Forrester; Secretary, Department of Family and Community Services

[2004] AATA 785

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 785

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/222

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And SUSAN FORRESTER

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date27 July 2004

PlaceSydney

Decision

The Tribunal sets aside the decision under review and in substitution thereof determines that :

1.    Mrs Forrester was a member of a couple for the period 8 July 1998 until 17 December 2001; and

2.    Mrs Forrester was not a member of a couple from October 1997 to 7 July 1998 as she was not in a marriage like relationship during that period; 

    3. The matter is remitted to the Applicant for the calculation of the debt for the period 8 July 1998 to 26 September 2001.

[Sgd] Dr J D Campbell   Member

CATCHWORDS

SOCIAL SECURITY - Member of a couple - Marriage like relationship - Parenting payment single - Cancellation, raising and recovery of overpayment - Sole parent pension, family allowance, family tax benefit - Raising and recovery of overpayments.

AUTHORITIES

Social Security Act 1991 - sections 4(2), 4(3), 1237AAD

A New Tax System (Family Assistance) (Administration) Act 1999 - section 101

REASONS FOR DECISION

27 June 2004   Dr  J D Campbell, Member

1.      In this matter the Secretary, Department of Family and Community Services (“the Applicant”) seeks a review of the decision of the Social Security Appeals Tribunal (“SSAT”) dated 4 November 2002 which determined that Mrs Forrester was entitled to be paid parenting payment single at the date of cancellation of her payment and no debts arose as Mrs Susan Forrester was not a member of a couple.

background

2.      Mrs Forrester separated from her husband, Dallas, on 7 June 1997. On 18 June 1997 Mrs Forrester applied for and was granted sole parent pension, as she had care of their two children Luke and Todd. At the time of application Mrs Forrester detailed her home address as 9 Gumtree Avenue, Dubbo. Mrs Forrester subsequently advised Centrelink of the following changes of address:

1/10 Marsden Street, Dubbo from 1 July 1997

14 Condon Place, Dubbo from 12 November 1997

19 Church Street, Yamba from 8 July 1998

13 The Mainbrace, Yamba from 28 August 1998 (“The Mainbrace residence”)

65A Vera Drive, Coffs Harbour from 28 August 2001.

3.      On 15 February 1999 Centrelink sent Mrs Forrester a “Review of Living Arrangements” to her address at Yamba. The Parenting Payment was suspended from 5 March 1999 when the form was not returned but was restored with arrears from 18 March 1999. Centrelink conducted a series of investigations into Mrs Forrester’s living arrangements. On 27 September 2001 Mrs Forrester’s Parenting Payment was suspended pending further enquiry by Centrelink. On 12 December 2001 a Centrelink delegate determined that Mrs Forrester was living in a marriage like relationship and her Parenting Payment was cancelled from 27 September 2001 (this included family tax benefit, formerly paid as family allowance until 27 June 2000). This decision was affirmed by an authorised review officer on 18 January 2002.

4.      Centrelink delegates made the following further decisions as a consequence of the decision to cancel Mrs Forrester’s payment of Parenting Payment Single:

·24 January 2002 to raise and recover an overpayment of Sole Parent Pension in the amount of $2,777.00 for the period 13 November 1997 to 19 March 1998;

·24 January 2002 to raise and recover an overpayment of Parenting Payment Single in the amount of $32,054.73 for the period 2 April 1998 to 27 September 2001;

·11 February 2002 to raise and recover an overpayment of Family Allowance in the amount of $18,749.65 for the period 6 November 1997 to 27 June 2000;

·11 February 2002 to raise and recover an overpayment of Family Tax Benefit in the amount of $2,364.26 for the period 19 September 2001 to 8 January 2002.

5.      The latter decisions were affirmed by an authorised review officer (“ARO”) on 12 April 2002. Mrs Forrester sought review by the SSAT of these decisions on 14 February 2002. On 4 November 2002 the SSAT set aside the decision under review, concluding that Mrs Forrester was entitled to be paid Parenting Payment Single at the date of cancellation of her payment and no debts arose as Mrs Forrester was not living in a marriage like relationship. The Applicant lodged an application for review of the decision with the Tribunal on 16 December 2002.

issues

6.      The relevant issue to be determined by the Tribunal is whether Mrs Forrester was a “member of a couple” as defined by subsections 4(2) and 4(3) of the Social Security Act 1991 (“the Act”), and if so whether the debts owed by Mrs Forrester can be waived pursuant to section 1237 AAD of the Act or section 101 of the A New Tax System (Family Assistance) (Administration) Act 1999 (“the FAA Act”).

7.      A hearing of eight days was spread over a 10 month period. The Tribunal, having considered all the evidence and for reasons detailed later in this decision, has determined that Mrs Forrester was a “member of a couple”  in that her relationship with Sgt Roger Mackander was a marriage like relationship as defined by section 4(3) of the Act during the period 8 July 1998 until 21 December 2001.

evidence

mr dallas forrester

8.      Mr Dallas Forrester, a self-employed builder, is the ex-husband of Mrs Forrester. In a statement dated 17 October 2001 Mr Forrester stated that he and Mrs Forrester had separated some three or four years ago and later divorced. Mr Forrester stated that the separation occurred because he believed Mrs Forrester and Sgt Mackander had an affair and he further believed that at that time Mrs Forrester and Sgt Mackander were a couple, as she referred to him as her new partner.

9.      Mr Forrester stated that Mrs Forrester resided at 1/10 Marsden Street, Dubbo and he believed that she never resided permanently at 14 Condon Street, Dubbo (address of Mrs Forrester’s sister, Wendy Sutton) and that she was living with Sgt. Mackander in the police house at Narromine. Mr Forrester stated that he collected the two boys (Luke and Todd) from Mrs Forrester’s Yamba address on one occasion; that he had never been physically violent towards Mrs Forrester and that he was unaware of her preferred sexual preference.

10.     In oral evidence, Mr Forrester affirmed that his statement was essentially a compilation of answers to questions asked by a Centrelink Officer and that, while he was angry at time of compilation because of the officer’s reference to Mrs Forresters allegation of violence in the marriage, the answers given were and remain his belief. Mr Forrester stated that he was unable to recall anything which Mrs Forrester may have said during their arguments that formed the basis of his opinion that she and Sgt. Mackander were having an affair (Transcript 19 June 2003, p 29).

11.     Mr Forrester stated that he visited Mrs Forrester at 10 Marsden Street, Dubbo and on one occasion Sgt Mackander was present but he did not know if he was living there. Mr Forrester never made contact with Mrs Forrester and the children at Condon Street because he was not aware that they lived there. Mr Forrester said that he visited the Narromine Police House on two occasions, once to see Todd, with his new puppy (a short visit) and the other time, when the divorce papers were served. Mr Forrester was unable to state one way or the other whether Todd was living at the police house. He stated that he had never seen or visited Mrs Forrester at Narromine and he could not say that she was living at the Narromine address.

12.     Mr Forrester stated that he nominated the Narromine address in the divorce application because he believed it was guaranteed, that Mrs Forrester would receive the papers. Mr Forrester drove Mr Everingham to the Narromine address on 7 June 1998 when the divorce papers were served. He remained in the vehicle for the duration of the visit and heard and observed Mr Everingham talking to Sgt Mackander and Mr Everingham placing the papers on the front step.  Mr Forrester did not see Mrs Forrester, but observed movement through a blind. Mr Forrester was told by Mr Everingham that he saw Mrs Forrester looking through the window. Mr Forrester was aware that his son, Luke had a learning disability and had been enrolled at the Narromine School.

mr jason everingham

13.     In an Affidavit of Service  dated 9 June 1998 (T37, p162), Mr Everingham, an electrician, stated that he served the divorce documents at the front door of the police residence at Narromine on 7 June 1998. He stated that he was met at the front door by Sgt Mackander and told him he had papers to serve on Mrs Forrester,. He saw Mrs Forrester standing behind the front door and was ordered off the property by Sgt Mackander. He placed the papers at the front door, while Mrs Forrester was looking around the edge of the door refusing to come out. 

14.     In his oral evidence Mr Everingham stated that he was not a registered process server and did it on this occasion as a favour for a friend. Mr Everingham had been driven to the address by Mr Forrester, who was also taking his two children back to Mrs Forrester. Mr Everingham stated that he walked up the driveway and spoke with who he assumed was Sgt Mackander, although he had never met him previously. Mr Everingham observed Mrs Forrester standing behind the door, although she was partly obscured. Mr Everingham observed the two boys walk past and say “hello mum”. Mr Everingham stated that Mrs Forrester had been pointed out some months earlier and apart from that instance and his identification at the time he served the papers on 7 June 1998, he has not seen her. Mr Everingham acknowledged that Mr Forrester was married to his mother-in-law.

senior constable michael daley

15.     In a statement dated 26 July 2002 (Exhibit A2) Senior Constable Daley detailed that he was stationed at Yamba when Sergeant Mackander arrived with three other people who Sgt Mackander later introduced as Mrs Forrester and her two sons Luke and Todd.

16.     Senior Constable Michael Daley detailed the following comments:

·     On visiting Sgt Mackander in late 1998 at The Mainbrace residence, Sgt Mackander introduced Mrs Forrester to him as his partner. Senior Constable Daley noted that “they were a loving couple”. He also stated that Sgt  Mackander explained to him that both himself and Mrs Forrester were separated from their respective spouses;

·     Mrs Forrester was a VIP (“Volunteer in Policing”), but her main function was to assist Sgt Mackander and no-one else. He often observed Sgt Mackander and Mrs Forrester driving around in the police truck;

·     He and his wife attended a barbeque at Sgt Mackander’s residence on 24 December 1998 at which time he observed:

-   Sgt Mackander and Mrs Forrester were most affectionate towards each other

-   Mrs Forrester showed his wife around the house

-   Sgt Mackander and Mrs Forrester shared the main bedroom in the house

·On New Year’s Day 1999, Senior Constable and his wife invited Sgt Mackander and Mrs Forrester, Greg Hembrow and his wife and Stuart Hutton and his wife over for a barbeque. Senior Constable Daley again observed Sgt Mackander and Mrs Forrester to be very affectionate to each other, that they stayed late and left in the same car;

·On 14 October 2000, Senior Constable Daley and his wife noticed Sgt Mackander and Mrs Forrester walking together and holding hands whilist attending at the Seafood Expo held at Yamba Marina.;

·He had seen Sgt Mackander on many occasions hanging about in Mrs Forrester’s hair salon. He had observed Sgt Mackander spending a lot of time building it and putting in various fixtures;

·In oral evidence, Acting Sergeant Daley stated that he transferred to Yamba in April 1994 and remained there until his transfer to Coolah in April 2001. He had heard, prior to the arrival of Sgt Mackander, that he was a hard man, had achieved a lot and had received a lot of criticism. Senior Constable Daley visited The Mainbrace residence in August 1998 and was a weekly visitor for some months, mainly for social reasons, and during which he would partake of a meal. At his first visit in August, Senior Constable Daley is unable to remember the exact words of introduction, but noted that Sgt Mackander and Mrs Forrester were loving and caring towards each other.

17.     Senior Constable Daley was confident that the barbeque did occur at The Mainbrace residence on 24 December 1998, despite suggestions that Mrs Forrester was in Dubbo as evidenced by a cash withdrawal in Dubbo from her account and that Sgt Mackander had travelled to Sydney for the expected birth of a grandchild. Senior Constable Daley stated that others at the barbeque were Ms Mort, a nurse and a partner, a trawler operator, from across the road. Senior Constable Daley stated that he was familiar wtih the layout of The Mainbrace residence, because of a friendship with the previous sergeant. He observed that Mrs Forrester and Sgt Mackender were sharing the front bedroom, that the dining room was set up as an office with a computer, and there may have been a mattress against the wall.

18.     Senior Constable Daley stated that he and his wife entertained Sgt Mackander and Mrs Forrester, the Hembrows and the Huttons at a barbeque on 1 January 1999. He stated that Sgt Mackander and Mrs Forrester arrived together in a Holden Jackaroo with a hair salon logo on the door, were not in uniform and remained for some hours before leaving together. In the face of particulars put to him, namely the hair salon was not in existence at that time, and that the Hembrows and Huttons had yet arrived in Yamba at that date, Senior Constable Daley agreed that he may have made a mistake about the date, with the barbeque being in January 2000. At this time Senior Constable Daley acknowledged that Sgt Mackander would have been suspended and/or on 'restricted duties. He was also unaware that Sgt Mackander may have been on duty that evening (1 January 2000).

19.     Senior Constable Daley described his relationship with Sgt Mackander as cordial and friendly during the first nine months, although there were minor incidents over Sgt Mackander’s excessive use of force. There were two incidents, namely the Shane Day arrest, which the witness described as occurring in July 1999 (this being the date of the bowling club matter, which led over time to charges against Sgt Mackander, and the Shane Day arrest occurring on New Years Eve 1998/99). The witness described a change in his relationship with Sgt Mackander as a consequence of Sgt Mackander’s attempt to transfer him to the Water Police in Coffs Harbour – an activity which appealed to him, but not to his wife. In Senior Constable Daley’s opinion the incident disturbed his wife and she did not like Sgt Mackander thereafter.

20.     Senior Constable Daley described a continued deterioration of his relationship with Sgt Mackander over time, and during which he raised two complaints against Sgt Mackander; the first relating to the latter’s attitude and actions following the brief of evidence against him in October/November 1999. It was during this period that Senior Constable Daley alleged that the Sgt Mackander said “I should watch myself” and that he had made allegations of infidelity by Senior Constable Daley. The second complaint related to improper care of police in relation to the Green Point incident on 4 October 2000 when Sgt Mackander was wandering in a distressed state in the vicinity of the Senior Constable Daley’s residence. In summary Senior Constable Daley concluded that Sgt Mackander is not a person who he could ever see as sitting down and having a beer and a chat with.

21.     Senior Constable Daley also made a diary note of the events of the Seafood occasion on 14 October 2000, as it was a short time after the event about which he had made a complaint.

22.     Senior Constable Daley stated that he was initially unaware of any relationship between Sgt Mackander and Ms Mort but subsequently heard of such. He was unaware of any relationship between Sgt Mackander and a person called Ms Drady. Senior Constable Daley also stated that he knew Bill Day and that the latter had made a number of complaints about Sgt Mackander. He considered Mr Day “to be a dog with a bone” in regards the numerous complaints and he concluded by stating that Sgt Mackander was not a person in whom he would confide.

mrs rebecca daley

23.     Mrs Daley, the wife of Senior Constable Daley detailed her witness statement on 1 October 2001 (T40). In her statement, Mrs Daley made the following comments:

·She attended the barbeque at The Mainbrace residence on 24 December 1998, was introduced to Mrs Forrester by Sgt Mackander as his partner, and was shown through the house by Mrs Forrester. Mrs Daley was given no indication that they were flatmates at that time, the first suggestion that they were flatmates being during Sgt Mackander’s trial;

·Mrs Daley witnessed them to be affectionate at the barbeque, and to be holding hands at the Seafood Expo.  Similarly she considered them to be a couple at the house warming function at Senior Constable O’Mahony’s residence;

·She witnessed Sgt Mackander undertaking building and painting activities at Mrs Forrester’s hair salon, hanging around the salon when he was suspended from duties and washing old ladies hair. Mrs Daley said she and her husband would stop and talk to Sgt Mackander who would often refer to the salon as “their business”;

·Mrs Forrester was constantly at Sgt Mackander’s side supporting him while he was suspended from duty, and she displayed a “not guilty” blackboard sign at the front of her salon at a time after Sgt Mackander’s trial decision was handed down;

·Mrs Daley had been told that Mrs Forrester had been listed on moving documentation as his de-facto, and she cited this and other countless incidents as examples of blatant dishonesty and ongoing deception which made her very upset.

24.     In oral evidence, Mrs Daley stated that she had responded to a request to make a statement by a Centrelink Officer who was investigating whether Mrs Forrester had defrauded Centrelink. Mrs Daley said that she first met and socialised with Sgt Mackander and Mrs Forrester at a barbeque at The Mainbrace residence on 24 December 1998. The other two attendees were a couple from across the road, namely Ms Mort, a nurse and her partner, a fisherman.  After being introduced by Sgt Mackander to his partner, Mrs Forrester showed her through the house. Mrs Daley, by virtue of a friendship with the previous occupants was familiar with the layout of the house. She assumed that Sgt Mackander and Mrs Forrester were occupying the front bedroom, as the dining room was set up as an office, with no evidence of a mattress. When suggested that Mrs Forrester was in Dubbo and Sgt Mackander in Sydney on 24 December 1998, Mrs Daley remained unchanged as to the date and nature of the event.

25.     Mrs Daley also detailed the barbeque at their residence, which initially she believed was on 1 January 1999 and with the same attendees nominated as by her husband. When suggested that both the Hembrows and the Huttons had yet not arrived in Yamba by that time, Mrs Daley said she must have got the year wrong, and it was 1 January 2000. Mrs Daley confirmed that she had seen Sgt Mackander and Mrs Forrester shopping in the police vehicle, together with the two children in the police boat and at the Seafood Expo on 14 October 2000.

26.     Mrs Daley’s oral evidence as regards the purported transfer of her husband to Coffs Harbour in March 1999 varied from that of her husband.  Senior Constable Daley had stated in oral evidence that he had gone home and discussed the issue with his wife. However, Mrs Daley stated that she was having a cup of coffee with a friend when Sgt Mackander and Mrs Forrester pulled up in a police vehicle and stated that her husband was back at the station and wanted to talk with her. Mrs Daley was not pleased with the proposed transfer of her husband to Coffs Harbour as she did not want to go and she felt Sgt Mackander was trying to get rid of her husband. Thereafter Mrs Daley said she became suspicious of Sgt Mackander and in summary described her attitude to Sgt Mackander in such terms as she “did not have an axe to grind”.  She told the Tribunal that Sgt Mackander is not her friend and he will never be her friend. Mrs Forrester found herself suspicious of Sgt Mackander, and the experience frustrating, as well as being annoyed at a lot of things he does and gets away with.

27.     Mrs Daley stated that she had heard from other people, that during the Shane Day hearing in the Magistrates Court, Mrs Forrester said that she was a flatmate in The Mainbrace residence. This, Mrs Daley felt, was inconsistent with her assessment of the relationship on 24 December 1998, at which time Mrs Forrester had confided in her that she and Sgt Mackander were looking for a fresh start following messy divorces and at which they were affectionate towards each other.

28.     Mrs Daley said that she had not spoken often with Mr Bill Day, and that he had been supportive of her and her husband at the time of Sgt Mackander’s trial. Mrs Daley concluded by stating that there was no room for improvement in her opinion.

ms sue schmolke

29.     In a memorandum to Mr Bill Day dated 28 June 1999 (T13), Ms Schmolke, a retired manager and Area Co-ordinator of the Neighbourhood Watch for the Yamba District, stated that she met Sgt Mackander and Mrs Forrester on 10 July 1998 at The Mainbrace residence. On 13 July 1998 Sgt Mackander and Mrs Forrester attended a Neighbourhood Watch meeting with the business residents, at which Sgt Mackander introduced Mrs Forrester as his partner and a VIP. Ms Schmolke stated that on one occasion she had seen Sgt Mackander in casual clothes at Yamba monthly markets with Mrs Forrester and her two children and observed Sgt Mackander in uniform, hand in hand with Mrs Forrster at the Seafood Expo on 12 September 1998. Ms Schmolke also viewed the pair walking hand in hand through Yamba’s residential streets and heard Sgt Mackander at the Neighbourhood Watch meeting refer to Mrs Forrester as his wife.

30.     In oral evidence Ms Schmolke stated she attended the monthly Neighbourhood Watch meeting on 14 July 1998 and at that meeting Inspector Graham introduced Mrs Forrester as Sgt Mackanders partner and a VIP. On 10 August 1998 Ms Schmolke recorded that Sgt Mackander referred to Mrs Forrester as his wife at the Neighbourhood Watch meeting.

31.     Ms Schmolke stated that she had written the memo in response to a request from Mr Day to help his son in a police process. Further she had been requested by Mr Day to address any information concerning the relationship between Mrs Forrester and Sgt Mackander. Ms Schmolke emphasised that this was the sort of information Mr Day was seeking. Ms Schmolke stated that she did not know Mr Day particularly well and that on first meeting Sgt Mackander and Mrs Forrester, she presumed they were a de facto couple as they were unpacking together. Ms Schmolke reaffirmed the accuracy of other observations made in her memo of June 1999. Ms Schmolke also alluded to hearing concerns about Sgt’ Mackanders policing style in late 1998 from community services, while the business community seemed to be happy with police actions taken to curb antisocial behaviour.

mr william day

32.     Mr Day, a Manager employed by the Clarence River Tourist Association and a Councillor of the Maclean Local Council, made a statement on 26 September 2001 T41). In his statement, Mr Day noted his attendance at the official opening of the Beachside development (“Beachside”) in Yamba on 21 December 1998 at 6.30pm. Mr Day stated that he spent a long period with Councillor Ian Tiley, the Mayor of the Maclean Shire Council that evening, and together they approached Sgt Mackander and introduced themselves. Sgt Mackander introduced the woman sitting beside him, as his wife, Susan. Since that time Mr Day has seen Sgt Mackander standing outside the Dallas T Hair Salon on three to four occasions and on 22 March 2001 he saw Mrs Forrester and Sgt Mackander leave Maclean High School together and walk towards a Holden four wheel drive vehicle.

33.     The Tribunal also notes other correspondence of Mr Day, namely:

·     A letter to Mr McNamara, Centrelink dated 26 May 1999 (T11, p.54) in which Mr Day states that Sgt Mackander has introduced Mrs Forrester as his wife and partner on many occasions, and yet they go to some lengths to deny their relationship in sworn statements to the Court. He also believes Sgt Mackander would use his position to intimidate any person conducting an inquiry into his relationship with Mrs Forrester.

·     A letter to the Minister of Community Services dated 27 May 1999 (T11, p.53) which enclosed a copy of the letter of 26 May 1999, in which Mr Day makes an allegation of corrupt behaviour against a police officer.

·     =A letter to the Minister of Community Services dated 9 March 2000 (T19, p.80) in which he expressed a lack of action by the Centrelink investigators particularly in light of information that Sgt Mackander was suspended from the Police Service while awaiting hearing of charges of conspiracy to pervert the course of justice. These charges had resulted from investigations conducted by the New South Wales Police Service Internal Investigation Unit. Mr Day also stated that Inspector Warwick Laney had advised him that a de facto relationship exists between Mr Mackander and Mrs Forrester as a consequence of his enquiries. Mr Day advised that material had been provided to Centrelink by him from local citizens of impeccable character outlining substantial proof of this de facto relationship. Mr Day believed the Centrelink investigators had been intimidated and misled.

·     A letter to Mr Patmore, Centrelink dated 12 July 2001 (T30, p.135) in which Mr Day states that “[h]e has confirmed that their combined furniture was moved by a furniture removalist company from a single address in Narromine… that Mackander lists Forrester as his next of kin on police documentation”.

·     A facsimile to Mr Patmore dated 20 August 2001 (T32, p138), in which he attaches a copy of a story from the Daily Examiner newspaper of 17 August 2001 in which Sgt Mackander is quoted as saying one of the best aspect of living in Yamba “…had been the friendships he and his family had formed”.

34.     In oral evidence Mr Day stated that the time he first met Sgt Mackander, at Beachside on 21 December 1998, he was unaware that Sgt Mackander and Mrs Forrester had arrived together to Yamba and that they were sharing a house. He did not believe Mr Doughan was present when he and Councillor Tiley spoke with Sgt Mackander and Mrs Forrester at the Beachside function.

35.     Mr Day stated that he next met Sgt Mackander on New Year’s Eve 1998 at the Police Station when his son Shane was arrested and charged, found guilty and later acquitted on appeal. Mr Day felt he was threatened by Sgt Mackander at the Police Station at the time of his son’s arrest.

36.     Mr Day stated that he formed a view about Sgt Mackander about which he wanted to do something. He approached others who had similar experiences and difficulties with Sgt Mackander and others approached him and he advised them on how to make a complaint, this all occurring in early 1999. Mr Day stated that he submitted numerous complaints to the Ombudsman and had many conversations with officers within the Ombudsman Office; either following up his or other’s complaints. Mr Day states that he was told during one of these conversations that Sgt Mackander was one of the most complained about people and that there had been approximately 20 complaints. Mr Day believed that Sgt Mackander’s conduct deserved thorough investigation, as far ranging as possible and he committed considerable time to following through on all issues. Mr Day also stated that he had never previously made a complaint to the Ombudsman about anyone else.

37.     Mr Day stated that his letter to Centrelink on 26 May 1999 arose from matters stated in the local Court on 30 April 1999 by Sgt Mackander and Mrs Forrester during the Shane Day hearing. Mr Day had by this stage formed an opinion about the relationship between Sgt Mackander and Mrs Forrester, believing that they were a de facto couple. As a consequence of their evidence that they were sharing a house and that Mrs Forrester was paying rent to Sgt Mackander on 30 April 1999, Mr Day formed a belief that as a result of this evidence, Sgt Mackander and Mrs Forrester were covering up a Centrelink payment issue.  In coming to this conclusion, Mr Day relied in part on his meeting with Sgt Mackander and Mrs Forrester at the Beachside function on 21 December 1998, and in part on an assumption that two people sharing a home, were a de facto couple, unless one became aware of something to the contrary. It was these beliefs that led Mr Day to make the allegations he made in the letter to Centrelink on 26 May 1999. Mr Day also believed that Sgt Mackander was abusing his power and intimidating people, and that some people were afraid to come forward fearing retribution from Sgt Mackander. Mr Day nominated Ms Schmolke, Ms Fisher and others as possible people in this category, although after much discussion both may have provided material to him or to others as a consequence of his initiation.

38.     Mr Day also confirmed that it was either Inspector Laney or Godden who had provided him with the next of kin information, obtained during their investigation and the subject of his comment in the letter to Centrelink of 12 July 2001. Mr Day also pursued the issue of whether Sgt Mackander was permitted to have a tenant in a Police House, as part of his ongoing pursuit of Sgt Mackander’s constant abuse of the law. Mr Day reported this issue to both the Police and the Ombudsman. Mr Day was dissatisfied with Inspector McArthur’s investigation of the issue, but subsequently was told by either Inspector Godden or Laney that such an action to sublet was viewed as inappropriate. Mr Day stated that he continued to pursue the issue with the Ombudsman, as he did not feel the Police would take action over the issue.

39.     Mr Day also stated that he made diary notes to ensure follow up on issues with Ms Schmolke and Ms Fisher for further evidence on the relationship in question.

40.     In the letter of 9 March 2000, Mr Day referred to Inspector Laney’s advice that their investigations had been quite conclusive, and he would be quite surprised if his recollection differs.

41.     Mr Day confirmed that his concerns about Sgt Mackander did not eventuate until after his son’s arrest and that subsequently it was important to him to pursue the issues.  He stated that he had felt somewhat disillusioned as a result of his experience during his son’s episode, and felt there was no place for this sort of behaviour in the New South Wales Police Service.  He stated his belief that a de facto relationship existed was reinforced along the way.

mr tiley

42.     Mr Tiley, a handicapped childrens’ bus operator, told the Tribunal that on 21 December 1998 he attended a Beachside function at the Community Centre. At that function, he and Mr Day, a Councillor colleague since 1995, saw Sgt Mackander who they recognised from newspaper photographs, and went over and introduced themselves. Sgt Mackander introduced them to a woman sitting on his left as Mrs Forrester, his partner or perhaps his wife. Mr Tiley stated that Mr Dougham was not present during this conversation with Sgt Mackander. Mr Tiley considered Sgt Mackander and Mrs Forrester were in some form of a relationship.

senior constable allan lawrence millward

43.     In his statement dated 25 September 2002, Senior Constable Millward detailed that he was the look-up keeper residing in Yamba police residence in July 1998 when Sgt Mackander was transferred to Yamba. He states that shortly after his arrival, he and his wife attended at Sgt Mackander’s residence, to introduce themselves at which time Sgt Mackander introduced Mrs Forrester as his partner. During an ensuing cup of tea Senior Constable Millward observed Sgt Mackander and Mrs Forrester to be continually holding hands and being affectionate to each other. Senior Constable Millward understood that, as a result of the conversation, they had recently started a relationship after previous marriages and they were residing as a de facto couple.

44.     Senior Constable Millward stated that he attended the Neighbourhood Watch meeting on 14 July 1998 where Inspector Graham introduced Mrs Forrester to the meeting as Sgt Mackander’s partner. On 7 November 1998 Senior Constable Millward noted that Sgt Mackander, Mrs Forrester and her two boys attended a barbeque at his residence and appeared to behave as a family. On 18 December 1998 at a barbeque with the Police Commissioner, Sgt Mackander and Mrs Forrester again appeared as a couple.

45.     Senior Constable Millward observed that:

·Mrs Forrester was only at the station when Sgt Mackander was there;

·Mrs Forrester and Sgt Mackander would always be together;

·They would go out in the police vehicle together;

·Mrs Forrester and Sgt Mackander ‘did everything together’;

·Mrs Forrester only did  jobs with Sgt Mackander;

·Their behaviour was observed by all the police and commented upon;

·Sgt Mackander and Mrs Forrester would eat together;

·Sgt Mackander, on his days off, would go fishing with the two boys;

·Sgt Mackander and Mrs Forrester would walk off duty and/or shop and often holding hands.

·Senior Constable Millward also stated that Sgt Mackander and Mrs Forrester bought an apartment at the Beachside.

46.     In oral evidence Senior Constable Millward stated that he believed Sgt Mackander and Mrs Forrester had purchased the unit at Beachside because of comments Sgt Mackander had made to a group of police which included himself. Senior Constable Millward stated that he did not have a lot of social contact with Sgt Mackander and Mrs Forrester, and that he was transferred to Coffs Harbour in August/September 1999. Senior Constable Millward confirmed his written assertions and continued in his belief they were a de facto couple, despite evidence coming to light at the Shane Day hearing that Sgt Mackander and Mrs Forrester were flatmates. Throughout, Senior Constable Millward formed his belief on what he saw and heard and denied that Mrs Forrester and Sgt Mackander were actually seated at opposite ends of the dinning table on the occasion of the first visit in July 1998. In relation to the barbecue on 7 November 1998, Senior Constable Millward believed they attended together; Sgt Mackander may have been in uniform, he ate a meal and may or may not have left with Mrs Forrester.

47.     Senior Constable Millward also stated that he was transferred out for failing to carry through correct procedures during an integrity test. He did not believe Sgt Mackander was responsible in any way for his transfer out and he had no ill will towards Sgt Mackander, even though he disagreed with his ways of policing.

mrs janette millward

48.     In a statement dated 25 September 2002 (Exhibit A4) Mrs Millward detailed a visit she and her husband made to Sgt Mackander’s residence on 13 July 1998.. Mrs Millward stated that she and her husband were invited inside to meet his partner. Mrs Millward observed Sgt Mackander and Mrs Forrester holding hands and, during a guided tour of the house, observed that the front bedroom was set up for occupation by both. Mrs Millward formed the impression that they were living together as a couple and a family.

49.     Mrs Millward attended the Neighbourhood Watch meeting on 14 July 1998 at which Inspector Graham introduced Mrs Forrester as Sgt Mackander’s partner.  Mrs Millward also stated that she was driven home from Maclean Hospital on 14 July 1998 by Sgt Mackander, with Mrs Forrester present. She also recalled a discussion with Mrs Forrester’s about her boys joining the Scouts and how much happier her two boys were with Sgt Mackander filling the role of father. Mrs Millward stated they continued their conversation for a further hour on return to the Yamba Police Station.

50.     Mrs Millward also made reference to the barbeque on 7 November 1998, at which Mrs Forrester complained about Sgt Mackander’s eating habits. Mrs Millward stated that at the barbeque on 18 December 1998 for the Police Commissioner, Mrs Forrester was introduced as Sgt Mackander’s partner.

51.     In oral evidence Mrs Millward affirmed her earlier evidence that when shown the front bedroom on 13 July 1998, Mrs Forrester complained about the holes left in the wall where some lights had been removed and said they would have to be replaced because both she and Sgt Mackander liked to sit in bed reading. Mrs Millward remembered the dining room being set up as a dining room, and confirmed that Ms Schmolke was at the Neighbourhood Watch meeting on 14 July 1998 and that Inspector Graham introduced Mrs Forrester as Sgt Mackander’s partner.

52.     Mrs Millward stated that during the 13 July 1998 visit, which lasted about an hour, she and her husband sat on stools at one end of the bench and Mrs Forrester and Sgt Mackander sat together at the other end of the bench holding hands. As regards the barbeque on 7 November 1998, Mrs Millward stated that both Mrs Forrester and Sgt Mackander attended,  Sgt Mackander was in uniform and he departed early  is her best memory and she could not be sure they both attended. The preceding facts confirmed to Mrs Millward that Sgt Mackander and Mrs Forrester were in a de facto relationship.

ms debrah fisher

53.     In a statement dated 27 May 2003 (Exhibit A6), Ms Fisher stated that when on a photographic assignment at the police station to photograph the new safety house committee person, Mrs Forrester, she was introduced to the new police Sgt by Mrs Forrester in the following terms: “This is my partner, Roger Mackander”. Ms Fisher also records that she saw them at both sporting and social functions, holding hands as well as driving around in a police vehicle.

54.     In oral evidence Ms Fisher confirmed that the photo shoot at the Police Station was the first time she met Sgt Mackander and Mrs Forrester, but she had subsequently, on numerous occasions, encountered them in her work capacity. Ms Fisher admitted to being a friend of Ms Classem, a Security Guard, who was involved in an incident at the bowling club, but was unable to remember month or year of the incident. Ms Fisher did attend one day of Sgt Mackander’s hearing during which Ms Classem may have given evidence and she talked with some of the police officers after they had given evidence.

55.     Ms Fisher stated that she had little personal as opposed to professional interaction with either Sgt Mackander or Mrs Forrester., As well as her presumption that two mature people who come to a new community together are a couple, Ms Fisher reiterated that at the first meeting Sgt Mackander was introduced by Mrs Forrester as her partner. Of that Ms Fisher remained adamant.  

56.     Ms Fisher indicated that she had been asked to give a statement about two years ago, but her involvement only occurred a few weeks before the hearing when she was contacted and agreed to give evidence. Ms Fisher told the Tribunal that although most people thought Sgt Mackander and Mrs Forrester were a de facto couple, some people believed  they were not. It was Ms Fisher’s general preference to retain a professional distance from involvement in such issues.

57.     Ms Fisher stated that she had a professional relationship with Mr Day, although she admitted to a period where the relationship was strained. Ms Fisher had no idea as to why Mr Day would ring her about Sgt Mackander and Mrs Forrester.

58.     A file note of Mr Patmore, Centrelink Officer dated 27 April 2000 was put to Ms Fisher.  The note stated that Mr Patmore received a phone call from Ms Fisher informing him that she had heard that he was in Maclean making inquiries. The note goes on to state “She says they are a couple and has knowledge of this through her work and is willing to give a statement. Even offered to round up some others to help out and make an effort to photograph them as a couple”. Ms Fisher, in response, thought that she may have been returning a call and that the recorded response may have been a synopsis of her response to various questions. Ms Fisher agreed that such suggested activities were at odds with her previous statements in which she referred to not getting involved in community disputes and maintaining a professional approach. Ms Fisher concluded by stating that the file note may not have reflected the exact conversation, although she could not remember what words have been excluded. Ms Fisher did not believe she had an agenda, and she has no doubt in her mind that Sgt Mackander and Mrs Forrester were a couple.

superintendent kuiters

59.     In oral evidence Superintendent Kuiters stated that in his capacity as an officer of the New South Wales Police Service in late 2001, he was involved in an internal affairs investigation of some 10 matters concerning Sgt Mackander. One of these matters was the domestic affairs of Sgt Mackander and Mrs Forrester, which involved an allegation of perjury relating to statements made by each of them about the nature of their relationship. Superintendent Kuiters stated that, during this investigation, he became aware of claims made by Mr Mackander of sought expenses for the movement of his family from Dubbo to Yamba, such claims being in direct contradiction to evidence given in Court. The Court evidence was seen as contradictory in that Mrs Forrester, when asked whether she was in a domestic relationship, stated words to the effect “No the Sarge is my landlord” . Superintendent Kuiters stated that while his original brief was to look at the perjury aspect, he extended his brief to include perjury and/or obtain money by deception. 

60.     Superintendent Kuiters confirmed that he was shown documents relating to:

·     claim for reimbursement of school uniforms dated 6 July 1998 for changing schools from Dubbo to Yamba (Exhibit A7);

·     claim for reimbursement of School Uniforms dated 20 August 2001 for “my two sons” when transferred from Yamba to Coffs Harbour (Exhibit A8);

·     claim for depreciation of furniture and expenses associated with transfer from Narromine to Yamba dated 17 July 1998 (Exhibit A12);

·     claim for depreciation of furniture and use of “own car” with transfer from Yamba to Coffs Harbour dated 16 August 2001 (Exhibit A9).

Superintendent Kuiters confirmed that these were documents found during his investigation.

61.     In conducting his investigation Superintendent Kuiters stated that he did not speak to Sgt Mackander, Mrs Forrester, Wendy Sutton, Kerry Drady or Donna Mort (nee Debenham). Superintendent Kuiters also stated that as a result of his investigation he concluded that Sgt Mackander and Mrs Forrester were in a long term relationship. He said he referred the matter of perjury to the Director of Public Prosecutions, who declined to prosecute the matter, as the evidence available did not meet the criminal standard of proof. Superintendent Kuiters, consequently recommended to the Commission that Sgt Mackander be dismissed from the Service under section 181B of the Police Act 1991 (NSW) on grounds of lack of confidence based on the issue of integrity. In so doing Superintendent Kuiters had formed the view that Sgt Mackander and Mrs Forrester were living in a partnership and were entitled to the monies claimed. In relation to the perjury he had formed a view which led to the matter being referred to the Director of Public Prosecutions. As a result of his investigation Superintendent Kuiters submitted his report to the Commissioner and is unaware of the outcome, other than the fact that Sgt Mackander left the Service on medical grounds. Superintendent Kuiters, also in the knowledge that Mrs Forrester had made an application for the Police Service, recommended that such application be rejected.

other evidence

62.     Sgt Mackander’s police medical records were tendered by the Applicant. The Tribunal notes that such material clearly defines Sgt Mackander as having suffered from a serious back pathology and mental health problems during his service. In relation to the latter it would appear that Sgt Mackander suffered from periodic depressive episodes, alcohol abuse and stress during the latter years of his service.

63.     The Tribunal also notes the following comments:

In a report dated 25 August 1999 by Dr Petersen, a clinical psychologist, in detailing a history of two assaults on Sgt Mackander in December 1998, stated:

“ Mr Mackander claimed that his wife told him of events later that evening that he doesn’t remember…..”

In a report dated 22 May 2000, Mr McCombie, psychologist, documents a history of Sgt Mackander’s divorce and goes on to detail:

“Apparently, since this time, he has been able to re-establish a new relationship, which is mutually supportive and rewarding. However, his new partner has also been targeted by the politician, who has waged the campaign of complaints against Sergeant Mackander”. 

In a report dated 5 April 2002 Mr McCombie again notes:

“He reported that the strain of the situation has destroyed his relationship with his partner. He reported that this loss had made him very upset and had produced some suicidal thoughts.”

In a report dated 24 August 2000 Professor Jones, a Consultant Psychiatrist states:

“From a social point of view, he was divorced in December two years ago, having been separated for one year before that. He is currently living on his own.”

The Tribunal noted no other relevant comment on Sgt Mackander’s clinical notes pertinent to his domestic relationship in the period 1997 to 2002.

mrs susan forrester

64.     Mrs Forrester told the Tribunal that she separated from her husband, Dallas, on 7 June 1997; that she moved with her two sons Luke and Todd and lived with her daughter, Lisa for some two to three weeks, before moving to a flat at Marsden Street, Dubbo, where she remained for some four months. Throughout this period Mrs Forrester denied having an intimate relationship with Sgt Mackander and that she did not know where he lived. Mrs Forrester stated that she, Luke and Todd next moved in with her sister, Wendy at 14 Condon Place, Dubbo, where she remained until July 1998. Mrs Forrester spoke of Mr Forrester calling a couple of times at the Marsden unit, making occasional phone calls and driving past quite often. Sgt Mackander was noted as being present on one occasion when Mr Forrester was dropping off Todd.

65.     Mrs Forrester stated that she never lived at Narromine. She believed that divorce documents were served at the Narromine address because her husband was trying to prove that a relationship existed between her and a man, who was able to support her, namely decreasing the amount he would have to pay in the property settlement. Mrs Forrester stated that she did visit the police residence at Narromine on several occasions, parked her car in a shed in the yard of the residence while working at the police station to avoid inclement weather and attended occasionally on weekends, where on one occasion Mr Forrester did drop the children off at that address. Mrs Forrester further stated that she would visit a friend in Narromine.

66.     Mrs Forrester said her son, Luke has a learning disability and she enrolled him from March 1998 in the Narromine School for his betterment. This involved giving the Police residence address at Narromine, as the place of Luke’s residence. Mrs Forrester stated that she did this with Sgt Mackander’s consent. Mrs Forrester stated that Todd remained at school in Dubbo, spent every second weekend with Mr Forrester, while Luke, who did not get on with his father, often remained with her, and would travel with her on those weekends to play with friends, while she was visiting friends in Narromine.

67.     Mrs Forrester stated that she worked as a VIP at Narromine Police Station two days a week. She said that she did not deny an allegation from Mr Forrester that she was in a relationship with Sgt Mackander as she thought that he would leave her alone if he believed she had re-partnered. Mrs Forrester stated that she was not at Narromine on the day the divorce papers were served, and that she found them in her pigeon hole at the Dubbo Police Station on the following day, having been forwarded by Sgt Mackander. Mrs Forrester stated that she was upset by the content of the divorce papers, including the inference that she was residing in Narromine, the date of separation, the statements said to have been made by Sgt Mackander and the issue of Todd travelling daily to school from Narromine.

68.     Mrs Forrester related to having heard of Sgt Mackander’s proposed transfer to Yamba, when he spoke of it in the meals room at Dubbo, and at the time she was talking to others of moving to Queensland. Mrs Forrester stated that Sgt Mackander issued an invitation for her and her two children to share the four bedroom house at Yamba, an invitation which she accepted some one to two weeks later, without any further discussion with Sgt Mackander. Mrs Forrester, in considering her decision during this period, believed it presented her and her two children with an opportunity to get away and start a fresh, and without continuing hassles from her ex husband.

69.     Mrs Forrester described the furniture items which she took from the marital home at the time of separation; the furnishings purchased when she moved into the flat at Marsden Street; the movement of some items to her sister’s house at Condon Place, with the remainder being stored by agreement with Sgt Mackander at the Police Residence at Narromine. Mrs Forrester stated that her furniture was stored in two bedrooms at the Narromine Police Station from October 1997, with Sgt Mackander utilising particular items, such as the washing machine, refrigerator, table and chairs. Mrs Forrester believed that Sgt Mackander had minimal furniture following his divorce.

70.     In relation to the move to Yamba, Mrs Forrester stated that she moved her remaining furniture from Dubbo to Narromine in her nephew’s utility on the day the furniture from there was being uplifted to Yamba. Mrs Forrester stated that she made a few amendments to the removal documentation at that time to reflect the addition of other items of furniture which had not been recorded.

71.     Mrs Forrester stated that she was unaware that she had been named as next of kin for Sgt Mackander or that her address was stated as the police residence at Narromine on police documentation (T46, p206).

72.     Mrs Forrester said that on the trip to Yamba she travelled in her car with her son and her other son travelled with Sgt Mackander in his utility.  Sgt Mackander, Mrs Forrester and her two sons stayed overnight stay in Tamworth and shared a single room because of availability. Meals and accounts were paid for by Sgt Mackander. Mrs Forrester believed she may have contributed financially on an occasion and offered to contribute to motel expenses. She believed the police would cover the removal expenses.  

73.     Mrs Forrester stated that she had not met any of Sgt Mackander’s relatives who were living in Dubbo prior to moving to Yamba and had not met Ms Drady. Mrs Forrester stated that her only contact with Sgt Mackander prior to moving to Yamba, had been in her work at the Dubbo Police Station and her two days a week at Narromine.  

74.     Mrs Forrester confirmed that her understanding prior to moving to Yamba was that she and Sgt Mackander would each occupy half of the police residence at Yamba. Further, when they arrived in Yamba, the residence was not ready for occupation, so she and the children stayed in a motel and Sgt Mackander stayed at the police station. Mrs Forrester stated that they occupied the residence on 8 July 1998, with her lounge suite, TV, coffee table, computer and computer desk occupying the lounge room, her double bedroom suite in the main front bedroom which she occupied and a sofa bed in the family room where Sgt Mackander initially slept A cupboard and Sgt Mackander’s personal things were located in the dining room, together with a mattress leaning against the wall.

75.     Mrs Forrester stated that Sgt Mackander made overtures about furthering their relationship within a week of arrival at Yamba. In declining such overtures Mrs Forrester told Sgt Mackander of her sexual preference. Mrs Forrester stated that Sgt Mackander respected her position thereafter.

76.     Mrs Forrester spoke of her awareness that Sgt Mackander and a lady called Ms Mort evolved a relationship while Ms Mort was living at Admiralty Court, a short walk from The Mainbrace residence. Mrs Forrester stated that she became aware of this relationship when Sgt Mackander was staying one to two days a week at The Mainbrace residence and Ms Mort was coming around to pick up mail and messages for Sgt Mackander. Mrs Forrester assumed that when Sgt Mackander was absent from the residence he was staying at Ms Mort’s, because he would instruct her to tell callers to ring him on his mobile number.  Mrs Forrester believed this relationship to commence six weeks after their arrival in Yamba. Mrs Forrester believed the relationship ended in February 1999, when Sgt Mackander announced his intention to move back and set up in the dining room. Mrs Forrester confirmed that Sgt Mackander established the dining room as his own, which involved laying out his bed.

77.     Mrs Forrester stated that she first met Ms Drady some two to three months after moving to Yamba when Sgt Mackander brought her to the house, just as she was leaving for a weekend away. Mrs Forrester stated that she was unaware of Sgt Mackander’s relationship with Ms Drady at that time but later, during Sgt Mackander’s heavy drinking episode while on suspension, was made aware of the relationship between Ms Drady and Sgt Mackander, when she rang Sgt Mackander’s sister to seek assistance in his management.

78.     Mrs Forrester confirmed that Mr Forrester came to Yamba to pick up the boys and that her daughter, Lisa, came on two occasions, once with her brother Dallas T. Ms Forrester also confirmed that Sgt Mackander’s brother, Malcolm, and his two sons Trevor and David visited on occasions.

79.     Mrs Forrester stated that she never spent either a Christmas Eve or Christmas Day in Yamba. In 1998, she stated that she returned to Dubbo, having left Yamba the day after the Beachside function. Mrs Forrester stated that she stayed with her daughter at Siem in 1999 and in Dubbo in 2000. She said that at Christmas 2001 she drove to visit her sister in Tamworth on Christmas morning and in 2002 she returned to Dubbo on 26 February.

80.     In relation to Christmas 1998, Mrs Forrester confirmed that she had made arrangements with Mr Stephen Ball to store a Christmas present for her son, Luke at his house and place it in her garage as a surprise for his return on 27 December 1998. The present, a fishing boat and motor, was launched the next day. Mrs Forrester stated that she had withdrawn $300 from a flexi teller machine at Dubbo on 24 December 1998 to assist in the cost of Christmas festivities and that she did not attend a barbeque at Yamba on Christmas Eve 1998.

81.     Mrs Forrester stated that she did not attend a barbeque on 1 January 1999 as she worked from 10pm the previous evening until 6am that day. She noted that Shane Day’s arrest occurred at 2.30am that morning. Mrs Forrester confirmed that she attended a barbecue at the Daley residence on 1 January 2000; that she arrived alone and stayed some two to three hours; that she was unable to recall whether Sgt Mackander was present, noting that he would have been on suspension at that stage. Mrs Forrester stated that she had never shown Mrs Daley around The Mainbrace residence, noting Mrs Daley’s familiarity with the layout of the residence. Mrs Forrester believes she met Senior Constable Daley at the Police Station within two weeks of arriving in Yamba and that she was introduced as Sue Forrester, a VIP from Dubbo, and not as Sgt Mackander’s partner, a form of address Mrs Forrester has never heard anyone, including Sgt Mackander, ever state. Mrs Forrester stated, in nominating her understanding of the word partner, that she did not have a partner in 1998, and further believed it was not a term Sgt Mackander would have used, preferring to use the term “a lady friend”, which he used in relation to both Ms Drady and Donna Mort.

82.     Mrs Forrester confirmed that in Yamba she did drive around in the police truck often with Sgt Mackander as she was interested in police work. She said that she never held hands or was affectionate towards Sgt Mackander in public as she had neither a sexual nor romantic attraction to him, nor was Sgt Mackander the sort of person to participate in such activities. In particular Mrs Forrester stated that while she did attend the Seafood Expo in 1998 and she did walk down from the Police Station with Sgt Mackander, she did not hold hands with him and left after a short visitation because of allergy to seafood. Mrs Forrester denied attending any other Seafood Expo.

83.     In relation to the Beachside function in December 1998, Mrs Forrester remembers being introduced to Mr Bill Day by Mr Doughan. She stated that she was not introduced as Sgt Mackander’s wife or partner on that occasion.  Mrs Forrester stated that she met Shane Day during his arrest on 1 January 1999 and that she gave a statement to Senior Sergeant Jim McArthur in relation to a complaint about his arrest. Mrs Forrester stated that she was aware of other investigations into matters including the bowling club incident in April 1999, the travel arrangements to Yamba and the school uniforms. Mrs Forrester was not involved in the bowling club incident and was unaware of any outcome in relation to the removal expenses and Yamba travel claim. Mrs Forrester said that she accepted reimbursement for the school uniforms as Sgt Mackander said that his boss had authorised payment as she worked as a VIP. She said that Sgt Mackander had also put a claim in as he had no one else to claim for and that at the time she was struggling.

84.     Mrs Forrester stated that Mr Ron Patmore told her via telephone that someone had alerted him to the fact that she and Sgt Mackander were in a marriage like relationship and that he was going to investigate the matter. Mrs Forrester stated that Mr Patmore later rang back and said that there would be no further action as he had spoken with Ms Drady in Dubbo.

85.     Mrs Forrester stated that the second investigation commenced a few days after she had left Yamba when Mr Behenna rang. Mrs Forrester stated that she responded with a detailed statement (T27). This included a copy of the residential tenancy agreement signed by Sgt Mackander for a residence at Coffs Harbour for the period of six months from 12 August 2001 at $240 per week; an assertion that Mr Bill Day and his friends were out to destroy Sgt Mackander and Mrs Forrester; a statement that she had been accepted to join the NSW Police and that she did not wish to live in Department of Housing Accommodation with her two boys because of her experience working as a lay visitor in police and an assertion that private rental accommodation was not affordable on her income. Mrs Forrester admitted that the transfer to and living arrangements in Coffs Harbour were likely to be of a temporary nature as Sgt Mackander intended to purchase a house, with prior arrangements having already been made with the owner for her to take over the house when Sgt Mackander moved out.

86.     Mrs Forrester’s statement (T27), also details the reasons for and the arrangements concerning car use at Coffs Harbour and her use of Sgt Mackander’s smaller car to drive to and from Yamba to the hair salon. In relation to furniture disposition on cessation, Mrs Forrester responded that all the items in the current house were hers, with the exception of a bed, a computer and a cupboard. At that time household expenses were being met by Sgt Mackander, as her income was being used for petrol, rent and food. Mrs Forrester believed that she would be able to contribute her share of household expenses once rent assistance was received. Mrs Forrester also detailed arrangements for purchase of food and house keeping requirements with either shared or individual purchase. Mrs Forrester stated that over the years while working as a VIP she had always paid for her coffee or meal when she and Sgt Mackander had a meal or coffee together.

87.     Mrs Forrester denied that Sgt Mackander was a silent partner in her business and detailed the reasons she borrowed $14,000 from Sgt Mackander, after first applying elsewhere. Mrs Forrester also denied that Sgt Mackander was either the boys’ guardian and/or minder, although she did confirm that Sgt Mackander was nominated as the contact person for the school in case of emergency, as he was the only person she knew in Coffs Harbour.

88.     In a Statement of Facts (T27, p122-130) Mrs Forrester detailed her personal history including:

·     A gay relationship between ages 15-17

·     Marital history

·     First employment in 1995 as a VIP

·     Her friendship with Sgt Mackander from whom she sought advice relating to her separation

·     Commencement of a relationship with a female which extended for a period of 10 months ending in April 1998

·     Her unsuccessful search for a job in January 1999

·     Commencement of a TAFE Course

·     The giving of evidence in the Shane Day case in June 1999

·     The first investigation by Mr Patmore

·     Her decision to start a hair salon, the difficulties encountered in running the salon and her decision to sell the hair salon business

·     Her search for finance  and her earlier loan to Sgt Mackander

·     Sgt Mackander as a nominal/silent business partner and Sgt Mackander’s involvement in the affairs of the salon after his suspension in December 1999

·     Her efforts to join the NSW Police and her acceptance on 22 August 2001

·     The decision to move to Coffs Harbour and to share a house with Sgt Mackander, while the business was being sold and the reasons therefor.

89.     Mrs Forrester also described the initiation of Centrelink’s second investigation conducted by Mr Behenna. In this investigation Mrs Forrester admitted to supplying a false address when she first moved to Yamba, a matter which she corrected in February 1999. Mrs Forrester stated that the reason for the false address was fear of harassment from her previous husband. Mrs Forrester also indicated that she took the remainder of her furniture and effects to Narromine on the afternoon before the day the removal van was scheduled to upload (T28, p128).

90.     Mrs Forrester confirmed that the Millwards did visit The Mainbrace residence approximately three days after their arrival and that they together with Sgt Mackander and herself attended the Neighbourhood Watch Meeting on 14 July 1998, during which Inspector Graham introduced her as a VIP, not as Sgt Mackander’s partner as suggested by the Millwards. Mrs Forrester confirmed that she attended a barbeque at the Millwards on 7 November 1998 together with her two boys and not with Sgt Mackander. Mrs Forrester confirmed that she attended the barbeque for the Police Commissioner on 18 December 1998. Mrs Forrester denied they acted as a couple on either occasion. Mrs Forrester also stated that while she did attend many jobs with Sgt Mackander, she also accompanied Senior Constable Daley. Mrs Forrester also agreed that Sgt Mackander took the boys fishing on two occasions, although she denied going with them. She also denied going shopping in a police vehicle or discussing divorce or property settlements with Sgt Mackander in front of Senior Constable Millward. Mrs Forrester also denied Senior Constable Millward’s assertion that she and Sgt Mackander had purchased an apartment at Beachside.

91.     In relation to Mrs Millward’s contentions, Ms Forrester stated that she neither spoke with Mrs Millward about the house or gave her a tour of The Mainbrace residence and that the Millwards stayed for about an hour. Mrs Forrester stated that she was not present at the time Sgt Mackander collected Mrs Millward from Maclean Hospital, but was at the Yamba Police Station when they returned. Mrs Forrester, admitted talking about scouts with Mrs Millward but stated that she would not have spoken about her personal life, and certainly would not have made statements about Sgt Mackander’s eating habits. Mrs Forrester denied holding hands with Sgt Mackander or having ever been introduced or referred to as Sgt Mackander’s wife, partner or de facto. Mrs Forrester affirmed that she could understand how it could be perceived that two people of the opposite sex living in the same house were a couple. However this did not worry her, as she shared a special friendship with Sgt Mackander, being more like a sister to him. Mrs Forrester also confirmed that Sgt Mackander’s relationships with Ms Mort and Ms Drady did not cause her any emotional discomfort, and that if indeed she was in a de facto relationship, she would not tolerate infidelity.

92.     In relation to financial affairs, Mrs Forrester stated that she made a loan offer to Sgt Mackander after hearing a response on the answering machine from his brother, Malcolm, denying his request for a loan. Mrs Forrester having received her divorce settlement in late 1998, made the offer which she said was reluctantly accepted. The loan amount was $12,000 and a statutory declaration was drawn up noting the transaction. This, Mrs Forrester stated was destroyed when the money was repaid in full in August 1999. It was noted that no interest was charged and that the documentation for the transaction was not congruent with financial transactions in her marriage, where everything was done in joint names.

93.     Mrs Forrester stated that she borrowed $14,000 from Sgt Mackander in late 1999, which she used to finalise payments associated with establishing her hair salon at Yamba. Mrs Forrester stated that she had experienced difficulty finding a job in Yamba in early 1999 and decided to establish a hair salon business. In doing so, she found it necessary to borrow extra money to finalise the fit out. Attempts to borrow from commercial sources were unsuccessful due to a lack of collateral. Mrs Forrester assumed Sgt Mackander obtained the money from his divorce property settlement. Mrs Forrester stated that the loan was repaid after the sale of her business in early 2002. A statutory declaration detailing the loan was drawn up and signed by both.

94.     Mrs Forrester stated that she did not contribute to the purchase of the unit at Beachside and that her and Sgt Mackander have never jointly owned or purchased real estate, furniture, or vehicles. Mrs Forrester stated she had purchased a Holden Jackeroo in June 1999 with a trade in and funds from her divorce settlement ($25,000). Mrs Forrester stated that she paid Sgt Mackander between $70 and $110 a week to cover rent and outgoings while in Yamba, until the time of commencing the business when rent was abated. In Coffs Harbour Mrs Forrester stated she paid $120 a week and on cessation of Centrelink benefits, she borrowed $1000 from her mother and $4,000 from her sister to get her through until the sale of her business and her return to Dubbo in early 2002. Mrs Forrester stated the sale of her business was finalised in February 2002. Mrs Forrester stated that she and Sgt Mackander had never had a joint bank account, nor had they borrowed money together or jointly or solely guaranteed a security for either or another party. Further neither had access to each others accounts, nor was Sgt Mackander a signatory to the business accounts. Mrs Forrester stated that Sgt Mackander would be reimbursed for any business expenditure and would be given a signed cheque to be completed, when he was picking up supplies for the business.

95.     As regards household expenses, Mrs Forrester stated that each bought their own food, although on occasions a bulk purchase of meat by Sgt Mackander would result in a cost contribution if Mrs Forrester had on occasion to use any. Mrs Forrester stated that she would cook for herself and the children, with Sgt Mackander joining for a baked meal once a week or a fortnight. Sgt Mackander would occasionally cook on the barbeque.

96.     In relation to other household activities, Mrs Forrester stated that Sgt Mackander would keep an eye on the boys when she returned late from TAFE on Tuesdays. Mrs Forrester stated that she did most of the housework, until Sgt Mackander was suspended from duties at which point his contribution to home duties increased slightly. She stated that Sgt Mackander always tended the lawns, even when he lived with Ms Mort, and he always did his own washing, sometimes throwing in a few of the boys’ yard clothes.

97.     Mrs Forrester stated that she commenced her hair salon business in February 2000 and that while Sgt Mackander was on suspension, he attended to closing the till as well as do the banking on Tuesdays, because she was at TAFE. Mrs Forrester stated that on leaving Yamba to go to Coffs Harbour, it was her intention to sell the business as she had an application to join the New South Wales Police once in Coffs Harbour. Mrs Forrester stated that she travelled to Yamba four days a week using Sgt Mackander’s smaller, less costly Hyundai. In turn she left her Jackeroo for Sgt Mackander to use if the situation arose.

98.     Mrs Forrester stated that in early July 2001, Sgt Mackander informed her that he was going to be transferred to Coffs Harbour within a month and that she would have to find alternate accommodation. Further she understood the reason for the transfer was Mr Day’s constant complaints about him, and that while he had a choice as to where he might go, he had no choice as to timing. Mrs Forrester stated that she had no input into the choice of Coffs Harbour. She said she had negligible money in the bank, a business making little if any money and a requirement for significant available funds to rent accommodation, so she asked Sgt Mackander whether it would be possible to share a house in Coffs Harbour. Mrs Forrester stated that Sgt Mackander responded with the advice that it could only be for a short time, as he was going to buy a house and bring Ms Drady over from Dubbo.    

99.     Mrs Forrester stated that they moved to Coffs Harbour in August 2001 and Sgt Mackander moved into his own place on 17 December 2001. Prior to his moving out Mrs Forrester borrowed $1,000 from her mother in November 2001, after her Centrelink payments had been terminated in September 2001. After he moved out, Mrs Forrester stated that she maintained the car arrangements and he would call around on weekends to say hello. Mrs Forrester stated she has remained good friends with they remain in touch on a fortnightly basis.

100.   Mrs Forrester stated that Ms Drady never came across to Coffs Harbour because their relationship ceased before Sgt Mackander purchased the house.

101.   In May 2001, Mrs Forrester applied for the New South Wales Police. Until acceptance and posting, it was her intention to reside with Sgt Mackander at The Mainbrace residence in Yamba. Mrs Forrester stated that there were problems with her application and in July 2001 the police ran an investigation into her relationship with Sgt Mackander in response to a complaint from Mr Day. Nevertheless she was notified in August 2001 that she had been accepted, but later this was withdrawn because, she believed, there was a report questioning her integrity. Mrs Forrester concluded by stating that she has returned to Dubbo, where she is renting a three bedroom house for $185 a week and hopes to join the Ambulance Service.

102.   In In oral evidence Ms Forrester affirmed the correctness of her response to a summary of evidence (T99, p429 to 434). In particular Mrs Forrester confirmed that the Millwards had attended at The Mainbrace residence probably on the Sunday, some three days after they moved into the residence on 8 July 1998. Further Mrs Forrester confirmed that they had a cup of tea at a dining table in the family room, around which there were six chairs. Mrs Forrester stated that she sat at the kitchen end of the table while Sgt Mackander sat at the family room end and the Millwards sat on either side of the table. Mrs Forrester stated that she did not own any stools and that it would have been difficult for people to sit on opposite sides of the kitchen bench. Mrs Forrester stated that Mrs Millward was not given a tour of the house on this occasion and that she did not have a conversations with Mrs Millward relating to the wall lamps and reading in bed. Further Mrs Forrester believed that the Millwards did not enter through the front door on this occasion, but came through the garage to the kitchen because the front door was always locked. Mrs Forrester believes she was introduced by Sgt Mackander as Sue, a VIP. Mrs Forrester confirmed again that Inspector Graham made the introductions at the Neighbourhood Watch meeting on 14 July 1998 and that she was not introduced as Sgt Mackander’s partner. Mrs Forrester also reconfirmed that she attended the barbeque at the Millwards on 7 November 1998 accompanied by her two sons and that she went in her small car. She believed that Sgt Mackander did attend in uniform and for a short period.

103.   In response to questions in cross examination Mrs Forrester detailed the following:

·     She first met Sgt Mackander before June 1996 when she inquired about becoming a VIP. She later attended a VIP meeting. Her friendship with Sgt Mackander evolved a few months later, when working with him, as her supervisor. Mrs Forrester stated there were two social occasions involving the nine VIP’s and that she and two others were driven to Gosford by Sgt Mackander to attend “a get together” for VIPs in March/April 1997;

·     Her friendship with Sgt Mackander continued to evolve and by 1997 she would discuss issues and seek advice concerning her continuing marital difficulties. Mrs Forrester again stated that at this stage she did not know where the sergeant lived in Dubbo;

·     Her husband only ever verbally abused her and any reference to domestic violence only alluded to verbal abuse. It was the threat of further such abuse that led her to declare an incorrect address to Centrelink when she first moved to Yamba;

·     She led her husband to believe, before her separation, that she was having an affair with Sgt Mackander in the hope that if her husband believed she had re-partnered it would be easier to “get away from him”. She was also trying to hide the gay relationship from both her estranged husband and her children;

·     She met her lady friend at a domestic violence seminar in mid 1997, and apart from this relationship, she has not had another relationship with either a man or woman since. Mrs Forrester denied that the relationship with the woman in Narromine was a fabrication;

·     She was unaware that she was officially transferred as a VIP to Narromine in October 1997. Prior to March 1998, when she commenced doing two days VIP duties per week in Narromine, she had been doing one day a week in Narromine since 1997. Mrs Forrester agreed that her official transfer to Narromine could have occurred at the same time Sgt Mackander was transferred to Narromine, although she has no recollection of the exact date the sergeant was transferred, despite her transfer, his transfer and her movement from her Marsden Street accommodation occurring in October 1997. Further, despite her lack of certainty over such dates and events Mrs Forrester can remember asking Sgt Mackander in the meals room as to whether she could store some furniture at the Police Residence in Narromine;

·     She did provide an incorrect address at Narromine so that Luke could be enrolled at the Narromine school, as he had refused admission to a Catholic School in West Dubbo at which Todd was enrolled. Nevertheless Luke did attend a Catholic School in Yamba and enjoyed it after three to four weeks;

·     She spent a lot of time with her friend at Narromine, and her boys would accompany her on such visits. Mrs Forrester declined to nominate the name of her friend in Narromine and stated that a police friend who could corroborate her stay was no longer able to be identified and approached;

·     She purchased two beds for the boys while living at Marsden Street, which later went to Yamba via Narromine. Further Mrs Forrester stated that the two boys never stayed at the police residence at Narromine, but did stay with her at her friend’s place;

·     Sgt Mackander had two dogs at Narromine, an elderly Labrador and a young German Shepherd which later he gave to Todd, because he was attached to it and looked after it when Sgt Mackander was living with Ms Mort for six months in Yamba;

·     She believed that Sgt Mackander may have been contemplating suicide when he nominated her as his next of kin while living at Narromine, her beliefs arising from a later conversation with Sgt Mackander in Yamba at a time when he was depressed;

·     She denied living in a de facto relationship with Sgt Mackander at Narromine;

·     Her decision to accept Sgt Mackander’s offer to share the residence at Yamba was accepted without further discussion about arrangements including removal, rent, and proprietary of arrangement, although Mrs Forrester was prepared to share the rent and outgoings in the order of $70 to $110 per week;

·     Her furniture which was not in use had been stored at Narromine for an extended period. The records relating to the removal were prepared for the most part by Sgt Mackander and indicated an appropriate specific arrangement of such furniture in accordance with the house lay out. Mrs Forrester again confirmed that she had added items to the furniture inventory which Sgt Mackander had overlooked;

·     She offered to pay a half share of the removal expenses within three days of moving to Yamba but Sgt Mackander declined her offer in relation to both the removal and travel expenses, despite her continuing to make such an offer. Mrs Forrester stated that Sgt Mackander told her that it was “alright” as they were moving him, that she was a VIP and that it was the same as moving his brother if he was living with him;

·     The expenses claim made by Sgt Mackander for the removal to Yamba involved the movement of an existing household from Narromine, as did the claim for travelling expenses. Mrs Forrester denied having knowledge of either claim. Mrs Forrester believes she may have made an offer to contribute to some meal expenses;

·     In relation to the reimbursement of costs for school uniforms purchased in Yamba, Mrs Forrester accepted such money on the basis of Sgt Mackander’s explanations and actions and her belief she had made a significant voluntary contribution to New South Wales Police, with reimbursement being a measure of appreciation. Mrs Forrester stated that she was appreciative of the reimbursement because she needed the money but was not involved in the writing of the claim or actually seeing the prepared claim form at that time. Mrs Forrester also noted that Sgt Mackander may have picked up some of the uniforms using funds provided by Mrs Forrester and had receipts issued in his name. Mrs Forrester denied that she was lying about her relationship with Sgt Mackander to the Tribunal as a consequence of these claims being made;

·     In relation to a further claim for school uniforms at Coffs Harbour, Mrs Forrester stated that she paid for them by giving money to Sgt Mackander who paid at the time of collection and was issued with receipts in his name. It is noted that he claimed reimbursement for expenses associated with the purchase of school uniforms for his two sons. Mrs Forrester stated that she was unaware of the claim, never received any reimbursement, and that Sgt Mackander must have extracted the dress code for the school from the bookshelf and again without her knowledge;

·     The Colonial State Bank Account in Dubbo was a personal account that could only be accessed by her with the account receiving her Centrelink payments. Mrs Forrester stated that she accessed this account at an ATM at Dubbo 24 December 1998, as indicated by the account records, with the only card issued for this account. Mrs Forrester confirmed that the $300 was her contribution to the family Christmas dinner;

·     The three withdrawals nominated in Exhibit R1 (the same Colonial account) for 29 December 1999 reflected a purchase made during her Christmas stay in the area, a purchase in Yamba on that day and her travel to Tweed Heads to purchase goods for her business on the same day. Mrs Forrester was unable to explain the $100 Raymond Terrace withdrawal on that day, having returned home to Yamba on 27 or 28 December 1999;

278.   Mrs Forrester details her various changes of address during this period, none of which included Narromine. Her evidence is supported by her sister.

279.   On the evidence before the Tribunal, the Tribunal is faced with the evidence of Ms Sutton that Mrs Forrester and her two children resided with her in Dubbo during the period up to July 1998, although the Tribunal notes that Ms Sutton stated that both children attended a Dubbo School prior to their move to Yamba. Against such material is the evidence of Mr Forrester, Mr Everingham and Mr Mackander, each of whom has had their evidence criticised on grounds of reliability and/or basis for opinions expressed. The Tribunal while noting other aspects of the Applicant’s contention which they say leads to the presumption that Mrs Forrester and her two children were living at The Narromine Police Residence, is that each piece of evidence, either alone, or together does not in the Tribunal’s view establish residency by Mrs Forrester and her children at the Police Residence in Narromine. As a consequence the Tribunal concludes that it cannot be reasonably satisfied that Mrs Forrester and her two children resided at the Police Residence at Narromine.

280. The Tribunal, mindful of section 4(3A) of the Act, concludes that with the parties living separately on a permanent basis at that time, the existence of a marriage like relationship is an opinion not ordained by the Act. Accordingly the Tribunal concludes that Sgt Mackander and Mrs Forrester were not a couple for the purposes of the Act during the period October 1997 to July 1998.

yamba – coffs harbour

281.   In addressing the evidence prior to the move to Yamba, it is evident that Sgt Mackander and Mrs Forrester had an evolving relationship at that time. There is evidence of growing dependency,, as exampled by their work relationships and their willingness to do things for each other. Such examples in the evidence include, the storage and utilisation of furniture at Narromine, provision of the Narromine address to the school and the nomination of Mrs Forrester as Sgt Mackander’s next of kin. The material points to Sgt Mackander as having some involvement in the after school care of Luke and his transit back to Dubbo on some days.

282.   The Tribunal acknowledges Mrs Forrester’s purported same sex affair and the evidence of Ms Drady as to the casual nature of her affair with Sgt Mackander. The Tribunal notes that Ms Drady’s evidence records a much less frequent interaction with Sgt Mackander than he stated in his evidence. (four to five nights a week against Ms Drady’s three times a month). The Tribunal places little weight on the evidence of such affairs existing at that time. In so stating the Tribunal is of the view that Sgt Mackander’s affair with Ms Drady was a casual sexual affair, as she so describes and that Mrs Forrester’s affair would require an element of corroboration for the Tribunal to be satisfied that it in fact did occur in the light of her propensity to provide false addresses when it was to her benefit.

283.   The Tribunal has some reservation in accepting both Sgt Mackander’s and Mrs Forrester’s version of events of the preparation for the move to Yamba. In so stating, the Tribunal has difficulty in two people acting in the apparent casual way as regards their futures, as suggested by their evidence, as opposed to taking steps congruent with the evolution of their relationship. The Tribunal finds that while their motivations may have been different, the clear inference from the evidence is that it was a well planned, considered and agreed course of action by both parties. In this regard the Tribunal observes the nature of the removal documentation and the actions taken by both parties to undertake the removal process.

284.   The moving arrangements, the overnight in a single room in Tamworth and the payment of expenses during the travel by Sgt Mackander further leads to an inference in the Tribunal’s mind that it is a family on the move. This is further reinforced by the actions of Sgt Mackander to make a claim for removal expenses, remembering in turn that the ownership of a significant majority of the furniture rested with Mrs Forrester. Further he claimed for travel expenses and school uniform reimbursement for the two boys.

285.   The Tribunal is next confronted with the evidence of the Millwards about what they heard and what they observed in the first few days after Sgt Mackander and Mrs Forrester arrived in Yamba, together with that of Ms Schmolke as to what she heard and observed at Neighbourhood Watch Meetings on 13 and 14 July 1998. Similar evidence as to the nature of the relationship between Sgt Mackander and Mrs Forrester, and the lay out of the house is presented by the Daley’s. Mr Day, Mr Tiley and Ms Fisher, all detail their observations of the relationship between Sgt Mackander and Mrs Forrester and what they heard on particular occasions.

286.   The Tribunal observes that over the period commencing 1 January 1999 until December 2001 (a period during which both Sgt Mackander and Mrs Forrester were on notice from April 1999 that their relationship was under scrutiny) the totality of significant  evidence addressed was:

·     Sgt Mackander was seen to attend school at Yamba on one occasion; supervising the children after school on Tuesdays; took them and others fishing on occasions, helped the boys with their Maths homework; and paid Luke $10 for mowing the lawn;

·     Sgt Mackander, while suspended from duty, was seen to engage in activities associated with the preparation and carrying on of a hair salon business;  

·     Sgt Mackander and Mrs Forrester made a loan to the other with supporting documentation. Mrs Forrester to Sgt Mackander a loan of $12,000 in December/January 1999/2000, repaid in August 2000 without interest; Sgt Mackander to Mrs Forrester a loan of $14,000 in December/January 2001, repaid in full in February 2001 and again without interest;

·     Mrs Forrester and her two children remained in residences at Yamba and Coffs Harbour until Sgt Mackander moved to a flat in December 2001

·     Sgt Mackander made a claim for removal expresses and school uniform expenses for his two sons after transfer to Coffs Harbour in August 2001;

·     Sgt Mackander purchased a Hyundai motor car while in Yamba and that on moving to Coffs Harbour Mrs Forrester used to drive the vehicle to and from Yamba four days a week to attend her hair salon;

·     Sgt Mackander was nominated as an emergency contact person at the school attended by the two boys at Coffs Harbour;

·     Various recordings in Sgt Mackander’s medical notes indicate Sgt Mackander referring to a wife when detailing events of December 1998, in August 1999, and further in May 2000 a reference to a mutually rewarding and supportive relationship with a partner.

287.   The Tribunal, while not wishing to either minimalise or maximize the nature of this evidence, suggests that such evidence clearly points to a relationship between Sgt Mackander and Mrs Forrester which has evolved to a point of mutual dependency, a caring attitude of each for the other, and a relationship which involves co-responsibility for the care and welfare of the children. At this point in the discussion of the evidence the Tribunal would consider that the nominated material is suggestive of Sgt Mackander and Mrs Forrester being involved in a relationship more akin to a marriage like relationship.

288.   In further consideration, the Tribunal observes that the two parties do not have joint ownership of land, homes, furniture or cars, nor does the Tribunal have evidence of joint bank accounts. The evidence before the Tribunal clearly defines the two parties as maintaining separate accounts, with separate personal and where appropriate business tax returns. Further there is clear evidence of Sgt Mackander buying two properties and certainly evidence that the property in Yamba was in his name only.

289.   In terms of conduct of household affairs the evidence suggests a clear separation of bedroom arrangements, cooking, cleaning, mowing and caring responsibilities for children at Yamba. In so stating the Tribunal is mindful of some evidence to the contrary (mainly the Millwards in relation to the care of the children, but in general terms the Tribunal in the absence of compelling and reliable evidence one way or the other, concludes that the preponderance of the less than reliable evidence points to the conclusion with which the Tribunal has suggested.

290.   In addressing issues of household financial payments, the Tribunal observed that Mrs Forrester made a material contribution to rent and outgoings, as well as paying the cost of food for her and the two boys. While this was the general principle, her contribution seemed to reduce in either whole or in part when she was in financially difficult circumstances (during the early months of opening her business and again in September 2001 when her Centrelink payments were ceased). It is the Tribunal’s view that this and the inter person loans between Sgt Mackander and Mrs Forrester, as well as the change of cars to allow Mrs Forrester to drive to Yamba and back four days a week could be seen in one light as containing an element of pooling of financial resources, while in another that of a friend helping out a friend in the short to medium term. By virtue of the events occurring over time, and in the event that no set repayment time scales were established for the loans, the Tribunal is more inclined to favour the pooling of resources assessment.

291.   It is the social aspects of the relationship that provides significant challenges in this matter. The evidence suggests that Sgt Mackander had a relationship with Ms Mort from August 1998 to February 1999, (although Ms Mort herself would have it continuing to May 1999) and frequently returned to Dubbo to visit Ms Drady. It would appear Sgt Mackander’s relationship with Ms Drady relationship did not further evolve until December 2001, if one is to believe the evidence presented to the Tribunal as regards that relationship. Further Mrs Forrester would have the Tribunal believe that she was in a same sex relationship in Dubbo/Narromine from July 1997 to March 1998, and thereafter has not been involved in a relationship with anyone. 

292.   The Tribunal has already voiced doubt as to the status of Mrs Forrester’s declared same sex relationship and her stated sexual preference. This doubt is not abated by the repetition of evidence by various witnesses that this was a well known rumour in Dubbo circles. Mrs Forrester’s sexual preference was evidently not an issue for Sgt Mackander, who despite talking to others of her sexual preference clearly admitted to wanting their relationship to develop further prior to leaving Dubbo.

293.   The issue is not made any easier by the material which suggests Sgt Mackander may have introduced or referred to Mrs Forrester as his partner and/or wife in the months that followed their arrival in Yamba.  It is evident to the Tribunal that the barbeques on 24 December 1998 and 1 January 1999 did not occur despite the Daley’s assertions that they did. While the evidence clearly points to Sgt Mackander and Mrs Forrester being elsewhere on the evening of 24 December 1998 and that the Hembrows and Huttons did not arrive in Yamba until some many months after 1 January 1999, there is sufficient evidence to suggest that such a form of introduction may have been used during the early months of their arrival in Yamba. The Tribunal is mindful that there is evidence to the contrary, but the source of such is Sgt Mackander and Mrs Forrester, and on one occasion Inspector Graham, again these witnesses being less than credible witnesses in the Tribunal’s view.

294.   The Tribunal has also noted the living and domestic arrangements as stated by those who had occasion to visit The Mainbrace residence, being relatives and/or friends of either Sgt Mackander and/or Mrs Forrester. Needless to say such evidence suggests a relatively clear cut definition of duties and responsibilities within the domestic environment. The Tribunal observed that there was little reliable evidence, apart from perhaps the Millwards, adduced to refute such delineation, although such refutation is assisted by the somewhat artificial nature of the evidence provided, in that it would suggest an extraordinary rigidity of  arrangement.

295.   The Tribunal observes that much was made by the Applicant of Sgt Mackander’s involvement in the preparation and operation of Mrs Forrester’s hair salon. That he was involved there is no doubt but this activity, when considered in the light of his suspension for a period of some 15 months, is understandable. The Tribunal concludes that Sgt Mackander was no more that an interested party (by way of association) with time on his hands.

296.   The Tribunal also observed that there was no evidence which suggested that Sgt Mackander and Mrs Forrester and her two boys enjoyed holidays together as a unit, although there is some suggestion they may have been in the same area together and may have spent a day together (August 2000) when Sgt Mackander took them out in a police boat. There is also some evidence that Mrs Forrester would drop off items to Sgt Mackander’s mother and accompany him on visits to Dubbo on birthdays or Mothers’ Day. The Tribunal has some concern as to the accuracy of the August 2000 date as Sgt Mackander would have been suspended at that time.

297.   In terms of commitment to each other’s welfare, there are numerous examples of this with Mrs Forrester making arrangements for the care of Sgt Mackander in times of need (January/February 2000 and October 2001 when he was distressed) and during his trial, as evidenced by her displaying a sign outside her shop. In term Sgt Mackander clearly supported Mrs Forrester by way of doing some activities for her and assisting in carrying payment for and collecting school uniforms. Similarly when Mrs Forrester was in some financial distress, Sgt Mackander allowed for abatement of contributions towards rent and household outgoings by Mrs Forrester. Further the Tribunal noted Sgt Mackander’s commitment to supervising the two boys after school when Mrs Forrester was undertaking a TAFE course and when she was travelling to and from Yamba, while residing in Coffs harbour. In turn the Tribunal observed Mrs Forrester’s request for assistance for Sgt Mackander in February 2000, the return with his brother to Sydney, a period of rehabilitation in Sydney with his son and a return to Yamba, via Dubbo some weeks later.

298.   The Tribunal, in noting that Mrs Forrester stated that she moved to Coffs Harbour in August 2001 for financial reasons and to progress her ambition to pursue a career in the police force, would also add that such a move was congruent with an intention to remain in a relationship. In so stating the Tribunal reflects upon the evidence which indicates an evolving friendship since 1997 and a close working relationship in police activities in 1998 and 1999 and further a joint working involvement in the hair salon business.

299.   For the Tribunal to make a decision in this matter, it must be reasonably satisfied that the evidence before it allows such a decision to be made. The Tribunal in making such a decision is also mindful that it must consider all the circumstances of the relationship.

300.   In this matter, issues concerning the integrity of the evidence have been a matter of great concern to the Tribunal and this difficulty remains. There is, in the Tribunal’s view, no doubt that Sgt Mackander and Mrs Forrester were in a long term relationship. The issue is the nature of that relationship.

301.   The Tribunal has already alluded to a body of evidence which is significant in assisting the Tribunal to find its way through the morass of material. The police documentation relating to removal claims and travel expenses and reimbursement of school uniform expenses indicate that they relate to the movement of a family and its furniture. While one such activity (eg the transfer to Yamba) may be explainable, a repeated performance some three years later is difficult to rationalise, particularly when both Sgt Mackander and Mrs Forrester were on notice as to the nature of their relationship and particularly when the vast majority of furniture being moved on both occasions belonged to Mrs Forrester.

302.   While explanations have been provided by Sgt Mackander and Mrs Forrester as to the reasons for such activities, the Tribunal rejects such explanations as being less than credible.

303.   Further the Tribunal, while noting the maintenance of personal financial accounts and tax returns, albeit with no claims for a spouse/children, is satisfied that in effect there was a pooling of financial resources by way of shared rent, unsecured, non-interest paying loans, no dates of repayment of loans, and use but not ownership of vehicles.

304.   Further, the Tribunal is satisfied that each had for the other a commitment to provide emotional support as evidenced by Mrs Forrester’s concerns for Sgt Mackander’s welfare and in turn Sgt Mackander’s concern for Mrs Forrester and her two children.

305.   While there is no evidence of a sexual relationship between the two parties, the Tribunal remains sceptical as to the nature and intensity of, other relationships that each party were said to have had during the period. The Tribunal is mindful that Mrs Forrester stated that she was essentially not wishing to enter a relationship during the relevant period.

306.   The Tribunal is satisfied that during their early months in Yamba, Mrs Forrester was introduced as Sgt Mackander’s partner by Sgt Mackander, an issue which is further reinforced by the entries in Sgt Mackander’ medical file. Further the Tribunal is satisfied that others considered them to be in a committed and long term relationship. In referring to others the Tribunal is careful to limit such an observation to associates in Yamba who were assessing the nature of the relationship as they saw it and from what they heard.

307.   Similarly the Tribunal is satisfied that Sgt Mackander had a genuine interest in the care of the two children, as demonstrated by his interest in their welfare, attending soccer, taking them fishing, helping with homework, and being involved in their supervision after school. The Tribunal does recognise of course that the prime responsibility for their care rested with Mrs Forrester.

308.   The Tribunal in noting that Mrs Forrester provided the majority of the household furniture is in fact not surprised that Mrs Forrester was not a co-owner of the properties purchased by Sgt Mackander, as it is clearly a matter in which both parties elected to run their financial affairs, as Mrs Forrester did when she established her hair salon. To do otherwise may have resulted in outcomes, not desired by either party.

309.   Further the Tribunal, while aware of the designated lay out of The Mainbrace residence, and the stated household arrangements, finds that such arrangements are singularly at odds with the public image created by their consistency of working together in police activities, their partaking of coffee and meals together in public and an obvious expression that they enjoyed each other’s company in the workplace.    

310. It is for these reasons that the Tribunal concludes that there was a mutual commitment by Sgt Mackander and Mrs Forrester to each other during the period under review. Further, upon review of all the material and for the reasons outlined, the Tribunal is reasonably satisfied that Mrs Forrester was living in a marriage like relationship with Sgt Mackander under section 4(3) of the Act and therefore was a member of a couple for the purposes of the Act, pursuant to section 4(2) of the Act.

311.   The Tribunal, having concluded that Mrs Forrester was a member of a couple for the period nominated, further concludes that as a consequence there will be a debt owing to the Commonwealth. This will be remitted to the Applicant for recalculation in a view of the Tribunal’s findings.

312. In considering the issue of waiver pursuant to section 1237 AAD of the Act, the Tribunal, mindful of the prolonged investigatory phases in this matter and the quantum of debt involved, concludes that on the material provided, a finding of special circumstances cannot be sustained. In so stating and leaving aside issues of false statement, the Tribunal has not been made aware of circumstance surrounding Mrs Forrester that could be viewed as uncommon, unusual or exceptional particularly when it is understood that Sgt Mackander has not had to repay any monies to the Police Department. Accordingly the Tribunal finds no grounds for waiver pursuant to section 1237 AAD of the Act.

determination

313.   The Tribunal sets aside the decision under review and in substitution thereof determines that:

·Mrs Forrester was a member of a couple for the period 8 July 1998 until 17 December 2001, because she was in a marriage like relationship during this period;

·Mrs Forrester was not a member of a couple from October 1997 to 7 July 1998 as she was not in a marriage like relationship during that period; and

·The matter is remitted to the Applicant for the calculation of the debt for the period 8 July 1998 to 26 September 2001.

I certify that the 313 preceding paragraphs are a true copy of the reasons for the decision herein of Dr Campbell, Member

Signed:         A. Krilis
  Associate

Date/s of Hearing  10, 11, 12, 13 June 2003, 20, 21 August 2003, 5 April 2004

Date of Decision  27 July 2004
Counsel for the Applicant  Mr Mark Vincent
Solicitor for the Applicant  Ms Fiona McMullin
Representative for the Respondent          Ms Rachael Quinn    
Solicitor for the Respondent                      Mr Greg Peek