has needed her husband Troy even though he does not live with her” and that “they have been separated for some years...” (see paragraph 43 above);
    • the report of Dr German-Belmont, dated 10 April 2010, in which Mr Falkingham is described as the applicant’s “estranged husband” (see paragraph 44 above).
72. Although the applicant and Mr Falkingham both testified that they “do not go out as a couple together” and do not have a “social life” together, there is evidence before the Tribunal which indicates that they did engage in joint social activities on certain occasions in the relevant period, namely:
    • their holiday together in Malaysia from 4 to 17 May 2005;
    • their attendance together at the Jimmy Barnes concert on 14 August 2005.

Although the applicant and Mr Falkingham both acknowledged that they attended the Burswood Casino from time to time, they each testified that they never did so together. There is, however, evidence before the Tribunal in the form of bank statements which record that the applicant and Mr Falkingham each withdrew money from their own bank account, either by EFTPOS or ATM, at the Burswood Casino on the following same dates in the relevant period, namely, 21 February 2006 (T49, p 686; T55, p 777), 11 May 2006 (T49, p 690; T55 , p 802), 31 August 2006 (T49, p 696; T55, p 783), and 19 March 2007 (Exhibit R8: T55, p 793). The Tribunal regards it as likely that the applicant and Mr Falkingham attended the Burswood Casino together at least on the abovementioned dates, although it acknowledges that they may each have engaged in different forms of gambling and may not have spent much of their time at the Casino together on those dates. The Tribunal notes, furthermore, that the abovementioned bank statements also record numerous withdrawals by the applicant and Mr Falkingham at the Burswood Casino on different dates in the relevant period.

73. In the Tribunal’s opinion, the objective and independent evidence before it indicates that the applicant and Mr Falkingham continued to present as a married couple and to engage in some social activities together during the relevant period. The Tribunal regards their 14-day trip to Malaysia in May 2005 which:
    • was financed out of the applicant’s recent lottery prize of $75,000;
    • was, according to the evidence of each of them, “the only holiday I have ever been on in my life”; and
    • involved, according to the applicant’s evidence to the SSAT, their sharing a hotel room;

as a very significant event indicating that their marital relationship had not broken down at that time. As previously mentioned, the Tribunal does not accept the applicant’s evidence that the only reason she agreed to take Mr Falkingham with her on that trip was that he had threatened to take the children away from her if she did not.

74. The Tribunal attaches little weight to the abovementioned letters from the applicant’s mother, Victoria Harvey, and her neighbour and friend, Leanne Cutting, neither of whom can be regarded as objective or independent and neither of whom gave sworn evidence in this matter. The Tribunal also attaches little weight to the references in the abovementioned reports of Dr Chappell and Dr German-Belmont to the relationship between the applicant and Mr Falkingham because those references were based entirely on comments made to them by the applicant.
75. Accordingly, the social aspects of the relationship between the applicant and Mr Falkingham in the relevant period do not, in the Tribunal’s opinion, indicate that they were “living separately and apart” from each other on a permanent or indefinite basis”, within the meaning of s 4(2)(a) of the SS Act, in that period.

Sexual relationship

76. Both the applicant and Mr Falkingham acknowledged that they had “had sex” together in the relevant period – according to the applicant “5–6 times”, and “about 5 times” according to Mr Falkingham. The applicant added that she had sex with Mr Falkingham on those occasions “when he was being nice”. Mr Falkingham’s evidence was that he had been “seeing another woman” in about September 2002 (shortly before the commencement of the relevant period), and that he “went to prostitutes every couple of months for sex” during the relevant period. There is, not surprisingly, no objective or independent evidence before the Tribunal which either corroborates or contradicts their evidence in this regard.
77. There is little evidence before the Tribunal regarding the nature of their sexual relationship prior to the relevant period. The Tribunal notes, however, that the applicant has 3 children of whom Mr Falkingham (according to their evidence) is the biological father of the child born in November 2000 and the child born in November 2002.
78. In the Tribunal’s opinion the evidence before it regarding the sexual relationship between the applicant and Mr Falkingham does not indicate that their marital relationship had broken down and that they were “living separately and apart” from each other “on a permanent or indefinite basis”, within the meaning of s 4(2)(a) of the SS Act, in the relevant period.

The nature of the mutual commitment

79. According to the evidence before the Tribunal, the applicant met Mr Falkingham in late 1998, commenced a de facto relationship with him in late 2000, and married him on 27 January 2001, and they have continued to be legally married from that date.
80. The Tribunal is prepared to accept that their marital relationship during the relevant period was turbulent and involved some domestic violence on both sides. The fact remains, however, that neither of them sought a divorce during that period. The applicant’s evidence that she was precluded from seeking a divorce by the expense is, in the Tribunal’s opinion, unconvincing and the Tribunal does not accept that evidence. Nor does the Tribunal accept that the applicant is seriously contemplating a divorce at the present time.
81. Although the applicant and Mr Falkingham each claimed that, were it not for the children, they would have nothing to do with each other, the Tribunal regards that evidence as hypothetical rather than factual. It seems to the Tribunal that, during the relevant period, Mr Falkingham was continually prepared to provide physical and emotional support to the applicant and did provide that support to her, especially when she needed it in times of ill health. Although that support related substantially to caring for the 3 children, in the Tribunal’s opinion it went well beyond what was required for that purpose and it extended to caring for the applicant’s physical and mental welfare.
82. Although there is little evidence before the Tribunal regarding the nature of the applicant’s, and Mr Falkingham’s, commitment to each other in the period of approximately 2 years immediately before the commencement of the relevant period (when, it is common ground, they were “members of a couple” for the purposes of the SS Act and the FA Act), it seems to the Tribunal that the amount of physical and emotional support provided by Mr Falkingham to the applicant actually increased during the relevant period (as compared with the previous 2-year period) as her physical and mental health deteriorated and her need for his support became greater. In short, he was (in common parlance) always there for her when she needed him.
83. It may be that neither the applicant nor Mr Falkingham has ever regarded their marital relationship as satisfactory, but the Tribunal is satisfied that they have, at all material times, considered that that relationship (such as it is) is likely to continue indefinitely. As previously mentioned, neither of them has ever sought a divorce and the Tribunal is not satisfied that either of them is seriously contemplating a divorce at the present time.
84. Accordingly, the Tribunal regards the nature of the applicant’s, and Mr Falkingham’s, commitment to each other during the relevant period as indicating that their marital relationship had not broken down and that they were not “living separately and apart” from each other “on a permanent or indefinite basis”, within the meaning of s 4(2)(a) of the SS Act, in that period.

Conclusion and finding

85. The Tribunal, having considered the whole of the evidence before it relating to the circumstances of the relationship between the applicant and Mr Falkingham – including, in particular, the matters referred to in s 4(3) of the SS Act – during the relevant period, is satisfied that their existing marital relationship did not break down at the commencement of, or during, the relevant period and that they were not “living separately and apart” from each other “on a permanent or indefinite basis” at any time during that period.
86. The Tribunal notes its earlier discussion regarding Mr Falkingham’s notification of change of address from Oriana Street, Belmont (the applicant’s then residence) to Berwick Street, East Victoria Park on 17 May 2004, and the issuing of a VRO against him on 21 May 2004 at the request of the applicant (see paragraphs 65–66 above. Although those events may, as previously mentioned, be regarded as indicative of a breakdown in their marital relationship at that time, the Tribunal, having considered the whole of the evidence before it, is not satisfied that that was the case. The Tribunal notes the evidence given by the applicant to the SSAT that the VRO was never served on the applicant and that she “needed to keep in with him for the children” (T2, p 28), although the SSAT stated that Australian Federal Police records indicated that the VRO was served on 24 May 2004 but that it was revoked on 28 June 2004 (T2, p 27). Furthermore, there is no clear evidence before the Tribunal regarding the precise period for which Mr Falkingham resided at the Berwick Street address (if in fact he did move to that address). Having regard to these considerations, the Tribunal is satisfied that the VRO, and any change of address by Mr Falkingham, were intended by the applicant and Mr Falkingham, respectively, to be merely temporary, rather than permanent or indefinite, and that those events did not signal the breakdown of their marital relationship or the commencement of their “living separately and apart” from each other “on a permanent or indefinite basis”, within the meaning of s 4(2)(a) of the SS Act.
87. Accordingly, the Tribunal finds that the applicant was a “member of a couple”, for the purposes of the SS Act and the FA Act, for the whole of the relevant period.

The applicant owes debts the Commonwealth

88. The Tribunal understands it to be common ground that, in the event of a finding by it that the applicant was a “member of a couple”, for the purposes of the SS Act and the FA Act, in the relevant period, it would follow that she had received overpayments of parenting payment under the SS Act, and overpayments of family tax benefit and child care benefit under the FA Act, in that period, and that the amounts of those overpayments constitute debts due by her to the Commonwealth under, respectively, s 1223 of the SS Act and ss 71 and 71C of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (“FAA Act”). The Tribunal so finds.

Should the debts owed by the applicant to the Commonwealth be recovered from her?

89. The applicant submitted that any relevant debt or debts found to be owing by her to the Commonwealth should not be recovered from her and should instead be waived because of special circumstances, or, alternatively, should be written off, under the relevant provisions of the SS Act and/or the FAA Act.
90. Part 5.4 of the SS Act and Div 4 of Pt 4 of the FAA Act contain provisions dealing with the non-recovery (by way of write off or waiver) of debts which are recoverable by the Commonwealth under those Acts.
91. Section 1236 of the SS Act, which confers the power to write off a debt, provides as follows:

“ 1236(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
1236(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c) the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt.
1236(1B) For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:
(a) the debt cannot be recovered by means of deductions, or legal proceedings, or garnishee notice, because the relevant 6 year period mentioned in section 1231, 1232 or 1233 has elapsed; or
(aa) the debt cannot be recovered by means of deductions or setting off because the relevant 6 year period mentioned in section 86 of the A New Tax System (Family Assistance) (Administration) Act 1999 has elapsed; or
(b) there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(c) the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or
(d) the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt
1236(1C) For the purposes of paragraph (1A)(b), if a debt is recoverable by means of:
(a) deductions from the debtor’s social security payment; or
(b) deductions under section 84 of the A New Tax System (Family Assistance) (Administration) Act 1999; or
(c) setting off under section 84A of that Act;
the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.
...”

Section 1237AAD of the SS Act, which confers the power to waive a debt “in special circumstances”, provides as follows:

“ 1237AAD The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.”

92. Division 4 of Pt 4 of the FAA Act contains relevant provisions, namely, s 95 and s 101, whose terms are similar to those of s 1236 and s 1237AAD, respectively, of the SS Act.

Waiver

93. The applicant submitted that the following constellation of circumstances in her case constituted “special circumstances”, for the purposes of s 1237AAD of the SS Act and s 101 of the FAA Act, namely:
    • her financial position is “dire” and she has 3 young dependent children;
    • she has no assets;
    • she is unemployed and has no employment prospects, being unable to work because of her physical and mental health problems;
    • she has unpaid bills (including medical bills) and has previously received disconnection notices in respect of electricity and gas services and an eviction notice in respect of her Homeswest accommodation;
    • she, and at least one of her children, require ongoing medical treatment and medication.
94. The exercise by the Tribunal of the discretionary power, conferred by s 1237AAD of the SS Act and s 101 of the FAA Act, to waive a debt in special circumstances is, however, conditional upon the Tribunal’s first being satisfied that the debt did not result wholly or partly from the debtor (or another person) knowingly either making a false statement or a false representation or failing or omitting to comply with a provision of the SS Act, the Social Security (Administration) Act 1999 (Cth) (see s 1237AAD(a) of the SS Act), or the “family assistance law” (see s 101(a) of the FAA Act). In the present case the Tribunal is satisfied the abovementioned debts due by the applicant to the Commonwealth resulted wholly from her knowingly:
    • making false statements or false representations, namely, her falsely notifying Centrelink on 28 October 2002 that she and Mr Falkingham had separated on 1 October 2002 and her subsequently falsely notifying Centrelink to the same effect on 27 November 2002 and 8 December 2003 (see paragraphs 20–22 above); and
    • failing to notify Centrelink, during the relevant period, that she was living in a marital relationship with Mr Falkingham, in contravention of the Social Security (Administration) Act 1999 (Cth) and the FAA Act.

In those circumstances para (a) of s 1237AAD of the SS Act and para (a) of s 101 of the FAA Act are not satisfied and, accordingly, the waiver power conferred by each of those sections is not enlivened in this case.

95. The Tribunal is, furthermore, not satisfied that the circumstances of the applicant’s case are of such a special or extraordinary nature as to make it desirable to waive any part of the abovementioned debts due by her to the Commonwealth. Accordingly, para (b) of s 1237AAD of the SS Act and para (b) of s 101 of the FAA Act are also not satisfied in this case.
96. It follows that the abovementioned debts due by the applicant to the Commonwealth cannot be waived, in whole or in part, under s 1237AAD of the SS Act or s 101 of the FAA Act.

Write off

97. The discretionary power to write off a debt under s 1236(1) of the SS Act and s 95(1) of the FAA Act is expressly conditioned on the existence of any one of the alternative circumstances specified in paras (a)–(d) of s 1236(1A) of the SS Act and paras (a)–(d) of s 95 (2) of the FAA Act.
98. There is no suggestion that either the condition specified in para (c) or the condition specified in para (d) of s 1236(1A) of the SS Act, and of s 95(2) of the FAA Act, is satisfied in this case. As regards the condition specified in para (a) of each of those subsections, the Tribunal understands that the applicant continues to be in receipt of social security payments from which the relevant debts can be recovered by deductions and that, in accordance with s 1236(1B) and s 95(3), the debts are, therefore, not “irrecoverable at law”, within the meaning of s 1236(1A)(a) and s 95(2)(a). As regards the condition specified in para (b), the Tribunal understands that the total amount of the relevant debts is very substantial and that the process of recovering that amount by means of deductions from the applicant’s ongoing social security payments is likely to extend over a very long period. Nevertheless, the Tribunal, on the basis of the evidence before it, is not satisfied that recovery of the amount of those debts from the applicant by means of such deductions (the amounts of which may be negotiated by her with Centrelink) would necessarily result in her being in, or would necessarily cause her, “severe financial hardship”, within the meaning of s 1236(1C) and s 95(4). In this connection, the Tribunal notes the current income/expenditure statement tendered by the applicant (Exhibit A2) and, in particular, her stated expenditure of $100 per fortnight for cigarettes. It seems to the Tribunal that the applicant may be able substantially to reduce at least that item of expenditure, if not also some others, in order to offset such deductions by Centrelink so that she is able financially to make ends meet from her fortnightly social security payments. Accordingly, pursuant to s 1236C(1) and s 95(4), the Tribunal is not satisfied that the applicant “has no capacity to repay” the relevant debts, within the meaning of s 1236(1A)(b) and s 95(2)(b).
99. It follows that the relevant debts due by the applicant to the Commonwealth cannot be written off under s 1236(1) of the SS Act or s 95(1) of the FAA Act.

Conclusion

100. The applicant did not seek to rely on any of the other non-recovery provisions in Pt 5.4 of the SS Act and Div 4 of Pt 4 of the FAA Act and, in any event, the Tribunal is satisfied that none of those provisions is applicable in this case. The Tribunal concludes, therefore, that the relevant debts due by the applicant to the Commonwealth are recoverable in full from her by the Commonwealth in accordance with Pt 5.3 of the SS Act and Div 3 of Pt 4 of the FAA Act.

CONCLUSION

101. The conclusion to which the Tribunal has come, in respect of the primary issue in this matter, is the same as that reached by the ARO, namely, that the applicant was a “member of a couple”, for the purposes of the SS Act and the FA Act, for the whole of the relevant period, whereas the SSAT determined that the applicant was a “member of a couple” for certain periods within the relevant period but not for the whole of the relevant period (see paragraph 3 above). Accordingly, the decision of the SSAT must be set aside.

DECISION

102. For the above reasons the Tribunal sets aside the decision of the SSAT dated 29 April 2009 and, in substitution therefor, decides as follows:
     • the applicant was a “member of a couple”, for the purposes of the SS Act and the FA Act, for the whole of the relevant period;
     • the amounts of overpayments of parenting payment under the SS Act, and the amounts of overpayments of family tax benefit and child care benefit under the FA Act, received by the applicant in the relevant period are debts due by the applicant to the Commonwealth under, respectively, s 1223 of the SS Act and ss 71 and 71C of the FAA Act;
     • those debts are recoverable in full from the applicant by the Commonwealth in accordance with Pt 5.3 of the SS Act and Div 3 of Pt 4 of the FAA Act.
       

I certify that the 102 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

Signed: ...............[sgd D Brodie]........................

Associate

Dates of Hearing 8, 9 November 2010

Date of Decision 21 January 2011

Representative of the Applicant Ms N Joseph

Sussex Street Community Law Service Inc

Representative of the Respondents Mr B Sparkes

Centrelink Legal Services