Secretary, Department of Social Services and Dianne Melvin

[2015] AATA 248

[2015] AATA 248

Division	General Administrative Division
File Number	2013/3269
Re	Secretary, Department of Social Services
APPLICANT
And	Dianne Melvin
RESPONDENT

DECISION

Tribunal	Deputy President S D Hotop
Date	24 April 2015
Place	Perth

The decision of the Social Security Appeals Tribunal, dated 24 May 2013, is set aside and, in substitution therefor, it is decided that:

·Dianne Melvin was a “member of a couple”, within the meaning of s 4(2) of the Social Security Act 1991 (Cth), for the whole of the period from 6 December 1999 to 8 May 2011;

·Dianne Melvin received an overpayment of disability support pension in respect of the period from 6 December 1999 to 8 May 2011 and the amount of that overpayment is, pursuant to s 1223(1) of the Social Security Act 1991 (Cth), a debt due to the Commonwealth by her;

·that debt is recoverable in full from Dianne Melvin by the Commonwealth in accordance with Pt 5.3 of the Social Security Act 1991 (Cth).

...............................[sgd].........................................

S D Hotop
  Deputy President

CATCHWORDS

SOCIAL SECURITY – member of a couple – marriage-like relationship – de facto relationship – criteria for forming opinion about relationship – respondent received payments of disability support pension (DSP) at single rate – respondent a member of a couple – respondent received overpayment of DSP – debt due to Commonwealth by respondent – debt cannot be written off – debt cannot be waived – debt recoverable in full from respondent – decision under review set aside

LEGISLATION

Social Security Act 1991 (Cth), s 4(2), s 4(3), s 4(3A), s 1223(1), s 1231, s 1232, s 1236, s 1237A(1) and s 1237AAD

CASES

Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546

REASONS FOR DECISION

Deputy President S D Hotop

24 April 2015

Introduction

1. Dianne Melvin (“Ms Melvin”) has been in receipt of disability support pension (“DSP”) at the “single rate” under the Social Security Act 1991 (Cth) (“the SS Act”) from 13 March 1980.

2. On 9 November 2010, following the execution by the Australian Federal Police (“AFP”) of a search warrant in relation to premises in which Ms Melvin was then residing, a Centrelink officer decided to suspend payment of DSP to Ms Melvin pending investigations regarding her entitlement to receive DSP.

3. On 29 November 2010 a Centrelink officer decided to reduce the rate of DSP payable to Ms Melvin from 15 August 1991 and to cancel her DSP with effect from 26 June 2007 on the ground that she and Alan Markland (“Mr Markland”) had been “members of a couple” from 15 August 1991.

4. On 7 June 2012 a Centrelink officer decided that Ms Melvin had received an overpayment of DSP for the period from 15 August 1991 to 26 October 2010 and that the amount of that overpayment was a debt due to the Commonwealth by her and should be recovered from her.

5. Following a request by Ms Melvin to Centrelink for an internal review of the above decisions, a Centrelink Authorised Review Officer (“ARO”), on 7 January 2013, decided that Ms Melvin had received an overpayment of DSP in the amount of $165,779.74 for the period from 22 August 1995 to 8 May 2011 and that that overpayment was a debt due to the Commonwealth by her and was to be recovered in full from her.

6. On 24 May 2013 the Social Security Appeals Tribunal (“SSAT”) set aside the abovementioned decision of the ARO and remitted the matter to the Chief Executive Centrelink for reconsideration in accordance with the direction that “Ms Melvin’s DSP is to be restored from date last paid and her entitlement to DSP be recalculated” on the basis that “Ms Melvin is single and has not been partnered with Mr Markland” and on further specified bases comprising its findings in relation to Ms Melvin’s assets.

7. On 5 July 2013 the Secretary of the former Department of Families, Housing, Community Services and Indigenous Affairs – now, the Secretary, Department of Social Services (“the Secretary”) – applied to the Tribunal for review of the abovementioned decision of the SSAT.

   The Evidence

8. The evidence before the Tribunal comprised the “T Documents” (T1–T168, pp 1–4723) lodged by the Secretary in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and:

   ·Exhibits A1-A5 tendered by the Secretary;

   ·Exhibits R1–R10 tendered by Ms Melvin; and

   ·the oral evidence of Ms Melvin, Alan Markland, Adam Melvin, Shannon Melvin and Paul Montani.

   The Issues

9. The primary issue for the Tribunal’s determination is whether Ms Melvin was a “member of a couple”, as defined in s 4(2) of the SS Act, in the period from 22 August 1995 to 8 May 2011 (“the relevant period”).

10. If it is determined that Ms Melvin was not a “member of a couple” in the relevant period, various issues relating to Ms Melvin’s ownership of assets in that period may arise for determination.

11. Finally, if it is determined that Ms Melvin received an overpayment of DSP for the relevant period, or part thereof, the issue will arise as to whether the resulting debt due to the Commonwealth by Ms Melvin, in the amount of that overpayment, should be recovered from her or should instead be written off or waived.

    “Member of a Couple” - The Relevant Legislation

12. From 29 September 1995 to 30 June 2009, subss (2), (3) and (3A) of s 4 of the SS Act relevantly provided as follows:

    “ Member of a couple – general

    4(2)Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

    (a)       …; or

    (b)       all of the following conditions are met:

    (i)the person has a relationship with a person of the opposite sex (in this paragraph called the ‘partner’);

    (ii)the person is not legally married to the partner;

    (iii)the relationship between the person and the partner is, in the Secretary’s opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship;

    (iv)both the person and the partner are over the age of consent applicable in the State or Territory in which they live;

    (v)the person and the partner are not within a prohibited relationship …

    Member of a couple – criteria for forming opinion about relationship

    4(3)In forming an opinion about the relationship between 2 people for the purposes of … subparagraph 2(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:

    (a)the financial aspects of the relationship, including:

    (i)any joint ownership of real estate or other major assets and any joint liabilities; and

    (ii)any significant pooling of financial resources especially in relation to major financial commitments; and

    (iii)any legal obligations owed by one person in respect of the other person; and

    (iv)the basis of any sharing of day-to-day household expenses;

    (b)the nature of the household, including:

    (i)any joint responsibility for providing care or support of children; and

    (ii)the living arrangements of the people; and

    (iii)the basis on which responsibility for housework is distributed;

    (c)the social aspects of the relationship, including:

    (i)whether the people hold themselves out as married to each other; and

    (ii)the assessment of friends and regular associates of the people about the nature of their relationship; and

    (iii)the basis on which the people make plans for, or engage in, joint social activities;

    (d)any sexual relationship between the people;

    (e)the nature of the people’s commitment to each other, including:

    (i)the length of the relationship; and

    (ii)the nature of any companionship and emotional support that the people provide to each other; and

    (iii)whether the people consider that the relationship is likely to continue indefinitely; and

    (iv)whether the people see their relationship as a marriage-like relationship.

    4(3A)The secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.”

13. In the period from 22 August 1995 to 28 September 1995, subpara 4(2)(b)(i) of the SS Act provided as follows:

    “ the person is living with a person of the opposite sex …”.

14. As at, and from, 1 July 2009, and for the remainder of the relevant period, subss (2), (3) and (3A) of s 4 of the SS Act were relevantly amended as follows:

    ·in subpara 4(2)(b)(i) “a person of the opposite sex” was substituted with “another person, whether of the same sex or a different sex”;

    ·in subpara 4(2)(b)(iii) “marriage-like” was substituted with “de facto”;

    ·in subpara 4(3)(c)(i), between “to” and “each”, the words “, or in a de facto relationship with,” were inserted;

    ·at the end of subpara 4(3)(e)(iv) the words “or a de facto relationship” were added;

    ·in subs 4(3A) “marriage-like” was substituted with “de facto”.

    Some background facts which appear not to be in dispute

15. Ms Melvin, who was born in August 1953, was married to Paul Melvin from 1972 to 1983 and they had two children, namely, Adam (born in 1972) and Shannon (born in 1975).

16. In December 1979 Ms Melvin sustained a serious neck injury resulting in “incomplete tetraplegia” (partial loss of function of both upper limbs and both lower limbs) and she subsequently underwent cervical spinal surgery.

17. In the early 1980s Ms Melvin and her two children moved into a Homeswest rental property in Matlock Street, Mt Hawthorn.

18. Ms Melvin first met Mr Markland at the time of the America’s Cup in 1987 and they commenced a relationship (including a sexual relationship) which ceased in 1988.

19. Mr Markland became the registered proprietor of a property in Pawlett Way, Karrinyup on 29 April 1987.

20. Ms Melvin next met Mr Markland at a Christmas party in 1989 and they have thereafter stayed in touch.

21. In 1990 Mr Markland, who was then a director with a 1/3 share of a company called Allwest Environmental and Pest Management Pty Ltd (“Allwest”), told Ms Melvin about problems he was having with the other two directors and shareholders of the company, and Ms Melvin gave him some advice and offered to attend directors’ meetings, in his absence overseas, as his proxy.

22. On 29 May 1990 Mr Markland executed a Power of Attorney whereby he appointed Ms Melvin as his attorney to act on his behalf.  The Power of Attorney document was prepared by a solicitor and Mr Markland’s signature was witnessed by a solicitor.

23. On 29 August 1991 Mr Markland made a Will whereby he appointed Ms Melvin as his executor and trustee and made her the sole beneficiary of his estate.

24. On 2 April 1992 Ms Melvin was appointed as a director of Allwest.

    The Evidence of Ms Melvin

25. Ms Melvin confirmed that she had signed a written statement, dated 4 July 2014, for the purpose of this proceeding and that its contents are “true and correct to the best of [her] knowledge”.  Ms Melvin’s statement is as follows:

    “ A     BACKGROUND

    1My name is Dianne Lillian Melvin of … Oakover Road, Middle Swan, Western Australia (Oakover Road).

    2My date of birth is … August 1953.

    3I was married to Mr Paul Melvin for 7 years.  We separated late 1979 and divorced on 26 October 1983.

    4I have 2 sons with Paul, Adam Melvin (Adam) and Shannon Melvin (Shannon) who are both adults.

    5I am not married and I am not in a de facto relationship.

    6In 2010, after Centrelink and the Australian Federal Police (AFP) executed a search warrant at Oakover Road, Centrelink decided to suspend and then cancel my disability support pension (pension).  Centrelink made a decision that I was in a de facto relationship with Mr Alan Markland (Alan) and have been overpaid my pension.  I do not agree with the Department’s decisions.

    B     CIRCUMSTANCES BETWEEN MR ALAN MARKLAND AND ME

    7In 1987, I met Alan at the America’s Cup.  He and I briefly dated but our relationship ended in 1988.  He wanted me to have a serious relationship with him but I was only interested in casual dating.  Our relationship did not work out because he was telling me how I should raise my sons and I did not like that.  I knew then that a relationship with Alan would not have worked.  We stopped seeing each other in 1988 and have not had a sexual relationship since then.

    8About 12 to 18 months later, I met Alan again at a friend’s Christmas party.  Alan and I started talking to each other and he told me that he had bought a 1/3 share in a company called Allwest Environmental and Pest Management Pty Ltd (Allwest).  He also told me about the problems he was having with the other two owners/directors who were a father and son.  Alan wanted to sell Allwest.  I told Alan to call Ferrier Hodgson to get advice about liquidating Allwest.

    9I also told Alan he should attend the directors’ meetings and he said he could not do this because he was working away most of the time.  I offered to go to the meetings for him.

    10Around the same time Alan engaged Mr Ronald Bower as his lawyer, and Alan gave me a power of attorney.  I do not recall the exact date but I have been shown the power of attorney and it was signed on 29 May 1990 (T143 pages 4252 [sic] to 4527).

    11The wives of the other directors of the business were working in Allwest and were drawing wages for their work.  I said to Alan that he should not allow them to be paid directors’ wages.

    12In early 1993, Alan decided to buy out the other directors.  When this happened, I took a more hands on role in Allwest.  I enjoyed working in Allwest, and after a few years I noticed it started making money.  I performed administrative tasks and human resource work.  If I was at Allwest I answered the telephone and I paid the accounts when they were due.  I interviewed applicants for jobs at Allwest.

    13Alan and I realised we could work well together in the Allwest business.  We did not live in the same house during this time.

    C… MATLOCK STREET, MT HAWTHORN

    14In the early 1980s my sons and I moved into a property situated at … Matlock Street, Mt Hawthorn (Matlock Street).  I was renting this from Homeswest.  Alan never lived at Matlock Street.

    15In 1997, I was really sick and my health was bad.  I did not tell my sons about my health problems.  When I needed a few days to myself I would go to stay at Alan’s house at … Pawlett Way, Karrinyup (Pawlett Way) for a few days at a time – Alan was not there as he was working overseas.  When he came back to Pawlett Way, I went home to Matlock Street or to stay with my sister, Ms Liz Fotheringham (Liz), or at mum’s place.  During this time, Matlock Street was still my home.

    16I rented Matlock Street for about 20 years, and I really wanted to buy it.  The house needed a lot of work done on it because it was an old house in Mt Hawthorn.  I told my sons that we should buy the house and we could renovate it together and it would be a good investment for them.  I also told them that they would need to put a lot of money and time into renovating the house.

    17When my sons and I bought Matlock Street it had to be in my name because it was an ex-Homeswest house.  Homeswest would only let me buy the house as I was the tenant.  I cannot remember the exact date when my sons and I bought Matlock Street but according to the certificate of title, Matlock Street was registered under my name on 27 October 2000 (T92 page 1449).  It was financed by a loan with Bankwest in the amount of $200,000.  The loan was in my name only as the house was in my name.  The deposit was $46,000.  I received $20,000.00 to put towards the deposit from Homeswest because I had lived at Matlock Street for a long time and I looked after it well.  I had to use my savings and credit card and ask for money from my sons to pay the balance of the deposit.  I remember that I ‘maxed out’ my credit card for this purpose.  I think that there was a shortfall of money to pay the deposit and I borrowed it from Allwest.  It was recorded in the books at the time and whatever I borrowed I repaid.  This was the first and last time I borrowed from Allwest.  I did not borrow from Alan.  My recollection is that I asked Alan if I could borrow money from Allwest as a director of the company.  I think I said words to the effect ‘I have worked for so long at Allwest and I need money to pay the shortfall on the deposit for Matlock Street.’  He agreed.

    18My sons and I had an agreement that we would each pay 1/3 of the mortgage repayments which was $400.00 a month each.  I could not afford to pay the mortgage on my own.  I cannot recall the date of the discussion between me and my sons about the purchase of Matlock Street.  I remember that the three of us were in a room at Matlock Street and we talked about the repayments of the mortgage.  My sons had my bank details and they agreed to pay their mortgage contributions directly to my cheque account.  At the time we were all living at Matlock Street.  There was nothing in writing.  I cannot remember the exact words we said but it was my intention that it would be something we bought together and would always be our family home.

    19Matlock Street needed renovations so we started renovating it.  The front fence fell over, the laundry needed work and the house needed to be rewired.  Over time we also built a garage, put in a new bathroom and a new roof and replaced the floor boards.  My sons and I borrowed against Matlock Street to do the renovations.  The plan was that I would live at the house and we would do it up, but then later I realised I could not afford to keep up the mortgage repayments.

    20Around November 2002, my son, Adam moved in with his father, Paul.  I remember Adam’s move and that I was still living at Matlock Street at that time.  This was around the time when Adam turned 30 years old.

    21On 30 May 2003, my brother, John Hatton, passed away.  I had been very close to John and it proved to be a very difficult time in my life.  I remember I was living at Matlock Street when he was diagnosed with cancer.

    22In early 2003, Adam was not making his regular repayments on Matlock Street.  There was a time when he did not meet his contributions to the mortgage for 6 months.  When Adam started defaulting, I decided to rent out Matlock Street so the rental income would pay for some of the mortgage repayments.  Shannon and I needed another means to pay the mortgage repayments so the rental payment assisted in paying that.  I then went and stayed at … Main Street, Osborne Park (Main Street) for a while.  Alan was living at Pawlett Way at that time.

    23At the end of 2003 or early 2004 Shannon and I moved back to Matlock Street after the tenant moved out.  When we moved back, Shannon fixed up the backyard.  I was often living alone at Matlock Street because Shannon was working away.  Sometimes he stayed with me when he was back in Perth and sometimes he stayed with his girlfriend.

    24In February 2004 I was still living at  Matlock Street and Adam had moved back in with me.  I recall he was living with me when he bought his house in Ellenbrook.  This was about 2005.

    25At around the same time (in 2004) my sons and I started arguing regarding the mortgage repayments for Matlock Street.  I was receiving the bank statements because the loan was under my name and the mortgage repayments were automatically deducted from my account.  I could see when Adam was not paying his share.

    26Around late 2005 and early 2006, Adam stopped making his contributions to the mortgage repayments completely, and I think I received letters of demands [sic] from the bank.  I needed some finance so I could continue paying the mortgage repayments.

    27I did not want the bank to take Matlock Street so I paid the mortgage repayments using my credit card (which was maxed out in the end) and I borrowed money from my sister.  I did not borrow from Allwest or from Alan to pay the mortgage.

    28I cannot remember the exact date when I applied to refinance Matlock Street through Macquarie Bank, but I have been shown the Macquarie Mortgage Application for Finance dated 22 June 2006 (T91 pages 1423 to 1430).  Mr John … (John) was the broker who assisted me to get the loan from Macquarie Bank.  At this time, John had just left Bankwest and was starting a new business as a broker.  I needed to refinance Matlock Street so I rang him, and he came to see me at Allwest to talk about this.  John was organising finance for about 4 of the staff at Allwest at about the same time.  John suggested a bank from the eastern states.  John prepared the refinancing documents.  I have seen a copy of the loan application (T91 pages 1423-1430), and I can confirm that this is not my handwriting.  I can’t remember saying that I was married and I don’t know why that is on the application or that Alan was my spouse.  This is not something I would have said.  John brought the documents to Allwest so I could sign them.  I remember I signed the documents at the Allwest office and unfortunately I did not check the information on the application first.  My focus at the time was ‘saving Matlock Street’ and organising finance to do this.

    29I used the draw down facility of the mortgage of Matlock Street to pay all of Adam’s debts which were about $52,000.00.  I also had loaned a total of $20,000 to my ex-husband, Paul.  He would borrow $5,000.00 every now and then, and he never paid me back. I would have also repaid the money I borrowed from Allwest.  The remainder of the money from the draw down facility was to be used to finish the house renovation.  After the loan was refinanced, the monthly mortgage repayments went from $1,200.00 to $1,400.00  I knew we could manage them if Adam paid his share.

    30I was hoping that Adam and my ex-husband would pay me back so I could reduce the size of the loan but they did not.  I did not tell Shannon or Adam that I was going to refinance Matlock Street because Shannon would have been really angry at Adam for not paying his share.  Shannon would also have been angry with me if he knew I had lent money to my ex-husband.  I used to tell Adam not to loan any money to my ex-husband and I did not want to look like a hypocrite to him if he knew I had lent Paul money.

    31I did not discuss my plans to refinance Matlock Street with Alan and as far as I am aware, Macquarie Bank did not contact him regarding this application.  Alan was not a co-borrower or a guarantor for this loan.  John had previously assisted Alan with the purchase of his property situated at Oakover Road.

    31Between about December 2006 and March 2007 I was living at Adam’s house at Ellenbrook. Adam was living and working overseas.  When I moved into Adam’s house the water had been disconnected and I found out that he had many unpaid bills.  My sister Liz and I ended up packing up the house and we arranged to rent it out for Adam.  Adam was having financial problems, and I felt it was all too much especially with my health problems.  Liz helped me by taking over what needed to be done and keeping an eye on the house and the tenants for Adam.

    33On 18 June 2007 I told Centrelink that:

    (a)   I had moved out of Matlock Street on 13 June 2007;

    (b)   I was receiving rental payment of $275.00 a week from the tenants; and

    (c)   I was housesitting at Pawlett Way (T57 pages 1026 to 1207 [sic]).

    34There was no formal agreement between me and the tenants.  The tenants would pay the weekly rent and would deposit it into my account.  I used this to put towards the loan repayments.  I can’t recall how long the tenant stayed.

    35During this time, Adam was working overseas, but he did not make any contributions of [sic] the mortgage repayments of Matlock Street and he continued to default on the mortgage repayments of his own property at Ellenbrook.

    36I cannot remember the exact date when I sold Matlock Street to Polaris Industries Pty Ltd (Polaris), but the documents I have been shown including the letter from the settlement agent and the cheque butt show the date 6 January 2009 (T80 pages 1301 to 1302) and the certificate of title shows that Matlock Street was registered to Polaris on 7 January 2009 (T84 page 1317).  Polaris was a company set up by my sons.  From the sale proceeds I paid off the mortgage and a credit card debt and the remainder of the sale proceeds in the amount of $451,000.00 went to Shannon.  I did not see the balance as being mine because of the work that my sons had done on Matlock Street so I transferred the balance to Shannon because Shannon was living in Perth during this time.  I did not transfer any of the sale proceeds to Adam because he was overseas and he had difficulty in managing money.

    37On 20 January 2009 I went into Centrelink Innaloo and advised them of the sale of Matlock Street and what had happened to the proceeds of the sale (T11 p 144 and T13 p 146).  The person I spoke to looked at all the documents and did not ask me for any more information or tell me that I should not have given the proceeds of sale to my sons.

    D … MAIN STREET, OSBORNE PARK (‘Main Street’)

    38I can remember that Alan purchased the property at Main Street in the early 1990s, but I cannot remember the exact date.  A print out of a sales enquiry details for Main Street property shows that the execution date of Transfer of Land was ‘01/01/0001 [sic]’ (T75 page 1292).  Alan never lived at Main Street.  He bought it to use it as a storage facility for Allwest.  Alan was lived [sic] at Pawlett Way until he moved to Oakover Road.

    39As far as I can remember, my mother moved into Main Street in about August 1992 until February 1997, although the Department says that my mother moved into Main Street in either 1992 or 1993 (Applicant’s Statement of Facts, Issue [sic] and Contentions pages 10 and 13.  My mother had sold her house in Barnes Street because of problems she was having with her neighbours.  My mother was looking for alternative accommodation.  She had previously met Alan at the Allwest office when she visited me there.

    40Main Street was in poor condition, and Alan did not intend to rent it out.  When he heard my mother was looking for somewhere to live he said to me that my mum could live there rent free so long as she paid any outgoings and kept an eye on things.  This conversation took place at Allwest and I cannot recall whether my mother was there at the time or whether I told her about it later.

    41As far as I can remember my mother lived in Main Street until about February 1997.  At this time she was diagnosed with cancer.  She then moved in with me at Matlock Street when she had surgery to remove her kidney.  She later moved to my Brother Michael’s house in Mandurah.

    42In or about 1999 or 2000,I was having problems in my relationship with Adam as his father was taking money from him.  So in or about March 2000, I moved into Main Street and stayed there for a few months.  There were numerous periods where everything got on top of me.  It could have been my health or issues relating to my ex-husband, Paul, and this was one of those times.  I also stayed there for short periods on other occasions.

    43I do not know when Alan sold Main Street, but shows [sic]  that the execution date of Transfer of Land was dated ‘03/09/2009’ (T82 page 1306).  He deposited the sale proceeds into the superannuation fund.  This was not money for my benefit or use.

    E… PAWLETT WAY, KARRINYUP

    44I do not know when Alan purchased Pawlett Way, but the certificate of title (now superseded) shows that Pawlett Way was registered under Alan’s name on 29 April 1987 (T86 p 1337).

    45In 1995, I organised to have the gas connected at Pawlett Way for Alan.  Alan had bought a gas heater and he asked me to get the gas put on for him while he was working overseas.  He was living at Pawlett Way, but he was away for weeks at a time so I told him that I would organise to connect the gas for him.  I was living at Matlock Street during this time, and my gas account for that property was under the name Melvin.

    46When I rang to connect the gas I said my name was Dianne Melvin and they told me I could not open an account because I was not an owner or a tenant.  I told them that I had a power of attorney for Alan.  They said that I would have to wait until Alan was back in Australia.  I hung up and rang back again and said that I was ‘Dianne Markland’ and they connected the gas straight away.

    47I told Alan that I had put the Alinta Gas account in the name of ‘D Markland’ so when he received it he should pay it.  He said words to the effect that ‘That was fine’.  Alan always paid the Alinta Gas account with his money.

    48.In about 1997, I first stayed at Pawlett Way.  This was when Alan asked me if I could keep any eye on Pawlett Way while he was away  He offered this after an incident when he asked me to visit Pawlett Way to check on the pool.  He had engaged a guy to clean his pool while he was away.  When I arrived at Pawlett Way, I saw that the pool was not cleaned and I told Alan about this and he was not happy.  He said words to the effect of ‘How about I ask you to come over to check the pool?’.  I said that I did not want to be paid and I would be happy to go to his house to check the pool and have a swim.

    49I accepted Alan’s offer because at that time my sons were teenagers/young adults and were difficult to love [sic] with at times.  There was an available room at Pawlett Way and I was happy to spend some of my time in Pawlett Way alone.  During this time there were also a lot of break-ins around the area so it was good that I visited and stayed at Pawlett Way occasionally.  I was still living at Matlock Street and I would only spend a couple of days every now and then at Pawlett Way.   I did not live at Pawlett Way at this time.  When Alan was back in Perth I did not stay at Pawlett Way.

    50Between about 2001 to 2004, Alan had 3 lots of surgery on his back.  He asked me to provide him with assistance because he was in bad shape.  He could not get off the couch.  I agreed to move in after each operation.  The longest period I stayed there would have been about two or three months.  I looked after him by driving him to appointments and doing his housework.  After he recovered from each operation I went back to live in my house at Matlock Street.

    51After I moved back to Matlock Street after the third surgery in 2004, I would visit Alan at Pawlett Way occasionally and I may have stayed for a few days at a time.  I would do this if Alan needed help due to his health issues.  During this time, I would also stay at Liz’s place from time to time.

    52Alan and I did not sleep together when I was living at Pawlett Way.  We were not in a relationship. Alan stayed downstairs in the living room that had been made into a bedroom for him, and I had a bedroom upstairs.  He had a bathroom downstairs and I used the bathroom upstairs.  I was moving between Matlock Street and Pawlett Way.  I considered my home to be Matlock Street.  My personal mail (for example, letters from my doctor) was addressed to Matlock Street, and other mail (for example, Centrelink letters and my accounts) was addressed to Pawlett Way.  I gave Pawlett Way as my address for non-personal matters.

    53When Alan was away, I would get his mail (for example, utilities accounts and credit card statements) and it was convenient for me to get my mail in Pawlett Way too instead of driving back to Matlock Street to check if there were any mail for me.

    54At the end of 2006, my doctor informed me of some more bad news regarding my health, and because of this I wanted to live on my own.  This is why I had moved to Adam’s house at Ellenbrook but when this did not work out I moved back to Pawlett Way which was empty at that time because Alan was living at Oakover Road.  I continued to live at Pawlett Way (from time to time) from 2007 until it was sold in 2008.

    55In 2009, I was diagnosed with stenosis and I did not want people to know my medical condition.  It was a very difficult time for me.

    F… OAKOVER ROAD, MIDDLE SWAN

    56I cannot remember the exact date when Alan purchased Oakover Road, but the certificate of title states that it was registered on 13 July 2005 (T83 page 1309).  He lived at Oakover Road from the time he purchased it, and I was living at Pawlett Way from time to time.  When Alan found the property at Oakover Road I was in hospital.

    57When Alan bought Oakover Road in 2005, he was not working and he had two properties namely, Pawlett Way and Main Street.  He was planning to sell Allwest.

    58I cannot recall who the original loan was with.  I have seen documents that indicate it may have been with Bankwest (T94 page 1600 to 1610).  As I recall John … was working at Bankwest at the time.  I recall it was a low doc loan because Alan did not have a job at that time and he did not want to use his savings.  The documents referred to above show that the loan was refinanced with RAMS Home Loan (RAMS) in July 2006 and John who was now working as a broker also arranged this.  I was with Alan when he had a discussion with John at Allwest although I cannot now recall whether this was about the original loan or the refinancing.  The broker suggested to Alan that as Alan and I were both directors of Allwest if we had both our names on the loan documents we could show we were both drawing a wage.  I did not contribute to the purchase of Oakover Road or buy any things for the property.  I didn’t make any payments in respect of the loan.

    59Alan hated my ex-husband, Paul, and did not want to be associated with someone who had that surname.  He did not want anything associated with him down [sic] in the name ‘Melvin’.  He told me words to the effect that ‘I hate your ex-husband because he was a drug addict and a pusher’.

    60At the time I knew my name was going to be on the loan documents for Oakover Road but not on the certificate of title.  I recall that later Alan wanted to get the certificate of title because he did not want RAMS to have anything more to do with it.  He had a fight with them because they would not let him pay the mortgage off in full at RAMS Midland branch so he had to go through the RAMS office in the Eastern States to pay off the mortgage.  When Oakover Road was paid off Alan got the certificate of title.

    61When I saw the certificate of title with my name on it, I immediately told Alan that we should go to Landgate to take my name off.  Alan and I went to Landgate and we were advised that it would cost about $30,000.00 to take my name off the title.  I told him that this was disgraceful.  He said words to the effect that ‘What’s the big deal?  I am not paying $30,000.00.  I have already paid that much money.  Dianne Markland doesn’t exist anyway.’

    62In about April 2008 I agreed to move to Oakover Road.  I cannot remember the exact date when Alan sold Pawlett Way, but the SSAT decision dated 24 May 2013 shows the date of sale as 25 August 2008 (T2 page 13).  The certificate of title shows that Pawlett Way was registered under the new owner’s name on 30 September 2008 (T86 page 1332).

    63After I moved into Oakover Road I was the one who collected the mail and dealt with it.  I would open and file the mail that relates to the Superannuation Fund, but I would never look through them in detail.  This was the same for accounts that came in.  I never open Alan’s personal mail.  If Alan is away I pay his accounts using his credit card.  If he is home he pays the accounts.  I often paid bills relating to Alan’s motor vehicles including insurance policies.  Although the caravan is in Alan’s name, the insurance is in both our names so I can be deal [sic] with the insurance of the caravan.  I also paid house rates and insurance.  I needed to be named on the policy so I could deal with the companies.  I used his credit card to pay for the accounts so that he gets an itemised list of everything paid and he can see when things have been paid.  I have never had access to his savings/cheque accounts and he never had access to mine.  I have never used his credit card to pay my bills.

    64I am aware that Alan has other accounts in Singapore and I have never opened those bank statements.  He told me that if anything comes from Citibank Singapore I should not open it.  I have never asked him what he does with his money, and he has never asked what I do with mine.

    65I know that when the search warrant was executed Centrelink seized some accounts from people who did work at Oakover Road which were addressed to both Alan and me.  These were Alan’s bills but as I was a joint owner on the title of the property they were addressed to both of us.  Alan made all the decisions about everything to do with Oakover Road.  For example, the plans for additions/renovations and Council approvals were all decisions he made, not me.

    66Before I moved to Oakover Road, Alan and I had a discussion about the arrangement for payment of utilities.  I said that I would not pay for water or electricity because he had too many power tools and animals and he used much more power and water than I did.  I said I would maintain the house, and would help out in the garden if I could, but I did not clean his personal areas such as his bedroom and bathroom.  I would oftentimes provide practical care and assistance for him especially after his knee surgery.  In return for the housework I performed and the time that I acted as his carer I would not pay rent.

    67Alan had already been living at Oakover Road for a few years when I moved in.  He had already filled the house with his own furniture and appliances.

    68I have never considered that I own half or have any interest in Oakover Road.  I have not treated it like that.  For example, in around 2005, my mother had a knee reconstruction and hip replacement and needed somewhere to stay after the surgery.  She moved into Liz’s place.  At the time I arranged for Foxtel to be connected so she could watch the shows she liked (T160 page 4665).

    69I would have liked Mum to move in with me as Oakover Road is a big house and I had time to look after her.  If I owned Oakover Road I would have organised for my mother to live there with me.  She could have had her own room in Oakover Road because it is a 4-bedroom, 2-bathroom house, but she never stayed because Alan would not have allowed her to stay there.  Instead I visited her 3 times a week in Balga.  I took her to all her medical appointments.  When I was going to be in hospital or unavailable to help her, I tried to get her into respite care.

    70At the time I decided to move to Oakover Road I did not feel as though I had anywhere else to go.  Although I could stay with my sister Liz she had enough problems of her own so I could not stay there long-term.  I could not live with my mother.  Alan told me that he also needed someone to look after the house and his animals whenever he was away.  He was away for significant periods and the arrangement suited both of us well.

    71Alan and I agreed that I would have the back end of the house and he would have the front end of the house.  Since the house was full of his furniture, all my furniture was stored in a 20 foot sea container in the yard.  The office is on the one side of the house and I go in there to pay the bills and other things.  The house has a library, kitchen and laundry.

    72Alan’s bedroom and bathroom are at the front of the house.  He had his own ensuite bathroom.  The old dining room and lounge has been turned into his personal room, and no one is allowed in there.  The part of the house where he stays has deadlocked double doors.

    73There is a big TV room, and Alan is the only one who uses it.  I have never sat in that room.  There is another small lounge with a TV in it, and this is where I sit to watch TV.  Alan never sits in there.  He does not know that I have used his bedroom to watch TV in the past while he was away.

    74Some of my medication and Alan’s medication was and still is in a medicine cabinet located in his bedroom.  I have morphine as part of my medication and I keep this and my Indone in the medicine cabinet because I am paranoid that if I put it somewhere without a lock, my young granddaughters could swallow and overdose on them because they look like lollies.  My other (everyday) medication such as Panadeine Nexium and drugs for my arthritis are kept in the kitchen drawer.

    75I have 2 granddaughters who have stayed overnight or for a couple of days at a time with me at Oakover Road.  Ashley was about 8 months old when Adam and Claudia brought her back to Perth in January 2009 and used to sleep over at Oakover Road from when she was about 1 year old.  For the first year or two she came regularly and after she started Kindy she would come for a regular Friday night sleepover.

    76Shannon’s daughter Kenze was born in November 2011.  When Kenze was a baby she would stay with me at Oakover Road and now I look after her for a couple of days once a month.

    77The medicine cabinet which is in Alan’s bedroom is the safest place because he has a double deadlock on the door outside his room.  It was the safest place to store my strong medicine.  There was no cabinet in my bedroom or bathroom that is lockable.

    78I did not regularly go in and out of Alan’s bedroom to access my medicine.  My everyday medicine such as Panadeine, Voltaren and Nexium were all in the kitchen drawer.  I know that if another person accessed my everyday medicine, he/she would not be in serious harm from taking them. Whereas if another person was able to get access to my morphine, then it would be more dangerous to him/her.

    79I take morphine ‘as needed’ depending on the degree of pain I am in.  Having to go to the medicine cabinet to get the morphine also reminded me whether I have taken it.  This removed the possibility of me overdosing from my morphine medication.

    80When I moved into Oakover Road, Alan told me that I was not allowed to move anything.  I was never allowed to move anything of his in the wardrobes.  He said ‘Don’t you touch my clothes’.  The wardrobe in my bedroom was already full of his clothes.  His every day clothes were hung in the wardrobe of his bedroom; his good clothes and suits were in my bedroom; and his old clothes and things were in the spare room.  I keep most of my clothes in a wardrobe in the garage.  I believe that Alan thinks that if he gives me a wardrobe he will not be able to get me out of Oakover Road.  He said to me on numerous occasions words to the effect of ‘You haven’t got much to take with you when you move out.  It wouldn’t take you too much to get out of here’.  If I had all my clothes in my bedroom then he would have seen that I was invading his space, and it would also appear to Alan that I was living there permanently.  This is why a lot of my things are kept in the sea container.

    81When Centrelink and the AFP executed the search warrant they noticed that there were a few of my things in Alan’s wardrobe.  I kept maybe 10 things in his wardrobe.  In one drawer in his bedroom was some of my underwear and blouses.  They were there because this was where there was some space.  It is easy for me to grab those clothes when I go to stay somewhere.  The drawers in my room have most of my clothes that I use every day in there.

    82I have never kept any of my items in Alan’s bathroom.  When Centrelink and the AFP executed the search warrant there were none of my items in his bathroom.  I did not store my perfume or jewellery in his bedroom.  I kept them in my bedroom and the toiletries were stored in my bathroom.

    83Liz and my sons have visited me at Oakover Road and they had seen how the house is set up.  Aside from family members visiting me at Oakover Road my friend Jane has visited me and she has seen how the house is set up.  She has seen where my bedroom and bathroom are located and knows that I have my own bedroom and bathroom.  She has also seen the shipping container in the yard where I store personal belongings including clothes and my personal items and my wardrobe in the garage.  She knows that Alan and I were not in a de facto relationship.  My friends Heather McGarrity and Gail McMahon have visited me at Oakover Road too.

    84When the AFP raided Oakover Road on 9 November 2010 (as per the search warrant) (T116 pages 3027 to 3041), they only seemed to focus on certain areas of the house.  I told them to look inside the dresser drawers in my room because that is where I kept all my clothes, but they never did.  They only looked in a couple of drawers and in the wardrobe.

    85I also told the AFP to go to the garage because my clothes are in there, but they did not put that comment in their report.

    86There is room in the house for me to put some of my personal items inside but they are still kept in the sea container because Alan would not let me move them inside Oakover Road.  The things I had at Main Street and Pawlett Way and in the garage at Matlock Street are inside the sea container.  He told me words to the effect that ‘As long as you can put them in the sea container you can bring them here.  I don’t want your shit inside’.

    87As stated above I also go and stay with my mother and sister from time to time.  This could be for 4-5 days or for a week.  I also have some of my clothes at my mother’s house and at Liz’s house.

    88The AFP found a postcard with a photo of my brother, John, in Alan’s room.  I received it after he had died in 2003 and I remember giving it to Alan to look after it.  I did not want to lose that photo.  I tend to move from one place to another and so I asked Alan to look after the photo for me.  Then I forgot I had given it to him.  I thought I had lost it and I was really unhappy.  I was so relieved when the AFP found it.  The only reason they did not take it off me was because I burst into tears I was so happy they had found it.  Todd from Centrelink who was there at the time told the AFP to let me keep it.

    89I told Alan about Centrelink’s decision but I did not discuss it in detail with him.  He said words to the effect that ‘I can’t believe they did this to you.  I don’t understand’.  But he was most concerned about getting his things back from Centrelink and the AFP.  He would ask me ‘When are they going to get my stuff back?  I want my certificate of title back’.  He went ballistic and has also been angry and upset when asked to be involved in the appeals process as he said it had nothing to do with him.

    90I continue to live at Oakover Road because I do not want anyone else to have to put up with my health conditions and my bad temper.  I see myself as a friend who shares accommodation with Alan.  The house in Oakover Road is big which means we are out of each other’s way, and he is often overseas so I have the place to myself.  The medication I take can really put me into a very bad mood.  I did not want to be with family in this state because it is not fair on them.  If Alan is home the house is big enough that we can keep out of each other’s way.

    91I am also staying in Perth because of my mother.  She is now 92 years old.  I want to stay near her and to help her.  If she dies, I plan to move to South America and live with my son and his family.

    G THE SUPERANNUATION FUND

    92Paul Montani did the tax returns for Allwest from the 2006 financial year and onwards (see below).  He was involved in finalising everything after the sale of Allwest.  Paul was also involved in setting up a self-managed superannuation fund called the Alan and Dianne Superannuation Fund (Superannuation Trust Fund).

    93.Alan, Jane and I went to see some financial advisors when the Allwest business was sold in mid-2007.  Jane and I could not make any sense of what they suggested that Alan should do with the money other than to lock up the money in shares.  Jane and I suggested to Alan that he should talk to Paul Montani about options and Paul suggested Alan put the proceeds into a self-managed superannuation fund.

    94In 2007, Paul also set up a Westpac account for Alan.  This was a share trading account that would be linked to the Superannuation accounts once Allwest was sold.  I did not set up the Westpac account and I was not even aware of what it was for.  The Superannuation money went into a series of term deposits until the Superannuation Trust Fund was set up.

    95Paul asked me what I was going to do with my superannuation fund.  He advised me that Alan and I could combine our superannuation funds.  He said that if there were 2 of us Alan could get more of his money into his superannuation fund.  Paul said he would record the money separately so we could always see whose money was whose.  I told Paul that I was living at Pawlett Way and asked him to send the information to me at Pawlett Way.  I think I told him that Alan was living at Oakover Road.  Paul said I could legally have my money in a bank or self-managed superannuation fund.  Paul also said that if Alan gifted me $146,402.02, Paul could put it all into the Superannuation Fund, otherwise Alan had maxed out the $1 million that he could otherwise put in.  However, in the event that I ever wanted the money out, I could only draw out my share – my initial amount plus any profit earned on that portion of the money.  I always knew this amount ($146,402.02) was Alan’s money, not mine even though he gifted it to me on paper.

    96I did not take a lot of interest in the Superannuation Trust Fund because I did not have to pay account or bank fees.  Alan and I agreed that if I wanted to get my money out at any time, he will give it to me.

    97At the time the Superannuation Trust Fund was set up I had about $37,000.00 in my own superannuation fund.  My sons have always been the beneficiaries of my superannuation.

    98Alan uses money in the fund to trade in shares.  He has shown me how to look up the shares prices so I can give him information about this when he is away but I do not buy or sell shares or make any decisions about this as the bulk of the money is Alan’s.

    99I did not know Alan had made a will in 1991.  He told me at the time that he had spoken to Jenny at Westpac and she said that he should make a will.  I did not know about the contents of Alan’s will until the search warrant was executed.  I saw a copy of the will and it was dated 29 August 1991 (T144 pages 4528 to 4532).  Alan is not a beneficiary of my will, and I do not know now where my will is located.

    H MY WORK INVOLVEMENT WITH ALLWEST

    100As mentioned earlier, it was in the early 1990s that I started helping out at Allwest, and I enjoyed it.  I was also made a director of Mechanical Offshore Services Pty Ltd, but as far as I know it never traded.  I have no idea why Alan set it up or what happened to it.

    101Although I was appointed as a director of Allwest and assisted Alan by overseeing the day to day management he has always been the sole owner of Allwest, and he made all management decisions concerning it.

    102There were some periods where I had very little involvement at all with Allwest.  I would help out when it suited me and I was well enough and as a result I did not expect to get paid.  Alan received all the profits while it was trading and received the proceeds of sale when it was sold in 2007.  He had a full time manager employed as well.

    103I did not receive any pay from Allwest but the company gave me the use of a car and paid for my petrol and cigarettes.  I could not work because of my injuries and medical condition but I could also not stay home.  I was just involved in Allwest as an interest for myself and to help Alan.  I helped out when I could.

    104I agreed to help out Alan with Allwest because he was always working overseas.  But as time passed I enjoyed being active and being capable of doing something.

    105Around 1990, when Allwest was growing as a business Alan got an AMEX credit card for the business so expenses could go through it and he could see what was coming out of the credit card.  The credit card was under Alan’s name not in the name of Allwest.  He told me that he would make me an additional card holder so I could pay the bills.  Later on the manager also had a supplementary card.

    106I never used the credit card for anything except for Allwest.  I used it for business purposes and not for personal use.  The name on the supplementary credit card was Dianne Markland, but I did not take any notice as most of the business transactions occurred over the telephone.  I was not there when Alan arranged the application for my AMEX supplementary card.  He would have done the application over the telephone.  When I saw the credit card with the name Dianne Markland I said to him words to the effect ‘What’s this?’.  He said to me ‘Don’t worry about it.  You pay the bills’.  Even if things were under Dianne Markland, he never considered them to be under my name, he always considered it to be under his name.

    107By 1999, Allwest was already an established business and it was making money.  In that year, Alan and I decide to create a new company called Termite Systems Management Pty Ltd (Termite Systems).

    108Termite Systems was part of Allwest.  It was set up as a marketing and advertising strategy regarding the use of a new termite product.  In reality, Allwest was the same business as Termite Systems because it operated in Allwest’s office and Allwest staff would provide the services to the customers.

    109With respect to the motor vehicles that Allwest had purchased at Big Rock Toyota (Big Rock), all the documents were prepared by Capital Finance, the financing company of Big Rock Toyota.  I would not have even read those documents.  The documents would just be set out in front of me and I would sign them. I knew Alan would pay the bills and was never going to default because as long as I have known him, he had never defaulted on anything.  These transactions were all business transactions for Allwest and were not for my personal benefit.

    110Alan had bought many vehicles through Capital Finance.  Alan would call the manager of Big Rock and make the purchase with a phone call.  He would advise the manager that I would be collecting the vehicle.  I would get a call from Big Rock advising me that the vehicle was there and I could collect it.  I just went down to Big Rock to pick up the vehicle, and because the credit card was in ‘Markland’ I just kept using that name.  Big Rock never asked me for any identification because they knew who I was.  When Allwest vehicles were being serviced and Alan was away I would take them to Big Rock and would also pick up spare parts from them from time to time.  I knew the guys at the service/spare parts department.

    111I never said that I was in a de facto relationship to anyone including whenever I was involved in business transactions for Allwest.

    112When I signed the finance application dated 13 February 2004 (T111 pages 2389 to 2402), I never told anyone at Big Rock that I was Alan’s de facto partner, and I cannot imagine Alan saying that either.  I cannot remember whether I was living at Pawlett Way at this time but I may have been.  I was not in great health at the time.  I would not have said that I had lived at Pawlett Way for about 10 years because I hadn’t.  I gave my brother as a referee and cannot remember why I did that.  This was about the time Alan had surgery on his back so I was probably living there to assist him after the surgery.

    113When I signed the finance application dated 15 June 2006 (T111 pages 2412 to 2425), I never told anyone at Big Rock that I was in a de facto relationship.  By this time, Alan had purchased a property at Oakover Road and he was living there and I may have been living in Pawlett Way.  I just went to Big Rock Toyota, signed the completed paperwork and picked up the vehicles.

    114My main concern when I was collecting the vehicle was to make sure there was proper insurance in place.  I did not worry about the finance because I knew the vehicle loans would be paid off.  I arranged insurance through an insurance broker as this was cheaper than the insurance offered by Big Rock.

    115In relation to the Bankwest account, the account number … was the main account for Allwest.  I do not know why it was in the name of Diane [sic] Markland.  I previously raised the issue with Bankwest because of the use of the name ‘Markland’.  I have never given them an ID with ‘Markland’ on it.  My reward Plus account with Bankwest was in the name of ‘Melvin’ (T104 pages 2252 to 2339).  I went to Bankwest Midland and told them that the name ‘Markland’ was incorrect.  They said it was ‘human error’ did not want to fix the name until I threatened to close the account.  I raised this issue with them because I have always had my own account with Bankwest.

    116The Westpac One account was set up when Liz and I rented out Ellenbrook for Adam, and it was set up to pay his bills.  It was Adam’s account and Liz was a signatory to that account.

    117By 2006, I was living at Pawlett Way and I continued to go into the Allwest office to help out.

    118I cannot remember the exact date, but in about early 2007, I made a decision that once Allwest turned over a million dollars I did not want anything else to do with it.  Alan then decided he wanted to sell Allwest if I was not going to be involved in Allwest.

    119By early 2007 I became involved in the sale of Allwest.  Jane, who has been Allwest’s bookkeeper since 2000, and I were able to sell Allwest which saved Alan a significant amount of broker fees.  I was allowed to live a Pawlett Way rent-free in return for looking after the sale of Allwest.

    120I have seen a balance sheet for Allwest for the 2006/2007 year that indicated that I loaned Allwest money.  I do not know why there were accounts or entries that show up a loan from me to Allwest.  I never lent money to Allwest.  The amount was approximately $146,000.00 and I never made that money and I did not have that amount of money.  I would not been [sic] able to loan that amount to Allwest.

    121Ms Carol … (Carol) was Allwest’s accountant at the time this tax return was prepared but it had not been lodged when she left the practice.  When Paul Montani of Montani Bolland Chartered Accountant (Montani) took over Allwest’s work he had to lodge this tax return.  I previously dealt with Carol and when Carol left Allwest decided not to engage … services because they did not seem competent to me.  Allwest decided to engage Montani.

    122When I asked Paul Montani about the loan showing on the tax return and balance sheet, he said he did not know what the loan accounts or entries were for, and he asked me what they were about as they were showing as a loan from me.  This conversation would have been at the time the 2006/2007 financial accounts were done.

    123I told Paul words to the effect that ‘I did not know anything about it’; ‘I had no idea where this money came from or why it was recorded like that’; and ‘all I know is I never had that money, and when the company was sold it certainly never paid me any of the money’.

    IAFTER THE SALE OF ALLWEST IN MID-2007

    124Sometime after Alan sold Allwest in mid-2007, he bought a Mercedes Benz motor vehicle as a sign of gratitude because of the work I had done working for Allwest and for selling Allwest.  He saved a lot of money when he sold Allwest because he did not have to engage a broker.

    125Alan chose and paid for the motor vehicle.  I have always wanted a BMW and I have mentioned this to Alan when we were talking about the things I wanted in my life that I wish I could have.  He then said words to the effect, ‘Nah, you would want a Mercedes’.

    126This conversation did not really mean anything to me because it was a casual conversation.  One day, I got a call from my brother saying that he had bought his wife a BMW in British racing green which is also the colour I wanted.  I was really annoyed about this.  Alan then told me words to the effect ‘Don’t worry about it.  I’ll buy you a Mercedes’.  Again I did not take him seriously.

    127One day, Alan decided to look at an Audi motor vehicle, but he did not like the way the dealer treated him.  We then we [sic] went to a Mercedes dealership and we saw a car which I said was beautiful.  He said he would buy it for me, and I laughed because we were not having a serious conversation.

    128In August 2007, Alan said that he was going to buy the Mercedes Benz for me as his money had come through from the sale of the business.  He said look how much money you saved me on brokerage fees by selling the business.  I said that this gesture was lovely.

    129When we went to the car dealership, the document was already prepared and completed by them in the name Dianne Markland, and so I signed ‘Dianne Markland’.  I would have made a comment about the name ‘Dianne Markland’ but Alan said something like ‘It’s that or nothing’.  I didn’t say anything else as I was so excited about getting a new car.  I also knew from precious [sic] conversations that Alan did not want anything associated with him in the name ‘Melvin’ because he hated my ex-husband.  I cannot remember the date when I signed the document but I have been shown a copy of the contract to buy a motor vehicle which is dated 20 August 2007 (T149 page 4607).  Alan collected the car a few months later, around February 2008.  I cannot remember the exact date, but the motor vehicle licence and third party insurance policy and tax invoice were dated 6 February 2008 (T149 page 4608 to 4609).  I think this was about the time when Alan had his first knee operation and I stayed at Oakover Road to look after him after this operation.

    130Alan paid for the car and brought it home.  When he gave the car to me he then started imposing conditions on its use.  I asked him where the bolt was to attach the child seat and he said I was not allowed to put a child seat in the car.  Then he said I was not allowed to drive it to see my mother and I was not allowed to take passengers in the car.  Then he said I was not allowed to take it to shopping centres.  Because of these conditions, I did not want the car anymore.  I said to him words to the effect of ‘You’ve got to be joking.  Why did you buy it for me if I cannot take it to visit mum or Lizzie?  You can take your car and jam it.’  I have never paid any bills relating to the car.

    131If the car was mine I would prefer to sell the car and have the money.  I told Alan that I wanted to sell the car and he told me that if I sold it, I would have to move out from Oakover Road.  I think the value of the car now is $32,000.

    132.In the first week I had the car I drove it around the block and up the road and to my brother’s house to show him.  I drove it to Shannon’s house to show it to him.  I may have driven the car 4 times.  It now sits in the back shed and never gets used.  The last time I drove it would have been 3 or 4 years ago, when Alan had a knee reconstruction operation.

    133Around February 2010, Alan tried to give me a ring.  I did not know he had bought the ring until he gave it to me.  The purchase document shows that Alan bought the ring on 16 February 2010 (T154 – 4638) so he must have given it to me sometime after that.  Alan said to me ‘Here, I bought you something’.  He then threw the ring on the kitchen table.  He said to me ‘It’s not an engagement ring.  It’s just a diamond, and you deserve it.  I don’t suppose you want to marry me do you?’  I told him ‘Don’t be stupid’.  I am not in a relationship with Alan, and I do not want to marry him.  I am not interested in that kind of relationship.

    134As far as I remember this was not long after Alan had been really sick.  His GP said not to worry about it but I knew it was serious so I rang his specialist and pushed him to admit Alan to hospital.  Later the specialist told Alan that if I had not been so pushy and he had not gone to hospital when he did he could have died.  Alan had pneumonia and after he was discharged from hospital he had to buy a lot of breathing apparatus.  I do not know why he bought me the ring but because of the timing he may have wanted to thank me.

    135Alan spends his money the way he wants to spend it and does not discuss this with me.  I do not have any control or influence over him or his money.  I was not with Alan when he bought the ring.  I did not know how much the ring cost.  I did not see the certificate of purchase until after the search warrant was executed.  I do not wear the ring.  I had plenty of other nice jewellery.  I have a piece that was a present from my jeweller who thanked me for helping him when his father died.  I would not have bought the ring for myself because I do not like it.  The ring is kept in the safe.

    JMY IDENTIFICATION DOCUMENTS

    136In 2001, I wanted to travel overseas and Alan said that I could use the frequent flyer points (Points) that had accrued on the Allwest card [sic] supplementary credit card which was under the name Dianne Markland.  I called Qantas and they told me that in order to use the points the name on my passport would have to match the name on the frequent flyer account.

    137I then made enquiries with the passport office about changing my passport so I could use the Points.  The passport office told me that I could change my name and it would be free.  I just had to produce my birth certificate and divorce papers.  I was told that I would have to get the application signed by someone who had known me as Dianne Markland for 12 months.  The person at the post office was able to do this.  The post office in Balcatta was where I paid Allwest’s bills using the Allwest supplementary credit card.  My doctor also signed the document when I told him why I needed the paper signed because he did not see any problem with it.  Unfortunately, my doctor has passed away.  I never told the passport office or the person at the post office that I was married or in a de facto relationship.

    138In my passport application, I listed Liz as my next of kin.

    139In 2009 I renewed my passport in the name of Dianne Markland.  I did not try to change the passport back into the name Melvin as there were still Points in the name Markland.  I wanted to use the Points to travel to Colombia to see Adam & his family.  During this time, I thought we were going to lose my mother, and that was when I decided I was going to Colombia.  I wanted to see my son and his family and spend time with them.  I listed Liz again as my next of kin.  I remember telling Adam’s wife to work out how many Points I needed to get to Colombia.

    140When I renewed my driver’s licence in March 2007, this was under the name Melvin.

    141Around 1 April 2008 my wallet was stolen, including my driver’s licence.  When I tried to replace it, the only ID I had was my passport in the name Dianne Markland.  The police officer told me that I could not get my licence re-issued in the name Melvin because my passport was in the name Markland.

    142My mail only ever went to Matlock Street, Pawlett Way and Oakover Road.  I knew that my mail would be getting checked at these places.  Everywhere else I was only there temporarily.

    143I never put Matlock Street as my address with respect of any business transactions.  The reason for this is that I did not want anything coming back to me, my sons or my house if I decided not to continue working at Allwest.  That is why Pawlett Way might have come up for Allwest as my personal address.  I never had anything come to Matlock Street from Allwest, and I never had anything personal of mine go to Alan’s house.

    KSOCIAL RELATIONSHIP BETWEEN ME AND ALAN

    144Throughout the years, I acted as a personal assistant and a carer to Alan.  He could not do direct debit back then because there was no internet banking so he needed someone to pay his bills when he was away.  Now, he likes paying everything with a credit card so he gets the frequent flyer points.  If he is in Perth, he pays the bills, and when he is away, I pay them.  Alan always insists that whenever I receive his bill, I have to pay it as soon as it arrives.

    145I have always considered myself married to Paul Melvin.  We met when I was 17 and I married him when I was 19.  He had a drug habit and he died in Vietnam 6 years ago.  My sons paid for his body to be returned to Australia.  When I went to his funeral it still felt like I had been married to him all the years we were separated.  Even if he left me and my sons and he failed to support the boys, I still considered him to be my husband and no one could ever take his place.

    146My family, friends and long-time family doctor (who passed away) know that I am not and have never been in a de facto relationship with Alan or with anyone.  I have never referred to Alan or introduced him as my husband or partner.

    147None of my family members call Alan ‘father’ or ‘grandad’.  My niece, Kylie Gardiner, calls Alan only ‘Alan’, and she calls me Aunty Di.  My niece’s children called Alan ‘Uncle Alan’ as a sign of respect until they were 10 or 11.  Shannon does not call Alan’s father ‘grandad’.  Shannon calls him ‘Mr Markland’ as a sign of respect.  I have never heard Shannon or Adam call Alan ‘dad’.  They do not even ask about him or refer to him anymore or ask me about him.

    148I see myself as Alan’s carer.  I take Alan to most of his medical appointments.  I remember I took him to a pain specialist Dr Grazzioti in Subiaco for his medical appointment.  I knew this because I received a parking fine because I parked in a disabled parking area and forgot to bring my ACROD [sic] with me.  I wrote to the parking company to try to get out of paying the fine and said that I had my ACROD sticker but not in the car.  I also said that I was assisting my partner because I thought that if I told them that they might feel sorry for me and would tell me not to worry about the fine.  In the end, I still had to pay the fine, which I did.

    149Alan has never taken me to my medical appointments or visited me when I was in the hospital.  There was no reason for him to visit me, and I did not expect him to.  He is not aware of my health issues.  For example, in 2005, I was in hospital for about three weeks and Jane visited me most days.  Alan did not visit at all.

    150In 2010, my niece, Samantha Fotheringham, died and Alan did not provide me with any support, and I did not expect him to.

    151There have been many occasions over the years when I have had to take my mother to the hospital.  Alan has never come with me or helped me.  When my mother’s house in Balga was broken into and I got a call in the middle of the night, he did not come with me to see what had happened.  I went on my own.  He does not provide or offer any assistance to me or to my mother.  I never expected or wanted him to provide any emotional, physical or financial support.

    152Alan is not interested in my family because he is not part of my family.  He helps and supports his brother and three sisters.  When his brother’s son died a few years ago, he organised a funeral for his nephew’s family.  When his brother died in February 2009, he also organised a funeral for him.  When his father came to Perth, he stayed at Oakover Road for 2 to 3 months.  This was in February/March 2009.  He has stayed there a few times.  Alan’s sister’s husband had a heart attack and they stayed at Oakover Road in about 2012.  As mentioned above my mother has never been able to come and stay at Oakover Road.

    153I recognise that if Alan has a problem I try to assist him.  The reason I do this is because no one else would help him.  I would help anyone if they needed my help.  I would do [sic] offer the same assistance I have offered to Alan for a neighbour or friend.  I feel happy inside whenever I am able to help other people.  I help my other friends and neighbours when they need my help.

    154I realised that my previous identification documents were under the name of Diane [sic] Markland, and I did not see this as an issue because Diane [sic] Markland was easier to use for the business and for dealing with Alan’s properties.

    155I know that in the will of my brother, Michael Hatton (Michael), my name was written as Dianne Markland.  This happened when my brother was completing his will kit.  I cannot remember the exact date when Michael’s will was signed but according to the will, it was signed on 8 September 2010.  I told him that the only identification I had was under Markland.  Michael then asked whether the word ‘nee’ should be included.  I did not want to do that, but I said to my brother ‘Let’s leave it’.

    156At that time, I just wanted to make sure I would have authority to act if anything happened to my brother.  He never knew I used the name Markland and he was surprised when I told him about this.  He said words to the effect of ‘It’s not a very good idea’.

    157I have now changed my forms of identification back to Melvin, and I completed all the documents necessary to change them.

    158From the time I met Alan there was no prospect of me having children. I had a hysterectomy a month after I turned 26 years old (and when I was still married to Paul).  Alan wanted more out of the relationship when we first started seeing each other, but I did not want to have a serious relationship with him or with anyone.  Since we met up again and became business associates we have been friends.

    159I did not think about what other people thought about the social and business arrangements I have had with Alan because this was none of their business.  I recognise that there are financial links between me and Alan but they are similar to a business relationship.

    160In 1997, I know that Alan married a woman in Indonesia and had a child with her.  I do not know much else about that family in Indonesia, but this does not concern me.

    161Alan spends time with his family and friends and has his own family and social arrangements with them.  I do not attend his family and social gatherings.  I attend my own family and social gatherings, and Alan does not usually attend.

    162Alan goes back and forth to Indonesia all the time.  I do not know why and I do not ask him.  He has done this as long as I have known him.  There was a period when he was unable to travel because of his various health issues, but once he was well enough to travel again he has done so.

    163Alan and I do not discuss his travel movements.  Alan and I do not answer to each other.  In Christmas 2013, he brought his girlfriend, Hany, from Indonesia to Oakover Road and she stayed there for a few weeks.  A week or so before Alan’s girlfriend arrived, he asked me to get particular things when shopping for her.

    164It did not concern me when Alan’s girlfriend came to stay – of course it would if I was in a relationship with Alan which I am not.  I have known that he had a girlfriend for about 2 years as he asked me to help him to send money to her in Indonesia.  The first time I sent money to her was in April 2012.  I remember this date because it was about Easter time.

    165Alan and I do not discuss personal matters and I do not expect us to do that.  We would only discuss business, financial and practical matters like looking after the animals.  He did not tell me he had a girlfriend as a personal matter but because he needed practical assistance to send her money.

    166I remember the last time I told him I had to go to hospital, he said to me ‘Who are you going to get to mind the animals?’  He did not ask after my health.  Alan was going to be away during this time too so I asked my brother to help me out.  Alan did not ask what I was going into hospital for.  Until I started living at Oakover Road Alan and I never discussed each other’s plans.  After this time, we let each other know if one of us was going to be away from the house because the other person would need to look after the animals.

    167I have seen a letter dated 15 August 1991 addressed to Dianne Markland at Pawlett Way containing photos from Alan’s citizenship ceremony (137 [sic] pages 4496 to 4501).  The letter is from someone called Alicia Caparas.  I do not know who this person is.  I remember Alan getting citizenship then but do not know why I would have got something sent to that address from someone I do not know.  I do not recall being at the citizenship ceremony and I do not recall receiving that letter and I was not living at Pawlett Way at that time.

    168As far as I am aware, Alan has not referred to me as his wife or partner to other people or to other organisations.  I have not heard him say this when I am with him.

    LMY CURRENT FINANCIAL AND HEALTH CIRCUMSTANCES

    169I spend my own money on doctors, medical examinations such as x-rays and scans, medicine, birthday presents, my hairdresser appointments, my clothes, etc.  I would not borrow money from Alan to pay for these things and he would not give me money for these things.  After Centrelink suspended my payments my sons helped me by sending me money each month.  In July 2013, Adam sent me $10,000.00 to pay off my credit card debts.  From the time my payments were suspended I stopped taking all the medication I needed as I could not afford it.  Apart from allowing me to live in his house, Alan did not support me in any way.

    170Alan did not pay for any of my doctors, hospital and medical examination fees, medicine and my personal items.  Alan and I have always kept our finances separate and operated separate bank accounts.  The only joint financials we had was when there was a joint loan account when Oakover Road was purchased and when the Superannuation Fund was set up.

    171As stated above I have always had my own personal bank accounts to which Alan does not have any access.  I do not have any access to Alan’s accounts.

    172I did not know that my Centrelink payment was going to be cancelled.  I was never told about this.  The Centrelink payment just stopped.  I did not receive another letter again until 2012.

    173When my Centrelink payment was stopped, I enquired from Centrelink why my payments stopped.  They said they would get back to me in writing and they never did.  I did not know anything about a debt.  I rang Centrelink but I did not know the reference number or the amount of debt so I could not give it to them when I called.  They told me that I should wait and I will receive something in writing.

1. 174When my payments from Centrelink were suspended I had no income and my boys had to support me.  They sent me money.  Shannon and Adam gave me $500.00 each month.  When I got sick, my medication [sic] were  expensive and were about $300.00 to $400.00 a month, plus I had to pay my MRI fees and X-rays.

   175In 2012, I asked Adam to give me money to pay for my medical fees, and he gave me US$15,000.00 before he went back to Colombia.  Alan did not provide any financial support to me after my Centrelink payments were suspended and he knew that they were cancelled.  I told him my sons were transferring money into my account.

   176From the time my payments stopped until the date I finally got the letter telling me I had a debt I was continuously checking the mailbox every day wondering what was going to happen to me.  I had to live like that for 18 months not knowing what was going to happen.

   177When I got this letter I rang up Centrelink and said I did not agree with the decision and I also said I could only pay $500 per month.  The woman on the phone said that I had to pay $1,000.00, and I said I could not do it because I could not afford to pay that much at that time.  So I started paying $500.00 per month starting on my birthday which was on … August 2012.  The Centrelink officer told me that I could do that until I went to court and then Centrelink could reassess.  I paid $500.00 per month for 13 months.

   178On 18 October 2012 I tore two tendons in my back and had to have surgery.  I have always been advised that my injuries are likely to mean I end up in a wheelchair.

   179I have seen a card from Alan with the words ‘For my wife’ on it.  This was at a time when I was going through a lot of stress in my life in Christmas 2009.  Adam, Claudia and Ashley had gone back to Colombia for Christmas; I was sick; my mother was sick; and my niece was sick and she passed away.   Alan must have felt sorry for me.  The card was his own way of showing moral support to me, but it certainly did not mean in the context it was [sic].  While the front of the card was about a wife, the verse in the middle was what it was all about.  There were no other cards in the house.  The AFP did not find any other cards in the house because they did not exist.  I have never given Alan any cards that say ‘to my husband’.

   180In October 2012, I had surgery on my hip and I had to walk with crutches.  I have to attend specialist appointments.  My knee needed to be replaced but I could not have that done until my hip issue was resolved.  In relation to my stenosis and cyst, I have to wait and see what happens.

   181In February 2013, I had my knee surgery.  That has caused neuropathy and has increased the tetraplegia.  I have on-going appointments with my pain specialists.

   182My mother has been in and out of hospital, and on 12 June 2014, my mother had a heart attack and was hospitalised again.

   183On 24 June 2014, I was hospitalised due to deterioration in my condition.  I spend [sic] 6 days in hospital having tests and observations and consulting with various specialists.

   184I have never defrauded Centrelink.  I have never misrepresented my status to them.

   185I have always been on a disability pension and have suffered from serous medical conditions.  I am still severely affected by these medical conditions on a daily basis.  I am continually stressed, anxious and worried about my pending Centrelink matter especially when it took them a long time before they could give me an answer regarding what they are claiming that I owe Centrelink.

   186My serious medical conditions and the added stress from my Centrelink matter is affecting my health significantly.”  (Exhibit R1)

2. In the course of a lengthy cross-examination Ms Melvin gave evidence to the following effect:

   ·when she first met Mr Markland in 1987 they “hit it off really, really well and it was good” but “it didn’t work out; it wasn’t going to work out” (Transcript, p 22);

   ·after she and Mr Markland met up again at a Christmas party in 1989 and she commenced to become involved in the running of his business, Allwest, he gave her his power of attorney in 1990 and that power of attorney is “still going today”;

   ·from about 1993 she took a leading role in running Allwest, including “hiring and firing” staff;

   ·largely because of her role in running Allwest, it started to make money to the extent that it achieved a turnover of over one million dollars in the 2006–2007 financial year;

   ·she did not receive wages or bonuses for her work in Allwest but she did receive superannuation, the use of a company car and an “open fuel card” and:

   “ … if I had to go to a meeting or something, it was okay to take the money out of petty cash to go to Myers and buy a nice outfit to wear to the meeting, which in turn I might wear to a wedding the following week” (Transcript, p 32);

   ·in the period 1993–1999 she “looked after” Mr Markland’s house in Pawlett Way, Karrinyup while he was overseas – she had the keys to that property and Mr Markland was happy for her to stay there when it suited her;

   ·on each occasion when Mr Markland returned to Perth from overseas she would meet him at his house in Pawlett Way and inform him of what she had been doing in the Allwest business.

3. Ms Melvin then gave the following evidence:

   “ MS PRICE:  Ms Melvin, I think we left at where you had the use of Pawlett Way when you wanted to.  Did you ever stay there with Mr Markland when he was back in Australia during that period from 1993 through to 1999, before he got seriously ill?--- A couple of times I went over there and had a swim and had a drink and obviously stayed the night, not with him but at his house, yes, when he was home.

   But you didn’t live with him in the house during that period?--- No, no, no.  I – there was times when Alan was back in Australia living in – in his house in Karrinyup when I had stayed at his house, because I’d already set up a room.  Upstairs I had an antique bed and whatnot, but I’d already set that up for myself for any time that I was over there because I didn’t go into his bedroom.  Obviously that was, you know, that was nowhere to go.  But there were times that I’d gone over there and, you know, we might’ve been discussing Allwest or whatever and just having a few drinks and just – and I’d stay the night.  We’d have a swim in the pool, or if it was winter time and it was bucketing down with rain, I’d say, you know, ‘Is it okay if I stay the night because I’ll go home tomorrow’, whatever, and he’d say, ‘Yes, fine.’  It was that sort of arrangement.  It was just no different than going to a girlfriend’s place saying, you know, ‘I’m going to stay the night because it’s too hot, too cold, too nice, I’m not going home.’

   But he was happy for you to set up a bedroom for yourself in that house? --- That – well, where else was I going to sleep?”  (Transcript, p 35)

4. Ms Melvin confirmed that she and Mr Markland had been on camping trips together in his caravan “a couple of times … a few times …”, including a trip to Kununurra where she had “family” (Transcript, p 47).

5. Ms Melvin’s evidence in cross-examination also included the following exchange:

   “ [MS PRICE:]  I’m getting the impression that at some point during that period, say from 1990 to 2004, that you reach this agreement whereby you had this mutual – it was mutually convenient to both of you to have – to live in the same property when either of you wanted and it was convenient to you to have this companionship and it provided that stability, the home stability when you needed it?--- I’ll agree with everything you said except for the companionship.  It did work and does work for Alan and I to live under the same roof in a property.  It does work because it is all his.  He is responsible for the debts.  He is responsible for every single thing.  It’s his house.  It is his, not mine.  I can pack my suitcase and go.  Of course it works perfectly for him because when he comes back to Australia he can have that whole house to himself if he so wishes.  All he’s got to do is say to me, ‘Dianne, I don’t want you in this house for two or three weeks’, or whatever, ‘You’d better go and stay somewhere.’  Or – - –

   Has he ever done that to you?---Many times.  Many times.

   What, when he’s a girlfriend there or something?  Why would he do that?---He’s just let me know before he’s got back from the rig or whatever that, ‘Look, you know, I need to be on my own, I don’t want you in the house’, ‘No problem.’  That’s fine.

   And when that happens where do you go?  Do you stay with your sister or someone?---I don’t know, it depends on who I was – it would depend.

   Is that in your witness statement that he asked you to not be in the house when he comes back from an overseas trip?  I just don’t remember seeing it?---No, I didn’t say – what I meant like since this started there’s many times – many times he’s told me that I should pack up and get out of his house and stop causing all these problems with this stuff with Centrelink too.  Then he’ll say, ‘Look, okay’, you know, ‘You’ve been good to me’, you know, blah, blah, blah.  But there’s many times that he’ll just say to me he just needs to, you know – am I going to be there at the house?  He doesn’t actually say, ‘Get out of the house’ as such, just, ‘Look, I would really like to be on my own when I get back’, or ‘I’d really like the house on my own’, for whatever reasons, it’s his house, as Karrinyup was his house.  It wasn’t every time that he asked me to go over there and stay at the house.  There are times when he didn’t.  When he had his brother looking after his property he didn’t ask me to go over.

   What period was that?---Mid '90s, or early – I don’t know.  In the '90s somewhere, and not at Karrinyup, I think it was another property that he had.”  (Transcript, pp 48–49)

6. The following extracts from a record of interview between an AFP officer, a Centrelink officer and Ms Melvin on 11 November 2010 were put to Ms Melvin:

   “Question 286        Alright well we’ll move on from, from those details.  Ah the nature of people’s commitment to each other including the length of the relationship.

   Answer 286We’ve been friends for an awfully long time, more so than what if we’d been married.  My marriage never lasted as long as this friendship.

   Question 287        So that’s how you basically describe your relationship, a friendship.  Would that be correct?

   Answer 287He’s just a good man.  He’s just a good man.  He’s a good man who, if I needed anything I could ask him for it.  He’s a good man if, you know, he doesn’t tell me what to do, he doesn't ask me where I’m going or what time I’ll be home or anything like that.  If I just went home right now and just grabbed some clothes and said I'm going to stay at mum’s if anyone calls ring me, he’d say yeah, you alright, I’d say yeah, fine.

   Question 288        So how, how do you think Allan [sic] regards his relationship with you?

   Answer 288Oh he probably loves me dearly.

   Question 289        And we said earlier that, or you said earlier that earlier this year he’d asked you to marry you [sic]?

   Answer 289Yeah.  And I said no again.

   Question 290        And why did you say no?

   Answer 290‘Cos I have a lot of personal issues.  I’m not well.  I’m not leaving my, I’m not going to live, marry somebody that has to look after me when I can’t look after myself anymore.  When the day comes and I can’t look after myself anymore I will gladly put myself into wherever I need to go.  The responsibility of somebody looking after me now is bad enough, that I burn myself, that I trip and I fall over, that I pass out for no reason.  That I’m allergic to bees, and if a bee stings me I could be you know, stings me on the neck or whatever, that I probably had a heart attack a few years ago and went down and spent hours and hours at Swan Districts.  I don’t want to leave that to somebody who, anybody.  I’ll never marry anybody.  I will never live with anybody.

   Question 291        Alright, so the companionship and emotional support, you provide each other that?

   Answer 291I think so, I think so.

   Question 292        Ah, and you said ah, earlier that he will care for you If you’re sick and you’ll care for him.

   Answer 292Oh absolutely yeah and I do and he’s had back operations where you know, he wasn't um, when I was at Karrinyup, living at Karrinyup, I mean he was on the floor for three months, you know.  I was bring [sic] him his meals and whatever.  I’d take him to doctor’s appointments, doing all that.  When it’s my turn he takes me to the doctor’s appointments.  When I was in hospital he never came and seen me every day, but he rang.”  (T 121, pp 3124–3126)

   Ms Melvin confirmed that her “Answer 287” continued to represent her views regarding Mr Markland.  As regards her “Answer 288” Ms Melvin gave the following evidence:

   “ And you do believe that he actually is in love with you?---I didn’t say he was in love with me, I said he loves me dearly.  There’s a difference between being in love and loving someone dearly, okay?  He – he respects me and he loves the fact that I’ve looked after his businesses, his interests, everything, and he’s never had to part with any of his money for it.  It’s been protected, I’ve protected him from – from losing his businesses.  He trusts me absolutely with his bank accounts, all the rest of it.  That’s why he loves me, not loves me, loves me, as in, in love with me.”  (Transcript, p 50)

   As regards her answers to Questions 291 and 292 Ms Melvin gave the following evidence:

   “ Okay.  And then – if I could take you over to page 3126 – sorry, if you could start on page 3125 and question 291, they ask you about providing companionship and emotional support?---M’mm.

   And you say, ‘I think so, I think so’, and then they ask you whether he will care for you if you’re sick and you’ll care for him, and you say, ‘Absolutely, yeah.’  So would you agree with what you appear to be saying there, that you do provide each other with companionship and emotional support, and you will both care for each other when – - -?---Yes, I know, but if you – I’m sorry, I’ve misunderstood that question because it says, will he look after me if I get sick, right?  Where did it say that, that he will care for you if you’re sick.  Question 292, will Alan care for me and I will care for him, right?  Is that what the question means, yes?  Because if you read the answer it says, ‘Absolutely, yes’, and I do – and I do look after him, and I’m talking about what I do absolutely, absolutely.  He was on the floor for three months, I was cooking him meals, whatever, I took him to the doctors, doing all that.  When it’s my turn he takes me to the doctors’ appointments.  Wrong.  When I was in hospital he never came and seen me, ever, every day; never ever came.  He doesn’t take me to doctors’ appointments.  I don’t know how they even got in there.  Alan has never taken me to a doctor’s appointment in my life.”  (Transcript, p 51)

7. Later in her cross-examination Ms Melvin was referred to her “Answer 282” in the abovementioned record of interview in which she stated that she and Mr Markland “haven’t had sexual relations for … I can’t remember how many years”  (T121, p 3123), and to the following questions and answers:

   “ Question 283      You said on Tuesday that sometimes you sleep in the same bed.

   Answer 283        Yeah.

   Question 284      Mm.

   Answer 284I get shocking, I get bad nightmares.  I get really bad nightmares. I take tablets for them.  Sometimes they work sometimes they don’t.  Um, if I’ve been looking after my niece, which I look after her on a Monday, the one that’s got the cancer, it kills me when I’ve got to drive home leaving her sitting there.  And um, yeah I might just you know, have a few beers and he’; [sic] say I’ll go and watch TV in the bedroom or whatever, that’s fine.”  (T121, pp 3123–3124)

   She gave the following evidence:

   “ Can you go to answer 282?---M’mm.

   And you’re talking about sexual relations and not having any.  And then you say sometimes – they asked you that, ‘You said on Tuesday that sometimes you sleep in the same bed’ and you answer yes.  And then you explain that in answer 284 by saying, ‘I get shocking bad nightmares’?---Yes, I do.

   ‘I take tablets for them.  Sometimes they work, sometimes they don’t?---Yes.

   And then you go on to talk about having a few beers and watching TV in the bedroom”?---Yes.

   Can I say that sometimes you and Alan do sleep together for comfort, not in a sexual way but just as comfort when you’re having bad nightmares or bad nights?  Is that fair?---Yes.  Yes, and I guess if my brother was there I would have gone and hopped in his bed.  At that time, at that particular time I was losing my niece.  She had ovarian cancer.  She was just not quite 40 years old.  Apart from the fact that I have nightmares anyway, and I’ve always had them, it was just impossible.  I would – we were nursing Sam at home, taking turns.  I would come home from looking after her for the day and would break my heart.  And – - –  

   I don’t want you to start upsetting yourself?---No, no, no.  No, I’m not going to either.

   That’s not what this is about?---I’m not going to either.  And yes, so I’d have a few beers and – and I’d say to Alan, ‘Just talk to me about anything.  Talk to me about – I don’t care, you know, talk to me about the bills or anything to take my mind off just where I’ve been’.

   Yes?---And not every time, not every time – I was there three days a week.  I certainly didn’t sleep with him in his bed three days a week, it was just the – - –  

   No, I’m not suggesting that?---odd time when – yes, I just I needed to stop thinking about things and I would just say, ‘Look, talk to me about anything.  You know, what bills have you got, or what do you need done?’ or that sort of thing, and with a few beers, and then yes.

   Okay?---I’ve not done that since I lost my niece though.”  (Transcript, pp 83-84)

8. Ms Melvin was referred to questions and answers in the abovementioned record of interview regarding her and Mr Markland’s living arrangements in the Oakover Road property.  Those questions and answers were as follows:

   “ Question 171      Okay.  The living arrangements in the house, in your house …

   Answer 171        Ah mm.

   Question 172      Can you describe them to me?

   Answer 172I told you, when you first got there, his bedrooms [sic] is the front bedroom, my bedroom is the middle bedroom, the rear bathroom is my bathroom, all my stuff is in there.  I sleep in the middle bedroom.  Most of my clothes are in the front bedroom in my dressing table.  That is my dressing table that is in that room, as you can see, it doesn’t fit with any of the furniture.  It was just a crappy furniture, a bedroom.  Um, all his clothes, ‘cos he had already moved in to Oakover before I did.  All his clothes were already hanging up in all through every wardrobe that you people would have checked out, you would have seen except for that small part, which you saw Jo, which is only proportionate compared to the bedrooms and the, the wardrobes in the house, that maybe what, two and a half metres, is my clothes that hang up there.

   Question 173      And that’s in, which room is that in?

   Answer 173That is in Allan’s [sic] bedroom.

   Question 174      You also had a, some other clothes in there?

   Answer 174I had personal things in, in his bedroom yes, I do.  That was mainly just because they were just it’s more convenient to have them there.  I don’t have tablets or anything like that because Ashley comes and stays with me and sleeps with me in that bedroom, as she did last night.  And ah, um, you don’t have medicines and you don’t have personal things that a little tot can get up to and destroy.  My brother’s photo stays in that bedroom, it’s always been on that dressing table.  I don’t have, that’s the only photo that I, or apart from the one that you saw in the study, which is pinned to, if you look behind the computer, that whole notice board was full of babies.  There was except for the photo of myself and Allan [sic] with the Mercedes, which Mercedes took that, that was fine, I didn’t think there was anything wrong with that.  I didn’t think that I had to let Centrelink know that I had been given a car.  I, I, I didn’t honestly think so.  I mean I didn’t buy it, it wasn’t my money. [sic]”  (T121, pp 3106–3107)

   Ms Melvin gave the following evidence:

   “ And bedroom 1 which is Alan’s bedroom, do you store anything personal in that room?---Definitely.  My medication is in his room.

   Right?---He’s got locked doors, and because when Ashleigh [sic] was three at the time, I had a bottle of Chanel No 5 which I’d had for probably 30 years until she picked it up and decided that she wanted to play with nanny’s perfume.  So yes, a lot of things I put in his room, up on a dresser, so they can’t touch them, whatever.  Medications especially.  Things like tweezers, whatever.  You know, they’re put in there.

   Yes?---He’s hardly ever there anyway, so it doesn’t make any difference.

   Yes?---He’s got a television in his room.

   Yes, I was just going to get to that, do you spend time in there sometimes with him to watch television?---Quite often.  It – I’ll be going – you know, I’ll walk past and he’ll say, ‘Come and have a look at this’ because he’s got Foxtel in his room as well.

   Yes?---So he’ll say, “Come and have a look at this” or whatever, and yes, I’ll just sit on the edge.  I mean, he’s not in bed.

   Yes?---He might be laying on the bed or sitting on the bed and just sit there and watch a bit of Foxtel or whatever, or watch – - –  

   Okay?---I love my football and you can get my football show on Fox live.

   Right?---So any opportunity that I can go in there to watch my football team I would take it.

   Can I just ask you to go to page 3,106 of that book.  You might want to keep your hand in the diagram page as well?---Yes.

   And if you can have a look at answer 172 there.  This is again the AFP interview and they’re talking about your living arrangements in the house, and you said, ‘His bedroom is the front bedroom’ and then you go on to say, ‘I sleep in the middle bedroom.  Most of my clothes are in the front bedroom in my dressing table’?---Everything makes sense there.

   Do you have a dressing table in Alan’s bedroom?---At that time he had a dressing table with – which I showed the Federal Police and Centrelink because they didn’t even know it.  You moved the mirrors and all the medications were hidden behind it.  Do you understand?  Like an old ’30s type dressing table.  The mirrors were – and then you opened it and there was all shelves in there and you could just put the mirrors back and no one even knew what it was.

   Right?---The drawers were like that and like that.  So there was a few items in there, yes.

   Yes, okay.  Because you do say further down at answer 174 that ‘I had personal things in his bedroom’.  And then you go on over the page to talk about the tablets and – - -?---Yes.

   - – - Ashleigh [sic] staying.  And then I’m a little confused about ‘My brother’s photo stays in that bedroom.  It’s always been on that dressing table’?---Okay.  I’ve got one – the original photo that the police force put in after my brother passed.  They put that in – a photo of him in the paper in his full uniform.  Right?  And I am terrified something will happen to it.  Now, nobody goes into Alan’s bedroom except myself to either clean or make the bed, or whatever.  The safest place for that photo, apart from being in the safe, is in his room.

   Right?---So yes, I like to go and take it out sometimes and look at it, and whatever, and I put it back.

   Okay?---And it’s there even now, and I will put it back and it will stay there because I know that it’s – it’s going to be there.  The Federal Police found a postcard that he had sent me that I lost.

   This is your brother?---Yes, and when they found that postcard for me I just burst into tears, and I don’t cry very easy.  And that – luckily, that had been put in – either Alan had taken it to look after it for me or it was put in with his personal things, whatever.  That is still in Alan’s room with the other postcard that I have.

   Okay?---I travel so much I pick up my gear and I’m gone somewhere else, somewhere else, but I always know where they are.

   So that front bedroom, apart from cleaning and tidying up, and storing your serious medications and very personal items there, you would watch television with Alan in there?---Sometimes.”  (Transcript, pp 81–83)

1. In re-examination Ms Melvin gave evidence to the following effect:

   ·in the period 1995–2001 she was not living in the Pawlett Way property – she was instead living in the Matlock Street property;

   ·in the period 2001–2004 she was not “permanently living” in the Pawlett Way property – her “permanent address was always Matlock Street”  (Transcript, p 101).

   Asked why she did not “ask for a significant wage or demand some significant remuneration” for her work for Allwest, Ms Melvin’s evidence was as follows:

   “ Because it really was never about the money.  I had never worked eight hours a day five days a week.  A lot of it was done in my head.  A lot of it was done at my home.  It was strategic marketing.  I don't know how to use a computer.  I don't know how to type.  My office skills were zip.  I didn't know anything.  I just knew how to answer a telephone and use a pencil and paper.  My ability was in hiring the right people to do the job correctly and the money, the wages, the books, which I did most of the time at home.

   So, what did you get out of it?---Absolute sheer satisfaction.  Look, I always wanted to do something with my life.  I just didn't want to have an accident and then just get stuck in a corner.  I knew I could never get proper employment.  Nobody was going to employ me.  Even looking at the people that I employ, by the time WorkSafe went through who you were going to employ, nobody would have employed me.  I was too much of a high risk and I knew as someone that was hiring people, I could never hire anybody with a small disability, let alone someone with what I had.  The risk factor of the cost of you hiring someone and falling down and tripping in the office, workers' comp would have gone through the roof.  You have to remember back in those days you didn't have this politically correct where the Government now sponsors you to hire people with disabilities.  That wasn't around then.  So, I got sheer satisfaction out of it.  It gave me something to do.”  (Transcript, pp 101–102)

   The Evidence of Mr Markland

2. Mr Markland (who was born in May 1946) gave evidence by telephone from Indonesia.  He confirmed that he had signed a statement, dated 15 July 2014, for the purpose of this proceeding and that its contents are “true and correct to the best of [his] knowledge”.  Mr Markland’s statement is as follows:

   “1     I first met Dianne Melvin (Dianne) in 1987.  We met through mutual friends.  There was a large group of friends who were connected through having worked on oil rigs and who drank at the Balga Inn.  We dated for about 6 – 12 months although I was overseas a lot of the time.  Dianne did not want a permanent relationship and so we went our separate ways.  I had other girlfriends and moved on with my life.  Since this time Dianne and I have not had a sexual relationship.

   2When I met Dianne she was living at … Matlock Street Mount Hawthorn with her sons Adam and Shannon.  I never lived at Matlock Street.  I was always impressed at the way Dianne raised the boys.  She had to put up with a lot of grief from her ex-husband who would turn up or phone out of the blue.  She was trying to make sure the boys had a good life.

   3We met up again at a Christmas party in about 1989.  I was still working overseas.  We stayed in touch and in 1990 I told her about the problems I was having with a business I was involved in, Allwest Environmental and Pest Management Pty Ltd (‘Allwest’).

   4I had a one third share in the business and the other two partners were a father and son.  Because I was away most of the time I was sure they were not acting in my best interests and I wanted someone I trusted to keep any eye on things for me.  I didn’t want to pay someone to do this.  I just wanted someone who was prepared to drop in from time to time as needed.  Dianne agreed to do this.

   5On 29 May 1990 I appointed Dianne as my power of attorney when I got legal advice to do this.  Eventually I bought out the other partners.  I didn’t think the business would be successful as I did not have time to take care of everything.  I was working 2 weeks on 2 weeks off but did not always return to Perth on my weeks off.

   6In August 1991 I made a will leaving everything to Dianne.  I had advice that I should make a will and I thought that Dianne needed help.  She was willing to help me out with the business and my family were all well enough off.  I didn’t discuss it with Dianne.  I thought that she would be the only one who would tidy up my affairs when I died and my family didn’t deserve anything.

   7In April 1992 Dianne became a director in my company Allwest.  I hired a manager to run the business but I still wanted Dianne to keep an eye on things.

   8Our relationship was one of good friends and she looked after all my business affairs.

   9So that Dianne could pay the bills for Allwest I gave her a credit card for this purpose.  It was a supplementary card for an account that was in my name and I was fully responsible for the card.  I wanted all accounts to be easy to follow and having them in my name I could see every month what was bought and what amounts the business was paying for.  I could have cancelled the credit card at any time if I thought it was being misused or if Dianne didn’t want to help me anymore.  She knew I checked the card each month.  I cannot remember why this card ended up in the name Dianne Markland rather than Dianne Melvin.  It was a Citibank card and as far as I remember I dealt with them over the phone.  I would have asked for a card for ‘Dianne’ but I don’t think I said Dianne Markland.  When I saw it was in that name it didn’t bother me at all so long as she could use it for the purpose it was meant for.

   10In exchange for helping me out in the business she had the use of a company car, and her petrol was supplied.  Allwest also paid a superannuation contribution for her.  She did not receive any wages or other income from the business.  She was happy with this arrangement as she was not able to commit to working a certain number of hours a week.  If I needed something done I knew if I asked her she would do it for me.

   11In 2001 Dianne rang me and told me she wanted to use the many frequent flyer points that had accrued on the Allwest credit card to have a holiday in Singapore.  The points like the supplementary card were in the name Markland.  I think I was in Indonesia at the time and Dianne contacted me and asked whether I minded her changing her passport to Markland so she could use the frequent flyer points.  I said ‘no problem’ as I was happy for her to use the points.

   12I spent nearly 12 years working in Indonesia.  Many months I did not return to Perth.  I was ‘the boss’ in Indonesia and even when I had time off in Australia I was still on call 24 hours a day.  It was my only focus for about 14 years.  It was a high pressure job and there were many political issues to be dealt with.  This was the period from around 1985 to 1999.

   13In 1993 I got married to a woman in Indonesia.  During this period I rarely came back to Perth.  I lived with my wife and sometimes travelled to Singapore when I had time off or to extend my visa.  I cannot recall how long this relationship was for but it was for some years.

   14When I married I converted to Islam.  This is not something I discussed with Dianne as we did not have that kind of friendship.

   15I don’t even think I ever discussed the fact I was married with Dianne but that was not something I would have thought of discussing.  My Indonesian wife and I had a daughter who was born in 1997.  My relationship with my Indonesian wife ended around this time.  I still see my daughter sometimes when I am in Indonesia.  I sometimes see my former wife when I am in Indonesia.

   16My ex-wife is very well connected and is financially very well off.  She has never asked me for financial assistance.  I did not get advice about changing my will as I did not think there was any reason to.  As I said before when I made my will Dianne was bring [sic] up 2 boys on her own and since then she had continued to help me out when I asked her.  My wife and daughter were better off than me.

   17Dianne paid all my accounts for me when I was away and when I purchased a gas heater for my house at Pawlett Street [sic] Karrinyup I asked Dianne to get the gas connected for me.  I can’t recall when this was but have seen a document that says the Alinta account was established in August 1995 and this would be about right.  As far as I know this was the first time Dianne used the name Dianne Markland; she has since told me it was easier for her to use that name as the account was to come to Pawlett Way which I owned.  I have always paid this account.  All the bills that Dianne paid for me were paid with my money.

   18Dianne occasionally stayed at my house in Karrinyup when I was overseas – if there was a problem with something like the alarm system I’d ask her to be there when the repair person came to fix it.  She was also willing to keep an eye on the pool and this was very convenient for me as previously I had paid a pool service to do this and they weren’t reliable.  Dianne had a key and she was welcome to come and go when I was away.  She kept an eye on things and in return could use the pool if it was hot.

   19Although Dianne has used the name Markland for some purposes I have not heard her refer to herself as Dianne Markland and I have never introduced her in this way.

   20I can’t recall when I bought the property at … Main Street Osborne Park.  I bought this property to store equipment for Allwest as it had a big area at the back where I built a big shed.  Dianne’s mother had no money and I suggested she could live there.  I can’t recall when this was but she had sold her house.  It was empty at the time and I had no interest in using the house myself. Having that property was better for me than a storage unit but the house was empty much of the time I owned it.  The arrangement was that she pay for any utilities she connected.  She stayed there for a few years I think.

   21In 1999 I had a bad accident and hurt my back so much that it was the end of my working career.  I had been a heavy duty machinery mechanic in the offshore oil industry for many years and had wear and tear as well as previous falls that I didn’t report.  I battled on.  My condition got much worse after this fall.  I was in terrible pain and needed someone to come and stay at my house to look after me.  I had a two storey house and I needed help to maintain the house and pool.  Dianne agreed to move in to assist me during the period of my back surgeries. – the first of these was in late 2001.  She then moved between Pawlett Way and her place in Matlock Street.  She also went to stay at my house in Main Street for a while during this period.

   22Following my surgery in late 2001 I stayed in a room on the ground floor and this was set up so that I didn’t have to go upstairs.  I had 2 televisions downstairs and used the downstairs bathroom.  I had any clothes I needed downstairs.  Dianne had a bedroom upstairs.  There were 3 bedrooms upstairs one with an ensuite and she could use whichever one she wanted.  I don’t know which one she used as I did not go up there.  I couldn’t drive for a few months and so she drove me to appointments and looked after the house/pool.  She continued to keep any eye on things at Allwest.  I had 3 lots of surgery between 2001 and 2004.  I was in a lot of pain all the time and could not do much for myself apart from my personal care.  Dianne cooked for me.

   23Dianne didn’t stay at Pawlett Way the whole time between 2001 and 2004.  She came and went as required.  I cannot recall the dates she came and went.  It is a long time ago.

   24I have never paid much attention to paperwork.  During the time I had Allwest I bought vehicles from Big Rock Toyota.  I chose the cars and Dianne had authority to collect them.  I don’t know why the contracts were filled in the way they were.  I probably spent $1 million on cars for Allwest.  The dealer did the paperwork.  I wrote a cheque.  They were all work vehicles.

   25In February 2005 I wanted to purchase a property in Middle Swan.  Dianne was in hospital and had been for a few weeks when I found the property I eventually purchased at … Oakover Road.  I was driving around the area and stopped to talk to the owner of … Oakover Road and asked if he knew of any properties for sale.  He said I could buy his place.

   26I put an offer in which the owners accepted and I had only 1 month to obtain finance.  There was no real estate agent involved in the sale but I had a settlement agent.  From what I remember I did not get finance approved at first.  I can’t recall now who did the finance but I remember that the vendor initially wanted a quick sale as they had found another property to purchase but then when the time came to settle they wanted to pull out.  The broker advised me that it would be quicker to get a ‘lowdoc’ loan and to put down that Dianne and I were both drawing a wage.  I asked Dianne if she minded doing this and she said no.  It was my intention that once I sold my business or one of my properties (which I expected to happen in a few months) I would pay out the mortgage and the house would be transferred into my name.  I also told Dianne that if anything happened to me she would get the place.  I paid for this property and have always considered it to be mine.  As far as I know this was also Dianne’s understanding.  I never had to discuss this with her as she knew.

   27I have never assisted Dianne financially even during the years she helped in the business.  I offered to help her out but she always refused.  She has stayed in my properties from time to time rent free but in return she provided care and assistance to me after my operations and also looks after my house and animals when I am away.

   28I moved into Oakover Road in June of 2005 or thereabouts when settlement occurred.  I bought alpacas, sheep and chickens.

   29Dianne continued to live at Pawlett Way Karrinyup and then in about 2007 she moved into her son Adam’s house in Ellenbrook.  She lived there for a few months then rang me and told me that Adam had lots of bills and that she and her sister Liz were going to rent his house out.  Dianne had not been very well at this time but I don’t know what was wrong with her as she didn’t tell me.  I asked Dianne to come and stay at Oakover for a while which she did.  I remember it was around Easter of 2007.  I suggested she come and stay so she could help me out and look after the animals.

   30She stayed for a while then moved out again.  She moved back in in early 2008 I think although I don’t have a good memory for dates.  Even though Dianne moved to Oakover Road in 2008 there have been lots of occasions when she hasn’t stayed there either because she has stayed with her mother or sister or at a friend’s place.  She comes and goes as she pleases but lets me know what she is doing so someone is there to look after the animals.  This is the most important thing for me – to have someone living at the house who I trust to look after my animals when I am away.

   31In about 2006 or 2007 I decided to sell Allwest.  Dianne and my bookkeeper Jane Russie put it up for sale – I’d retired then.  They did all the running around to make sure the sale went through – there was lots of book work.  If I’d paid someone to do it it would have cost me a lot.  They did all the preliminary work and then I made the final decision.  I received all the proceeds of sale of the business when it finally sold as it was my business.

   32Dianne and I have a superannuation account that is in joint names.  When I sold the business I thought it made sense to join both our superannuation accounts together into a self-managed fund.  Dianne agreed as she did not have that much superannuation.

   33My accountant who had been the accountant for Allwest set it up for us.  He told me I had until a certain date to put money into superannuation.  I decided to sell assets to put the proceeds into the fund.  I recall I could put in certain amounts by certain dates but I now can’t recall what the amounts or dates were.  I planned to use the funds to trade in the share market and this is what I have done.  Sometimes my stockbroker does the transactions and some I do myself.  I am the only one who can make decisions about the fund and Dianne trusted me to do this as she knows my only interest is to maximise my investment – most of the money is mine.  We each know how much we put in and our intention is that we have the same share in the fund that we had at the start.  I remember the accountant telling me what I could put into the fund in a particular year and we can keep track of who has put what in.

   34I made Dianne my beneficiary as I had no one else to leave it to and she was the only person helping me.  My accountant does the tax returns for the superannuation fund.

   35In August 2008 [sic] I bought Dianne a Mercedes car as a thank you for all the work she had done in looking after the business and especially organising the sale of the business.  Because she and our bookkeeper Jane did this I did not have to use a broker and so she saved me thousands of dollars by doing it herself. I chose the car and I didn’t discuss it with Dianne before I made the purchase.  She later told me that she did not want the car.  She said I should sell it and that now she felt she owed me something.  Since then the Mercedes has sat in the garage and occasionally I drive it.  It is over 5 years old and has done 6000 kms.  Because I am quite stubborn I would not let her sell the car.

   36In about February 2010 I bought Dianne a diamond ring.  We never got engaged.  I chose and paid for it.  She doesn’t wear it and as far as I’m concerned I should be able to give her a gift if I want to.

   37My current situation is the same as ever.  Dianne and I share a house.  I pay none of her bills, lend her no money and in exchange for me providing her with accommodation she maintains the house, makes sure the bills are paid with my credit card (she still has the supplementary one for this purpose).  It makes things easier for me to see what has been paid.

   38When Centrelink cancelled Dianne’s pension she told me her sons were sending her $500.00 each per fortnight and that is how she lived.  I was so angry when the Australian Federal Police and Centrelink raided my property and took away my documents that I threatened to kick Dianne out and as the review has dragged on there have been other times when I wanted to do this.  But I know how much Dianne has helped me in the past and it is very useful for me to have her there when I am away so I haven’t asked her to leave again.

   39I have never given Dianne money or Christmas or birthday presents.  I have been shown the card that Centrelink took (Fol 4507).  I cannot remember buying it.  Dianne has always paid her own way.  We are two friends who are there for each other.  We rely on each other for practical assistance.  I rely on her to look after the house when I am away.  I trust her as I have known her for a long time and she has always been trustworthy.  If I had to find someone else to look after the house I wouldn’t know if I could trust them.

   40In the past few years I have continued to have lots of health issues.  I have ongoing trouble with my left knee.  I previously had this knee replaced.  On 3 September 2012 I had my right knee replaced.  This means I can’t drive for long periods at a time and particularly in 2012 I was having trouble walking.  At times I have had to take lots of pain killers.  I had to have an operation on my right eye in May 2014.

   41I have been married three times but am not married now.  The first time I married I was 18 and then I married again in the late 70s.  My last marriage was in 1993 (as explained above).  I have had girlfriends since then.  Over the years I think I have saved lots of money by not being in a relationship.

   42I currently have a girlfriend who I have known for about 2 years.  She lives in Indonesia.  I have a house in Jakarta that I rented in July 2013 (with an option to buy) and I also have a car up there.   My girlfriend lives in my house.  She came to Perth for Christmas 2013 and stayed with me at Oakover Road.  I paid for everything.  Dianne knew about my girlfriend as I previously asked her to help me by sending money to her.  She was happy to help.  Unfortunately she found Perth very hot and does not want to move here permanently.  I brought her to meet my family.  Dianne obviously knows about her and met her at Christmas time.  I try to get up to Jakarta as often as I can as I am setting up a business up there.  I have not thought about changing my will as I still expect Dianne to tidy up everything if something happens to me and I have asked her as the executor of the estate to look after my girlfriend.  I said something like ‘if I drop dead look after my girlfriend if you are alive.’  She agreed to do this.

   43I also have a very close friend in Indonesia who I am assisting.  I worked with him for 15 years and have known him since 1981.  He is more like a brother to me than my actual brother.  I like to spend time with him but I have also helped him out financially.  I have helped him find high paid jobs in the past and whenever he needs anything I help him out.

   44At Oakover Road Dianne and I live separately.  I have my bedroom and she has hers.  My room as an en suite and Dianne has the use of the bathroom at the back of the house.  I have a large lounge room with a big television that only I use.  We have a long-term friendship.  I completely trusted her with any financial matters.  I have my own family but they couldn’t be trusted to help me out.

   45We each do our own thing and the only time I discuss my plans with her is if I need help or to make sure that she is around to look after the animals when I am going away.  If she is not able to do this she tells me and I ask my brother-in-law who lives in the area to come and do the mowing.

   46If Dianne moves out I will have to get someone else to move in.  Dianne has said that she thinks about going to live with Adam and his family and I expect that she might do this in the future although at the moment she also has to look after her mother.

   47I have known Dianne’s sons Adam and Shannon for quite a few years and I remember taking them fishing a few times when they were young.  I had no involvement in the renovations they did at Matlock Street.  I have never thought of them as my sons and they don’t treat me like a father.

   48Dianne would do anything for anybody.  She’s that kind of person and has that kind of relationship with many people.  I never introduced her to anyone as my wife.  She’s a good friend and that’s how I would introduce her.  I don’t go to social things with her.  If she attends a funeral she would go with her sister or a friend.  It wouldn’t occur to me to go with her.

   49I am planning to go to China as soon as I can after my eye operation and then to Indonesia.  I am back and forwards to Indonesia all the time now and I am going back as soon as I can get on a flight.”  (Exhibit R3)

1. In cross-examination Mr Markland gave evidence to the following effect:

   ·he gave Ms Melvin his power of attorney, on the advice of a solicitor, in May 1990;

   ·it is a wide-ranging power of attorney covering, inter alia, his real estate and banking affairs;

   ·he gave her that power of attorney because he “trusts her fully” and he has never withdrawn it;

   ·he made a will in 1991 in which he made Ms Melvin his sole beneficiary, and that continues to be his testamentary intention;

   ·Ms Melvin is to receive the amount of his account balance in their superannuation fund in the event of his death;

   ·the Mercedes Benz motor vehicle which he bought for her is hers to sell ‘if she wants to”.

2. As regards the purchase of a diamond ring (see para 36 of Mr Markland’s above statement), Mr Markland gave the following evidence:

   “ And do you recall that you gave Ms Melvin a diamond ring?---No, it wasn't meant for her.  It was meant for somebody else but I gave it to her because I wasn't going to throw it away, yes.  I gave it to her, yes.

   When you say you bought it for someone else, Mr Markland, who did you buy it for?---No, I'm not prepared to say that.  (Indistinct), yes.  I don't want to put their name – sorry, the phone dropped off, no?

   No, I'm still here.  So, the goods were purchased on the 16 February 2010?---2010.  Yes, that's right.  Yes, yes.

   And the certificate of purchase says that it was purchased by Mrs Dianne Markland.  So, that suggested it was actually purchased for her, doesn't it?---Yes, yes.

   Did you offer this ring to her with a proposal of marriage?---Never, no.  No.

   And do you know, is the ring in your possession or in Dianne's possession now?---Mine.

   It's in your possession, is it?  What, with you, in Indonesia?---Well, she can have it if she wants it.  It's locked in my safe at home.  It sits there.  For safekeeping, you know, if she wants it she can decide whatever she wants to do with it, yes.

   So, you consider it as a gift to her now?---M'mm.

   Can I just put this to you?  I'm going to read something out to you, Mr Markland.  It's what Dianne says about what happened with the ring.---Yes.

   And you can tell me whether you agree with it or not.  It's at page [sic] 133 of Mr [sic] Melvin's witness statement.  What she says, Mr Markland, is she said, Alan said to me ‘Here I bought you something.  He then threw the ring on the kitchen table.  He said to me it's not an engagement ring.  It's just a diamond and you deserve it.  I don't suppose you want to marry me, do you?  I told him don't be stupid.  I'm not in a relationship with Alan and I do not want to marry him.  I'm not interested in that kind of relationship’.  Is that correct?  Is that what happened, Mr Markland?---It may be something like that – yes, it may be something like that, yes.  I never asked her to marry me, no, just wouldn't.  You know, I never asked her to marry me as – like a proposal, no.  No, I never did.  No.

   Did you attempt in earlier years to ask Ms Melvin to marry you?---Did I? No.  No, I can remember – unless I was drunk or something.  I don't know, no.  Not as far as I can remember, never asked anyone to marry me.  I don't know.  A couple of times I've been married, a couple of times before, but a long time ago but, no, I don't remember that, no.  I would have given it to her, yes.”  (Transcript, pp 125–126)

   As regards the diamond ring, Mr Markland added that “if [Ms Melvin] wants to sell it, she can sell it, yes.”  (Transcript, p 126)

3. Mr Markland confirmed that he suffered a serious back injury in 1999 and that he was thereafter living in his Pawlett Way property.  His evidence continued:

   “ And during that period you were living at your house in Paulett [sic] Way, Karrinyup?   ---Well, I was either there or in hospital having injections in my back.  After the operation I was having pain injections after that and (indistinct) on the ground floor because I couldn't get up the stairs.

   Yes?---And I lived down there and – you know, I just sit there and watch TV and did all my exercises and done what they told me to do, you know.  Yes.  Were you able to do much for yourself at all?  Did you have people – - -?---Well, I had to get up and make a cup of tea and have a shower.  That was about it.  You know, I couldn't do any work outside or anything like that.

   Yes?---Nothing like that.  I mean what do you mean like I clothed myself and everything, yes, of course.

   No, you've answered the question.  And so the rest of the things that needed to be done at your home and for you, did Ms Melvin help you with those?---Yes, if I wanted some shopping and something like that Dianne would go out.  If she wasn't there and then she'd come back and bring me something or I might have her there.  Sometimes she stayed upstairs if I was in a real bad way or anything in case she had to ring an ambulance.  I was in a lot of pain and they just kick you out of hospital.  They don't care if you're in pain and they give you pills.

   Yes?---Yes.  Falling over or something like that, I mean at least I could have yelled out to Di and, you know, she could have called an ambulance for me, you know.

   Yes.  So, the period that she was helping you with going through this time of bad health and surgery, was that the period from 2000 to 2004?---Yes, about that.  Something like that, yes. 

   Do you remember what month in 1999 you had your accident?---I can't honestly.

   Okay?---I don't think that's on the records.  Unless I went through my records and wrote it down here on this bit of paper I'm looking at that would be true but I can't remember just straight out of my head, no.

   And in your witness statement at paragraph 21 you talk about having a bad accident in 1999 and then you had the first of the back surgeries in late 2001?---Yes.

   Now, in the period in the year 2000 into late 2001 did Dianne come and stay with you at the house in Paulett [sic] Way sometimes?---Sometimes, yes.  Sometimes because I was very – in a bad way, you know.  Yes.  She just sometime put things together or something or whatever or make sure things okay.  Make sure I was okay and stay overnight sometimes upstairs.  You know just put her on a makeup bed on the floor on the ground floor, yes.

   And once you started the surgery in late 2001, and I think you said – - -?---I had two or three back operations so, you know, I wasn't very good in-between the first and last, you know what I mean.  They were all – and I'm still not good now.  Yes.

   Yes.  I think you say in your statement you had three lots of surgery between 2001 and 2004?---Yes.

   How often was Dianne with you at Paulett [sic] Way during those years, late 2001 to 2004?---I'm sorry I can't remember.  I can't remember how many times she was there or whatever.  I can't remember.

   Okay?---She just come and go and anything I needed she's just bring it round the house for me and sometimes she would stay or come the next day to fix the pool or mow the lawns or something like that she'd stay there and (indistinct) and you know, blah, blah, blah.  Instead of (indistinct) and things like that.

   Yes?---But she had a bed upstairs and everything so that was okay, you know.

   Can I just ask you to focus on the year 2004?  This is just before you went and bought the property at Oakover Road.  So, can you remember – - -?---Oakover Road?

   …   Can you remember the period before you started looking for Oakover, the period before, in late 2004 and what I want to ask you about that period was Dianne living with you at Paulett [sic] Way, Karrinyup in that period?---No, not full time, no.  Sometimes she stayed there and I think that's about all.  2004, no.

   Was she staying with you because her property in Matlock Street was rented?---No.

   You don't remember that?---No.  Maybe for some of the time.  I can't remember.  I honestly can't remember, I'm sorry.  I can't remember.

   And during this time you started thinking about moving from Paulett [sic] Way Karrinyup to somewhere else; is that correct?---Yes.  I did, yes.  I wanted a bit more room and I wanted to get away from a two storey house.

   Right.  And I presume that was because your back problems didn't allow you to live in – - -?---Yes.

   And did you discuss this move with Dianne?---No.”  (Transcript, pp 129–131)

4. As regards the transfer of the Oakover Road property in 2005, Mr Markland gave the following evidence:

   “ MS PRICE:  And the parties have signed that transfer on the 12 July 2005, Mr Markland, and you've signed it in your usual way?---Yes.

   And Dianne has signed in the name, D Markland?---Yes.  Yes, she may have to make it easy to get a loan or something, maybe.  Maybe that was the reason, I don't know.

   Yes?---That's the only reason.  It's my house.  I bought it.  It's my money.  I already paid it and that's it, yes.

   And the transferee on the transfer of land is described as Alan Markland and Dianne Lillian Markland as joint tenants?---Is it?

   I don't know.  You'll have to take my word for it?---Who would have put that on there?  Who would have written that on there?

   Well, it was possibly, and I would suggest it probably definitely, was Bankwest or Bank of Western Australia?---I don't know.  Maybe yes. 

   Because the loan accounts, which again I'm at the moment just assuming it's the right loan, but the loan accounts are in the name of Mr and Mrs A Markland?---I remember at the time to get a quick loan, as I wanted a Low Doc loan or something like that, and they just wanted – you know, they said it would be better if there was two signatures on it, Dianne and maybe yours maybe.  I think it's something like that.  Something to that effect, I think it was, yes, and I think Dianne might have signed it like that, in that way, in that respect to get the loan quick.  That's all.  That's about the only thing anything can be done for.

   …

   Do you remember anyone asking you how you wanted ownership of the title to be registered?---No, I can't remember.  No.

   You don't remember anyone asking you whether you wanted it as tenants in common or joint tenants?---No, no idea.  No, it was my house.  That was it, you know.  I bought it and I paid for it and it's mine.

   …

   So from your perspective am I right in saying it doesn't worry you that her name is on the title as a joint tenant with you?---It doesn't worry me, no.  No, when I drop dead soon (indistinct) I mean it's hers anyway so she can have it, you know.  I don't care.  I trust her fully.  It's only a house, my house, if I want to sell it I'll sell it but I'm not going anywhere from there, that's it, I don't move any more.  No.

   Can I ask you then: is Oakover Road you consider your home in Australia?---Yes. 

   Do you consider Ms Melvin to be part of your home in Australia for as long as she wants to be there?---As long as she wants to be there.  If she doesn't want to be there I'll have to find somebody else to look after my affairs, and because it's a five acre property and (indistinct) to be doing there (indistinct) I'll have to get somebody to stay there and replace her with somebody else to do the same job.  But if she'd help me find somebody else that would be – yes, somebody trustworthy and honest, yes, and she can go whenever she wants to or stay as long as she wants to as long as she keeps to herself; and she keeps to herself anyway.  So, you know, it's just – yes.

   Do you see Ms Melvin as providing you with more than someone to look after your animals?---And she looks after my bank account, pays my bills, things like that, and that's all. 

   You don't consider – - -?---So if I needed to do something – just say something comes in or this needs some, that needs to be done, she'll phone me and say how long – what about this needs doing and, you know, the roof's blown off or something or whatever and she's there to handle my affairs for me so that is the way it is and has always been like that.  And, yes, that's why she's there.  If she doesn't want to be there she can go any time she wants to.  You know what I mean?  That's it in a nutshell, you know?

   Are you seriously saying that this relationship between you is as cold as that?  Is that what you're saying?  That she is simply there to look after your affairs for you?---That's it, yes.

   Even though you were prepared to ask her to marry you?  We went through that earlier this morning?---I didn't ask her to marry me unless I was drunk one night.  That's a possibility.  But I can't remember that, no.  I was never again; never, never, never.  I never asked her to marry me, no.  No.  It's not a cold relationship; it's just a friendly relationship.  She's a friend and that's it, and I trust her wholly and with my house and whatever, you know.  And, you know, it's very hard and I don't want my family involved in doing things for me because I don't get on with them too well so it works out very good, it works out very good for me.”  (Transcript, pp 135–136, 137, 140–141)

5. Mr Markland was referred to the extracts from Ms Melvin’s record of interview set out in paragraph 30 above.  His evidence was as follows:

   “ MS PRICE:   It's volume 5 page 3124.  Mr Markland, I'm just going to read out this passage to you and see whether you agree with it.  This passage comes from some evidence that Dianne gave when the Australian Federal Police interviewed her, okay?---All right, yes.

   She is asked about her relationship with you, okay?---All right.

   She says about that relationship, ‘We've been friends for an awfully long time, more so than if we'd been married.  My marriage never lasted as long as this friendship.’  Then she goes on to say about you, ‘He's just a good man.  He's a good man who if I needed anything I could ask him for it.  He doesn't tell me what to do.  He doesn't ask me where I am going or what time I'll be home or anything like that.  If I just went home right now and grabbed some clothes and said I'm going to stay at mum's he'd say yes, all right, fine.’  Would you agree with that?  That you are a good man as far as Dianne is concerned, and that if she needed anything she could ask you for it?---Yes, I suppose so, yes, yes.  Yes, I'd help her out, of course I would.  She's helped me out for a lot of years, yes, since we began.

   Then I'm going over to page 3125, Senior Member (sic).  Then they ask how you regard your relationship with Dianne, okay, and Dianne says, ‘He probably loves me dearly.’  And the question is put to her, ‘He asked you to marry you (sic) earlier this year and you said no again.’  Do you agree with that, that you love her dearly and you did ask her to marry you again in 2010?---I can't remember that.  I can't remember asking her. I do not think I asked her to marry me, no.  I can't remember that.  But I do love her as a friend.

   I'm sorry, I didn't hear that last part?---I do love her as a friend.

   Okay?---She's like family to me; she's like family to me – as a friend – and she's always been a good friend to me. 

   When she was asked why did she say ‘no to your marriage proposal’ she said, ‘I have a lot of personal issues, I'm not well.  I'm not going to live – marry someone that has to look after me when I can't look after myself any more.’  Have you discussed that with her at any time?---No, no.

   Is that the first time you've heard that?---No.  Yes, I don't know.  I mean I don't think she would get married to anybody, no, I don't think because she's not well and, yes.  I don't know.  I don't know, I just know her as a good friend, that's all.  Yes, that's all and not any more. 

   Another question is put to her about you providing companionship and emotional support to each other, and she – - -?---Yes, well if she's in pain I'd look after her a bit, you know, or whatever she needs doing I'll go and help her out a bit, you know.  Or if I'm in pain she'll help me out a bit, you know.  I mean, we've both got some bad injuries, serious injuries and that, and blah, blah, blah and she had a broken neck and everything and she still suffers with a lot of pain and whatever.  We do support each other, yes, we do, yes. 

   Can I just ask you to focus on the house layout at Oakover?---Right.

   You have a large bedroom don't you?---Yes, at the front of the house, yes I do, yes. 

   You also have an area of the house that's just for you, Mr Markland?---Yes, I've just renovated it and put another big room on to the – so I've got a TV in it and all that, that's all mine and it's not – and my room is mine; and Dianne's got a bit of room that's – yes, it's her own room and she's got a nice room, too, yes.

   You do sometimes share time together watching television, is that correct?---Probably, yes.  Sometimes, yes, if we're watching the football or something, yes. 

   You mention there were times when you would look after each other.  Was there a period of time when Ms Melvin was having bad nightmares?  Her niece was very, very unwell; she was dying with cancer.  Do you remember that period?---Yes.  Yes, I remember it very well; a very bad period in her life, yes.  Yes.

   Would you comfort her when she was having bad nightmares?---Yes, I did.  I did, yes.  I did, yes.  Yes.

   On those occasions would you perhaps sleep together?  And I'm not talking about any sexual relationship here, I'm just talking about sleeping together for comfort?---She might have come and laid on top of the bed maybe once or twice.  That's about all, especially when her niece died and her mother was ill in bed a couple of times and she'd nearly lost her mother a few times and, yes, yes.  Yes, a couple of times like that, yes; and when my brother died I stated earlier she supported me and no more.  Not in any other way than friendship, you know.” (Transcript, pp 144–146)

   The Evidence of Adam Melvin

6. Adam Melvin gave evidence by telephone from Colombia.  He confirmed that he had signed a statement, dated 3 July 2014, for the purpose of this proceeding and that the contents of that statement are “true and correct to the best of [his] knowledge”.  Adam Melvin’s statement is as follows:

   “ 1     I am Dianne Melvin’s older son and I was born on … November 1972.

   2I can’t recall exactly when we moved into … Matlock Street Mount Hawthorn (‘Matlock Street’) but I think it was when I was about 15 or 16 years old.

   3I can’t remember when I met Alan Markland (‘Alan’) but I think he and my mother were in a relationship ‘on and off’ sometime in the late 1980s.  At around this time Mum and Shannon and I were living at Matlock Street Mount Hawthorn and Mum was helping out her friends who had a party hire business.  Alan did not live with us and I cannot recall him being around that much.  I did not have any kind of a relationship with Alan at that time.

   4Mum had a serious accident when Shannon and I were young; I was about 7 years old.  At this time Mum lost touch with some of her former friends but she was devoted to Shannon and me and stayed close to her real friends.  Even though she had been badly injured and my father had left, she was still willing to help anyone who needed help.  I recall we had a few foster children stay with us before we moved to Matlock Street and also had one or two of my friends come and stay when I was finishing school and Shannon was doing his apprenticeship.  Mum was willing to help them out until they got on their feet.

   5When Shannon and I were growing up Mum was always involved in our activities.  She supported us in sporting activities and she was never just a parent coming along to watch, she always got completely involved in the club or helping out however she could within her physical limitations.  This was especially the case with the football club and cricket club.  I was involved in taekwondo, tennis and golf and Mum supported me to do those activities.

   6When I was 14 or 15 I started seeing my father Paul Melvin again and I got to know him better.  I could tell that Mum still held strong feelings towards him by seeing the way she reacted around him.  As I got to know my father better particularly as I got older I decided he had a lot of charisma but also a lot of bad habits.  Every time I was present when Mum and Dad would meet I would see her face light up and she was clearly happy to see him but then she would look distressed as she would realise he was supporting an insatiable drug habit.  The meeting usually ended with my father trying to borrow money.

   7I cannot remember dates when Mum started helping Alan out at Allwest Environmental and Pest Management Pty Ltd (Allwest) but I remember she told me she was helping him out by attending meetings and keeping an eye on his partners as he worked offshore and couldn’t do it himself . Mum told me she enjoyed keeping her mind occupied and she had a good head for business.  During the years Mum helped out at Allwest she told me that she kept an eye on everything.  She said that there was a general manager but she also kept an eye on him.  She told me that Alan was involved in the machinery and equipment side of the business and she made sure the people were doing what they were supposed to be doing.  I can’t recall dates of each of these conversations.

   8It has always been my understanding that the relationship between Alan and my mother has been one of mutual friendship.  This understanding is based on what I have been told by my mother and also what I have seen.  They shared some common interests mainly their involvement in Allwest and this is what kept their friendship together.  My view is based on what each of them have talked to me about over the years.

   9I went to live with my father in about 2002.  Dad had bought a house in Iluka and we were both working offshore.  We weren’t always home at the same time but when I was home I would work on the house for him and when he was home he would do the same.  I think we worked on the house for about 2 years.

   10In about 2003 I bought land at Ellenbrook and built a house.  Once my house was finished I moved in.  I think this was in early 2004.  I lived in it for about a year but during this time I was working and travelling overseas.  I met my now-wife in Singapore in 2006.  My job was month on and month off and sometimes I stayed overseas during the month off and sometimes I came back to Perth.  From about 2005 I spent lots of my time travelling overseas and working overseas.  During these years I was not back in Perth that often and so did not see much of Mum.

   11I remember Mum went to stay in my house in Ellenbrook in late 2006.  I recall she called me to talk about this.  I was overseas living in Hong Kong and I was about to break the news to her that my now-wife and I were expecting a baby and were planning to relocate to Colombia.  At the time I needed someone I could trust to maintain the property.  My mother maintained the property and resided there.

   12During that time she also supervised major renovations that were carried out at Mount Hawthorn.  I was very focussed on my own plans and did not really talk to her about why she wanted to move in.  After she moved in she realised that I was in debt.  She sent me scanned copies of the mail showing overdue bills.  After a few months she contacted me and suggested that I rent the house out so that I would have an income to pay the bills associated with the house.  I agreed and she and her sister Elizabeth arranged that for me.  As far as I know my aunt made all the arrangements after that.

   13In 2007 my mother decided to come for a holiday to Singapore to meet my then fiancée (now-wife) Claudia and our baby Ashley (her granddaughter).  Alan came with her.  Mum did not like to fly and was anxious about flying on her own.  Alan had friends in Singapore and he would often head off on his own when they were there.  I had accommodation for them both as I had a 3 bedroom apartment in Singapore.  They had separate rooms.  I paid for their time up in Singapore with me.  At the time I was working there at the time [sic] for a jet drilling company.  Mum spent her time with Claudia and me and our daughter Ashley.  Alan said he met with friends and associates and was looking at the possibility of setting up a survey company but I was never present at these meetings.

   14The Ellenbrook house was rented out from sometime in 2007.  My daughter Ashley was born in Colombia on … May 2007.  After about 6 months we moved to Singapore and then about 6 months later (in about May 2008) we moved back to Perth.

   15When Claudia, Ashley and I first moved back to Perth we stayed with my brother Shannon for some months while we looked for a house to buy.  I also fixed up the Ellenbrook house which I then sold in 2009.  We then bought a house at … Kallaroo and lived there until 2012 when we decided to move back to live in Colombia.

   Matlock Street

   16I cannot remember when Mum was first offered the chance to purchase the Matlock Street house.  I recall I had a conversation with Mum sometime afterwards when she told me that it had been offered to her and I remember her telling me the asking price and I thought it was a good price and she should have taken it up.  We were living at Matlock Street at the time but I cannot now remember the date this happened or the asking price at the time.

   17When Mum went ahead with the purchase in October 2000 I was not really involved until after it was purchased.  We didn’t sit down and draw up an agreement but I saw it as our family home and Mum, Shannon and I were to contribute.  As far as I know Alan was not involved at all in any discussions about purchasing the house and did not contribute to the purchase of the house.  Shannon and I were supposed to make regular payments to the mortgage account but I was financially unstable and unreliable at the time and would often miss making regular payments.  I would then make large payments to catch up when I could.  As explained above during these years I was very focussed on my own life and what was happening to me and was away from Perth for weeks at a time so did not pay much attention to other matters.  It is difficult for me to remember now what happened when.

   18I always considered Matlock Street to be Mum’s house and I saw my contributions to the house as helping her out.   During the time we owned it we did a major renovation.  Between Shannon and I, we pumped countless hours into working on the house as well as financial contributions.  Both Shannon and I were working offshore when the bulk of the work was done and when we came home we would be working 12 hour days at Matlock Street.  I recall that Mum was living there when we were doing the work but no one was living there just before we transferred the property to the trust.  I can’t recall dates when Mum was and wasn’t at Mount Hawthorn but her furniture and personal effects were always at Mount Hawthorn even if she stayed at Pawlett Way Karrinyup sometimes.

   19The Matlock Street house was transferred to Shannon’s family trust in early 2009.  Shannon and I were both working offshore but still being required to pay a large proportion of our income in tax.  Shannon got advice about setting up a trust and told me that he thought it was the best way to proceed.  I agreed as I trust my mother and brother completely but I did not take part in any other discussions about it and I did not have a role in setting up the trust or any role in the sale of the property.

   20I confirm that as far as I know Alan had no involvement in any of the discussions about Matlock Street at any time and he did not assist us at all in the renovations.

   Use of the name Dianne Markland

   21I became aware that Mum had used the name Dianne Markland at some time when she was helping out at Allwest.  I think that I went into the bank with her – she was doing something for Allwest – and they called her Dianne Markland.  I remember asking her why they called her that and she said that she had used the name as a convenience when dealing with Allwest matters.  I said something like ‘you shouldn’t be doing that as it is not your name’.  I do not know how often she used the name but I never heard her call herself Dianne Markland in a social situation.

   Oakover Road

   22I can’t recall when Alan bought the property at Oakover Road and I do not know when Mum moved there but I recall that she was living there when my family and I returned to Perth in mid-2008.  I know that they have separate rooms there – Alan has the master bedroom and en suite and Mum’s bedroom and bathroom was at the back of the house.

   23I did not know the property was in both their names and both Mum and Alan have always referred to it as Alan’s house.  From what I have seen Alan is always very possessive of everything he owns and he makes all the decisions about Oakover Road.  I know he has bought lots of machines which he has there.  He has 3 bobcats and 2 ride on mowers.  I have never heard Mum talk about any plans for the house.

   24Claudia and I were married in April 2010.  As my father was dead and Claudia had no one to ‘give her away’ I decided to ask Alan.  My relationship with him had improved by then.  I did not make this decision based on him being a friend of Mum’s but because I could not ask anyone else (for example one of my uncles) without seeming to favour someone over another person and making someone else jealous.  I thought Alan would be a good candidate as it would leave the people I was closer to on equal ground.  I did not think about Mum or Shannon but I recall that when I told Shannon about it he did not agree with my decision.

   25Alan gave Claudia and I a wedding present which was a gift just from him (not a joint gift from him and Mum).  Alan was not at my buck’s party.  Apart from this gift Alan has never given me gifts such as birthday gifts and I have never given him gifts.

   26I have not heard Mum discuss plans for the future.  She has had so much illness and stress but tries to keep it from Shannon and me.  Most of the time if I ask her what the doctor has said to her, she won’t tell me.  I have talked to her about coming to live with my wife Claudia and daughter and I and she has said that she would like to but cannot leave Perth at the moment as she is looking after her mother.  She has never mentioned Alan as a reason she cannot leave.

   27Since my wife and I returned to live in Colombia in 2012 I have not been back to visit Perth.  I have made plans to visit but then have been prevented from doing so for different reasons.

   28In the past few years my relationship with Alan has improved.  When I was younger I did not really have a relationship with him at all.  He has never been involved, mentored or nurtured my brother or me throughout the time I have known him. He has never lived at the same address as us, and on the odd occasion when we have met members of his family at parties or celebrations I have not been treated as a ‘family member’.  At these events my mother was treated as a friend of Alan’s and never as a family member.  An example that shows that Alan has never behaved like a father figure to me is that he would never lend me anything.  If I needed a particular tool when I was working on the Mount Hawthorn property and Alan had one he would either sell it to me or I would get it from somewhere else.  I needed to borrow a ute to use for about a year and I knew that Alan had some left when Allwest was sold.  I asked if I could borrow one and he refused.  He sold it to me instead.

   29About 18 months ago Alan told me that he was starting up a new business in Indonesia and China.  This is the type of conversation we have – never a conversation about Mum.

   30I have never heard Mum refer to Alan as her husband or partner and have never heard Alan refer to Mum as his wife or partner.”  (Exhibit R2)

1. There is some evidence before the Tribunal regarding the payment of day-to-day household expenses in this period when Ms Melvin and Mr Markland were sharing accommodation at Pawlett Way.  Ms Melvin’s evidence (see paragraph 78 above) was to the effect that she paid the household accounts using Mr Markland’s credit card.  The Tribunal also notes Ms Melvin’s evidence (see paragraph 84 above) that she did the weekly shopping and it infers that she also paid for that using Mr Markland’s credit card.

2. As regards the “nature of the household” when Ms Melvin and Mr Markland were residing together at Pawlett Way in this period, Ms Melvin’s and Mr Markland’s evidence (see paragraph 82 above) was to the effect that Ms Melvin slept in a bedroom and used a bathroom upstairs whereas Mr Markland used the living room downstairs as a bedroom and used the downstairs bathroom, although Mr Markland also appeared to imply that Ms Melvin sometimes slept in a “makeup bed” on the ground floor.  Although there is no specific evidence regarding their use of common living areas, the Tribunal infers that they ate meals and watched television together.  Their evidence regarding housework (see paragraph 84 above) was to the effect that Ms Melvin did the housework, the weekly shopping and the cooking at Pawlett Way in this period.

3. There is in evidence before the Tribunal contemporaneous documentary material whereby Ms Melvin and/or Mr Markland, in this period, each represented to organisations that they were then in a spousal or de facto relationship with each other – see the first four dot points in paragraph 86 above – and evidence that they travelled to Singapore and returned to Australia together in September 2001 – see the first dot point in paragraph 90 above.  There is, however, evidence before the Tribunal as to the assessment of Ms Melvin’s children, siblings and close friends regarding the nature of the relationship between Ms Melvin and Mr Markland in this period – each of those persons regarded that relationship as not being in the nature of a marriage-like or de facto relationship (see paragraph 88 above).  The Tribunal notes, on the other hand, the invitation addressed to “Alan & Dianne” from Brian Markland (Mr Markland’s brother) to attend “the 50^th Birthday celebrations” of Alley Markland (Mr Markland’s sister-in-law) on 22 January 2005 (see the first dot point in paragraph 89 above).

4. There is no evidence before the Tribunal to the effect that there was a sexual relationship between Ms Melvin and Mr Markland in this period.  Ms Melvin’s and Mr Markland’s evidence was that they have not been in a sexual relationship since 1988.

5. The relationship between Ms Melvin and Mr Markland has been ongoing since about 1989.  Although (as previously mentioned) the Tribunal is not satisfied that, up until 5 December 1999, Ms Melvin and Mr Markland had made or demonstrated the kind of commitment to each other that would be consistent with their relationship being in the nature of a “marriage-like” or de facto relationship rather than in the nature of a close friendship and business relationship, the Tribunal is satisfied, on the basis of the evidence before it, that they had made or demonstrated that kind of commitment to each other from 6 December 1999 when Ms Melvin commenced to reside with Mr Markland at Pawlett Way on a regular substantial basis in order to care for and provide emotional support to him following his severe back injury and the cessation of his offshore employment and attend to the housekeeping and the management of the household accounts and expenses.  Notwithstanding Ms Melvin’s repeated assertions to the contrary in her oral evidence, the Tribunal is satisfied that she and Mr Markland did provide companionship to each other, and that Mr Markland did provide emotional support to her, in this period.  The Tribunal is also satisfied that Ms Melvin and Mr Markland considered that their relationship was likely to continue indefinitely, albeit that they may not have seen their relationship as “marriage-like”.

6. Having regard to the considerations referred to in paragraphs 119–125 above in respect of the matters set out in paras (a)–(e) of s 4(3) of the SS Act, the Tribunal has formed the opinion that those considerations, on balance, point to the existence of a “marriage-like relationship”, within the meaning of s 4(2)(b)(iii) of the SS Act (as in force at the relevant time), between Ms Melvin and Mr Markland throughout the period from 6 December 1999 to 12 July 2005 for the following reasons.

7. In the Tribunal’s opinion, the only relevant factor which weighs against the existence of a “marriage-like relationship” between Ms Melvin and Mr Markland in this period is the absence of a sexual relationship between them.  The Tribunal notes, however, that the absence of a sexual relationship between them might, at least partially, be explained by the significant debilitating physical conditions from which they were suffering in this period and does not, in the Tribunal’s opinion, necessarily indicate a lack of emotional commitment by them towards each other.

8. In the Tribunal’s opinion, the financial aspects of the relationship between Mr Melvin and Mr Markland which are indicative of the existence of a “marriage-like relationship” between them in this period are the pre-existing and continuing nomination, in Mr Markland’s Will, of Ms Melvin as the sole beneficiary of his estate, the nomination by Mr Markland, on 31 March 2003, of Ms Melvin as the sole beneficiary of his “Plan B Employer Sponsored Superannuation”, and the provision by Mr Markland of accommodation at Pawlett Way to Ms Melvin and the payment by him of their day-to-day household expenses at Pawlett Way.

9. In the Tribunal’s opinion, the “nature of the household” at Pawlett Way (as summarised in paragraph 122 above) does not, on balance, clearly weigh in favour of, or against, the existence of a “marriage-like relationship” between Ms Melvin and Mr Markland in this period.

10. In the Tribunal’s opinion, the social aspects of the relationship between Ms Melvin and Mr Markland, on balance, weigh in favour of the existence of a “marriage-like relationship between them in this period.  The fact that Ms Melvin and/or Mr Markland each represented to organisations, on various occasions, that they were in a spousal or de facto relationship with each other (see paragraphs 86 and 123 above), and that they travelled together to and from Singapore in September 2001 (see paragraphs 90 and 123 above), in the Tribunal’s opinion, point to the existence of a “marriage-like relationship” between them in this period.  Although Ms Melvin, in her evidence, proffered explanations for her using the name “Markland” and/or representing to organisations that she was in a spousal or de facto relationship with Mr Markland, those explanations, in the Tribunal’s opinion, are unconvincing.  In the Tribunal’s opinion, there was no compelling reason for Ms Melvin ever to have used the name “Markland” or to have represented to organisations that she was in a spousal or de facto relationship with Mr Markland, and the fact that she voluntarily did so on various occasions in the relevant period is telling.  The Tribunal notes the evidence of Ms Melvin’s children, siblings and close friends (referred to in paragraph 88 above) which points against the existence of a “marriage-like relationship” between Ms Melvin and Mr Markland.  The Tribunal, however, is not satisfied that any of those persons is fully, or even substantially, aware of all the circumstances of the relationship between Ms Melvin and Mr Markland, and, in any event, given their family or other close relationship with Ms Melvin, their evidence cannot reasonably be regarded as entirely disinterested and objective.  Their evidence, furthermore, does not sit well with the (objective) 50^th birthday party invitation from Mr Markland’s brother addressed to “Alan & Dianne” (referred to in paragraphs 89 and 123 above).  Accordingly, the Tribunal attaches little weight to the abovementioned evidence of Ms Melvin’s children, siblings and close friends regarding the nature of the relationship between Ms Melvin and Mr Markland.

11. In the Tribunal’s opinion, the nature of Ms Melvin’s and Mr Markland’s commitment to each other, as demonstrated by their provision of companionship and emotional support to each other, from 6 December 1999 and throughout this period (as summarised in paragraph 125 above), strongly points to the existence of a “marriage-like relationship” between them throughout this period.

12. The Tribunal concludes that, in its opinion, the relationship between Ms Melvin and Mr Markland, from 6 December 1999, became qualitatively different from that of a close friendship and business relationship which had existed between them from about 1990, and, having regard to the considerations referred to in paragraphs 119–125 above in respect of the matters set out in paras (a)–(e) of s 4(3) of the SS Act, was, throughout the period from 6 December 1999 to 12 July 2005, a “marriage-like relationship” within the meaning of s 4(2)(b)(iii) of the SS Act (as then in force).

    Finding

13. The Tribunal finds, therefore, that Ms Melvin was a “member of a couple”, within the meaning of s 4(2) of the SS Act, for the whole of the period from 6 December 1999 to 12 July 2005.

    The period from 30 April 2008 to 8 May 2011

14. It is convenient for the Tribunal next to consider the period from 30 April 2008 (when Ms Melvin and Mr Markland commenced residing together at Oakover Road) to 8 May 2011 (being the end of the relevant period), before considering the intervening period from 13 July 2005 to 29 April 2008 in which Ms Melvin was residing primarily at Pawlett Way and Mr Markland was residing at Oakover Road.

15. As previously mentioned (see paragraph 67 above) it is common ground, and the Tribunal is satisfied, that Ms Melvin resided with Mr Markland at Oakover Road from 30 April 2008 to 8 May 2011 (and continues to do so).

16. As regards the financial aspects of the relationship between Ms Melvin and Mr Markland in the period from 30 April 2008 to 8 May 2011:

    ·Mr Markland and Ms Melvin (as “Dianne Lillian Markland”) continued, throughout that period, to be the registered proprietors of Oakover Road as joint tenants, having first been so registered on 13 July 2005;

    ·Ms Melvin has continued to be the nominated sole beneficiary of Mr Markland’s estate in his Will;

    ·Ms Melvin has continued to be the nominated sole beneficiary of Mr Markland’s interest in the “Alan & Dianne Superannuation Fund”;

    ·Mr Markland was responsible for the payment of their day-to-day household expenses at Oakover Road.

17. As regards the “nature of the household” at Oakover Road, the living arrangements of Ms Melvin and Mr Markland, as described by Mr Melvin in her evidence, are summarised in paragraph 83 above.  The Tribunal notes, in particular, the evidence to the effect that, in the AFP search of Oakover Road on 9 November 2010, certain items of Ms Melvin’s clothing were found in Mr Markland’s wardrobe, some of her underwear and blouses were found in a drawer in Mr Markland’s bedroom, and a photograph of her deceased brother was found in Mr Markland’s bedroom, as well as Ms Melvin’s evidence in cross-examination that she sometimes watched television with Mr Markland in his bedroom and sometimes slept in the same bed as Mr Markland “for comfort” when she was having “bad nightmares or bad nights”.  The Tribunal also notes the evidence of Ms Melvin and Mr Markland (see paragraph 84 above) to the effect that Ms Melvin maintained the house and performed housework at Oakover Road and did the weekly shopping.  The Tribunal infers that Ms Melvin also did the cooking and that she and Mr Markland ate meals together.

18. As regards the social aspects of the relationship between Ms Melvin and Mr Markland in this period, the Tribunal notes that:

    ·in a Parking Infringement Appeal Form, dated 20 August 2010, lodged by Ms Melvin with the Cambridge Town Council, she referred to Mr Markland as her “partner” (T159);

    ·in the Will of Michael Kingsley Hatton (Ms Melvin’s brother), dated 8 September 2010, which was witnessed by Mr Markland and Ms Melvin (as “D Markland”), Ms Melvin is appointed Executor and Trustee in the name of “DIANNE LILIAN [sic] MARKLAND (NEE MELVIN)” (T135, pp 4323–4325).

    As regards the latter dot point, the Tribunal notes that, somewhat surprisingly, Mr Hatton did not refer specifically to that occasion in his statement in this matter (Exhibit R6, para 19, set out in paragraph 48 above).  The Tribunal also notes Ms Melvin’s evidence that she and Mr Markland had been on caravan/camping trips together.

19. The Tribunal has previously referred to the evidence of Ms Melvin’s children, siblings and close friends regarding the nature of her relationship with Mr Markland to the effect that that relationship is not a marriage-like or de facto relationship (see paragraph 88 above).  The Tribunal notes, on the other hand, the 2008/2009 Christmas/New Year cards from relatives addressed to “Uncle Alan & Aunty Di” and “Aunty Di & Uncle Al” (see the last three dot points in paragraph 89 above).

20. As previously mentioned, Ms Melvin’s and Mr Markland’s evidence was that they have not been in a sexual relationship since 1988, and there is no evidence before the Tribunal to the contrary.

21. There is, in the Tribunal’s opinion, significant evidence which supports the existence of a continuing commitment by Ms Melvin and Mr Markland towards each other, demonstrated by the provision of mutual companionship and emotional support in this period (see paragraphs 96 and 97 above).  The Tribunal also regards the evidence of Ms Melvin and Mr Markland, referred to in paragraphs 98–100 above, as indicating that, in this period, they considered that their relationship was likely to continue indefinitely.

22. Although Ms Melvin and Mr Markland have asserted that they do not see their relationship as a marriage-like or a de facto relationship, the Tribunal regards those assertions as self-serving and inconsistent with significant objective evidence before it, and it attaches little weight to those assertions for the following reasons:

    ·Ms Melvin’s understanding of a “marriage-like relationship”, as referred to in her evidence set out in paragraph 102 above, is, in the Tribunal’s opinion, idiosyncratic and not in accordance with the range of factors indicative of a “marriage-like relationship”/“de facto relationship” set out in s 4(3) of the SS Act;

    ·Ms Melvin’s evidence and Mr Markland’s evidence regarding a proposal of marriage by Mr Markland in January 2010 were inconsistent (see paragraphs 103, 104 above);

    ·Mr Markland’s evidence regarding the purchase of a diamond engagement ring for Ms Melvin on 16 February 2010 was inconsistent and unconvincing (see paragraphs 105, 106 above);

    ·Mr Markland’s evidence regarding the card entitled “For my Wife on your Birthday” (see paragraph 107 above) was unconvincing;

    ·Ms Melvin’s evidence regarding that card (see paragraph 108 above) was confused and unconvincing – she appeared to think that it was a Christmas card given to her by Mr Markland in 2009 by way of “showing moral support” for her when she was sick, her mother was sick and her niece was terminally ill, whereas it was a birthday card and her birthday was in August.

    Ms Melvin also stated in evidence:

    “ While the front of the card was about a wife, the verse in the middle was what it was all about.”

    The Tribunal notes, however, that the verse in that card concludes as follows:

    “ …  I just want you to know how much I love you and how very glad I am that you’re my wife.”  (T138, p 4508 – see paragraph 109 above)

23. In the Tribunal’s opinion, the evidence before it in relation to the factors set out in s 4(3) of the SS Act, with the sole exception of the factor set out in para (d) regarding the presence or absence of a sexual relationship, clearly points towards the existence of a “marriage-like relationship”/“de facto relationship” between Ms Melvin and Mr Markland throughout the period from 30 April 2008 to 8 May 2011. Accordingly, in the Tribunal’s opinion, having regard to the considerations referred to in paragraphs 135–142 above in respect of the matters set out in paras (a)–(e) of s 4(3) of the SS Act, the relationship between Ms Melvin and Mr Markland was a “marriage-like relationship”/“de facto relationship”, within the meaning of s 4(2)(b)(iii) of the SS Act (as in force at the relevant time), throughout that period.

    Finding

24. The Tribunal finds, therefore, that Ms Melvin was a “member of a couple”, within the meaning of s 4(2) of the SS Act, for the whole of the period from 30 April 2008 to 8 May 2011.

    The period from 13 July 2005 to 29 April 2008

25. The Tribunal has found that, throughout the period from 13 July 2005 to 29 April 2008, Ms Melvin was residing primarily at Pawlett Way and Mr Markland was residing at Oakover Road. That being the case, the question arises whether the “marriage-like relationship” which, in the Tribunal’s opinion, existed between Ms Melvin and Mr Markland throughout the period from 6 December 1999 to 12 July 2005 continued to exist throughout the period from 13 July 2005 to 29 April 2008 or, alternatively, whether Ms Melvin was “living separately and apart from [Mr Markland] on a permanent or indefinite basis”, within the meaning of s 4(3A) of the SS Act, in the latter period.

26. Although Ms Melvin and Mr Markland were, for the most part, residing at the abovementioned different addresses in the period from 13 July 2005 to 29 April 2008, the evidence indicates that various factors indicative of the continuation of the “marriage-like relationship” which, in the Tribunal’s opinion, existed between them throughout the immediately preceding period from 6 December 1999 to 12 July 2005, were satisfied in the period from 13 July 2005 to 29 April 2008.  That evidence may be summarised as follows:

    ·as regards financial aspects:

    -    Mr Markland and Ms Melvin were registered as the proprietors of Oakover Road, as joint tenants, on 13 July 2005, and have continued to be so registered from that date and for the whole of the relevant period;

    -    a mortgage over Oakover Road to Bank of Western Australia Ltd was registered on 13 July 2005 and discharged on 13 September 2006;

    -    a mortgage over Oakover Road to RAMS Mortgage Corporation was registered on 13 September 2005;

    -    Mr Markland and Ms Melvin established the “Alan & Dianne Superannuation Fund” on 22 June 2007 and Mr Markland nominated Ms Melvin as the sole beneficiary of his interest in that Fund;

    -    Ms Melvin continued to be the nominated sole beneficiary of Mr Markland’s estate in Mr Markland’s Will;

    ·as regards day-to-day household expenses:

    -    Synergy electricity supply account in respect of Oakover Road has been in the name of “Mrs Dianne Markland” from 19 July 2005;

    -    Statement of Usage in respect of a Telstra BigPond internet service at Oakover Road, for the period from 25 July 2007 to 24 August 2007, was addressed to “Ms Dianne Markland” at Oakover Road;

    -    notice issued by CIL Insurances, dated 21 March 2007, regarding the renewal of an insurance policy, in the names of “Mr Alan Markland” and “Mrs Dianne Markland”, covering a Roadstar Voyager 4000 caravan in the insured amount of $45,100;

    ·as regards social aspects:

    -    a business finance application by Ms Melvin (on behalf of Allwest) to Capital Finance, dated 15 June 2006 and signed by Ms Melvin, refers to her marital status as “de facto”;

    -    a personal application for finance by Ms Melvin to Macquarie Mortgages, dated 22 June 2006 and signed by Ms Melvin, refers to her marital status as “married” and her “spouse’s name” as “Alan Markland”;

    -    an application by Mr Markland for a BP-Citibank MasterCard, dated 7 June 2007, refers to his marital status as “de facto” and his “spouse’s name” as “Dianne” and includes details of an additional cardholder in the name of “Mrs Dianne L Markland” signed by Ms Melvin as “D Markland”;

    -    an invitation addressed to “Diane [sic] & Alan” to attend a wedding reception on 9 December 2007;

    -    Ms Melvin and Mr Markland travelled to Singapore together in December 2007 and visited Ms Melvin’s son (Adam), his (then) fiancée and their baby daughter.

1. Furthermore, it is common ground that:

   ·Mr Markland provided accommodation to Ms Melvin at Pawlett Way for the period from 13 July 2005 to 29 April 2008;

   ·the purchase of a Mercedes Benz motor vehicle for $86,319 in the name of “Dianne Lillian Markland” on 20 August 2007 was paid for by Mr Markland.

2. Although the Tribunal accepts that, in the period from 13 July 2005 to 29 April 2008, Ms Melvin resided primarily at Pawlett Way, it is not satisfied that she did not also stay at Oakover Road with Mr Markland for significant periods on a regular basis in that period.  Although there is no direct evidence to this effect, the Tribunal regards it as a reasonable inference from the evidence which is before it that, in the period from 13 July 2005 to 29 April 2008, Ms Melvin regularly spent time at Oakover Road for the purpose (at least) of doing housework, shopping and cooking for Mr Markland, as she had previously done when they were residing together at Pawlett Way and as she subsequently did when they resided together at Oakover Road.

3. Having regard to the considerations referred to in paragraphs 146–148 above, the Tribunal is not satisfied that the “marriage-like relationship” which, in its opinion, existed between Ms Melvin and Mr Markland throughout the period from 6 December 1999 to 12 July 2005 had broken down or ceased to exist in the period from 13 July 2005 to 29 April 2008. Accordingly, the Tribunal is not satisfied that Ms Melvin was “living separately and apart from [Mr Markland] on a permanent or indefinite basis”, within the meaning of s 4(3A) of the SS Act, in the period from 13 July 2005 to 29 April 2008.

4. The Tribunal is of the opinion that, notwithstanding that Ms Melvin was residing primarily at Pawlett Way and Mr Markland was residing at Oakover Road for the period from 13 July 2005 to 29 April 2008, their pre-existing relationship (being, in the Tribunal’s opinion, a “marriage-like relationship” within the meaning of s 4(2)(b)(iii) of the SS Act as then in force) did not materially change and continued unabated throughout that period.

   Finding

5. The Tribunal finds, therefore, that Ms Melvin was a “member of a couple”, within the meaning of s 4(2) of the SS Act, for the whole of the period from 13 July 2005 to 29 April 2008.

   Findings – “member of a couple”

6. Having regard to the discussion in paragraphs 110–150 above, the Tribunal’s findings regarding the issue of whether Ms Melvin was a “member of a couple”, within the meaning of s 4(2) of the SS Act, in the relevant period are as follows:

   ·Ms Melvin was not a “member of a couple” in the period from 22 August 1995 to 5 December 1999;

   ·Ms Melvin was a “member of a couple” for the whole of the period from 6 December 1999 to 8 May 2011.

7. Given the abovementioned findings, the Tribunal understands that it is unnecessary for it to consider the issues relating to Ms Melvin’s ownership of assets in the relevant period which were raised and addressed by the parties in their written submissions.

   Overpayment and debt

8. The Tribunal understands that a necessary result of its finding that Ms Melvin was a “member of a couple” for the whole of the period from 6 December 1999 to 8 May 2011 is that Ms Melvin received an overpayment of DSP in respect of that period. Pursuant to s 1223(1) of the SS Act, the amount of that overpayment is a debt due to the Commonwealth by Ms Melvin.

   Should the debt due to the Commonwealth by Ms Melvin be recovered from her?

9. Ms Melvin submitted that any relevant debt found to be due to the Commonwealth by her should be written off pursuant to s 1236 of the SS Act or waived pursuant to either s 1237A of the SS Act or s 1237 AAD of that Act.

   Write off of debt – s 1236 of the SS Act

10. Section 1236 of the SS Act relevantly provides as follows:

    “(1)       Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.

    (1A)The Secretary may decide to write off a debt under subsection (1) if, and only if:

    (a)the debt is irrecoverable at law; or

    (b)the debtor has no capacity to repay the debt; or

    (c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

    (d)it is not cost effective for the Commonwealth to take action to recover the debt.

    (1B)For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:

    (a)the debt cannot be recovered by means of deductions, or legal proceedings, or garnishee notice, because the relevant 6 year period mentioned in section 1231, 1232 or 1233 has elapsed; or

    (aa)the debt cannot be recovered by means of deductions or setting off because the relevant 6 year period mentioned in section 86 of the A New Tax System (Family Assistance) (Administration) Act 1999 has elapsed; or

    (b)there is no proof of the debt capable of sustaining legal proceedings for its recovery; or

    (c)the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or

    (d)the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.

    (1C)For the purposes of paragraph (1A)(b), if a debt is recoverable by means of:

    (a)deductions from the debtor’s social security payment; or

    (b)deductions under section 84 of the A New Tax System (Family Assistance) (Administration) Act 1999; or

    (c)setting off under section 84A of that Act;

    the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.

    …”

11. Ms Melvin submitted that any relevant debt was “irrecoverable at law” pursuant to para (a) of s 1236 (1B) of the SS Act on the basis that the debt cannot be recovered by means of deductions under s 1231 or legal proceedings under s 1232 because “the relevant 6 year period” commenced at the time when a Centrelink or departmental officer “should reasonably have been expected to become aware that she was a member of a couple”, namely, “at or about the commencement of the period of the overpayment”. The Secretary submitted that the 6-year limitation period set out in (relevantly) s 1231(2A) and s 1232(2) of the SS Act “has not expired as the first day on which a Centrelink officer became aware or could reasonably be expected to have become aware of the circumstances giving rise to the debt is 9 November 2010”, being the date when a search warrant was executed by the AFP at Oakover Road and relevant material was discovered. The Secretary submitted that, at no time prior to that date, did Ms Melvin “advise [Centrelink] of the full circumstances of her relationship with Mr Markland and state her alleged opinion as to the nature of the relationship”. The Secretary’s submission continued:

    “ It is contended on the evidence that Ms Melvin avoided bringing the full circumstances of her arrangements with Mr Markland to the attention of Centrelink or assessment and, at the very least, did not take all the steps she was required to take and was consequently misrepresenting that there was no relationship with Mr Markland upon which an opinion might be reached that it was a partnered relationship.”

12. The Tribunal does not accept Ms Melvin’s submission. The Tribunal instead accepts the Secretary’s submission to the effect that, on the basis of the information provided by Ms Melvin to Centrelink in response to Centrelink notices in the relevant period prior to 9 November 2010, Centrelink officers had not become aware, and could not reasonably have been expected to have become aware, of the circumstances of Ms Melvin’s relationship with Mr Markland that gave rise to the relevant debt. There being no other suggested basis on which the relevant debt is “irrecoverable at law” pursuant to s 1236(1B) of the SS Act, the Tribunal is not satisfied that that debt is “irrecoverable at law” within the meaning of para (a) of s 1236(1A) of the SS Act.

13. Ms Melvin also submitted that she “has no capacity to repay” the relevant debt within the meaning of para (b) of s 1236(1A) of the SS Act. Her written submissions relevantly state:

    “272.   Highlighting the difficult position in which the respondent will be placed, if the Tribunal were to find she was a member of a couple during the period under review:

    272.1Her living arrangements have not changed since the end of the period under review;

    272.2Accordingly, she would still, arguably, be a member of a couple with Mr Markland;

    272.3If so, Mr Markland’s assets would be considered when assessing the respondent’s entitlement to DSP and it is unlikely she would receive any benefit;

    272.4It is clear that her alleged ‘partner’, Mr Markland, has not previously supported her and has no intention of offering her financial support to repay any debt: EX R1, para [175]; ts17(42)-ts18(11).

    273.In the premises, the respondent would have no income and no way of repaying any debt raised.”

    The Secretary merely submitted (relevantly):

    “ Ms Melvin would have the capacity to repay the debt via assets or deductions from ongoing DSP payments (subject to her continued qualification).”

14. The Tribunal is unaware of the precise quantum of the relevant debt resulting from its abovementioned finding that Ms Melvin was a “member of a couple” for the whole of the period from 6 December 1999 to 8 May 2011 but it understands that it would be a substantial amount considerably in excess of $100,000. Nevertheless, the Tribunal is not satisfied that Ms Melvin does not presently have the capacity to repay that debt. Although, pursuant to s 1236(1C)(a) of the SS Act, a debtor is “taken to have a capacity to repay” a debt if that debt is recoverable by means of “deductions from the debtor’s social security payment”, Ms Melvin’s entitlement to ongoing DSP payments is, in the light of the Tribunal’s abovementioned finding, doubtful. The Tribunal is, however, satisfied that Ms Melvin has certain substantial assets, including the abovementioned Mercedes Benz motor vehicle, the abovementioned diamond ring, and her abovementioned interest in the “Alan & Dianne Superannuation Fund”, the proceeds of which could be directed towards repaying the relevant debt. Although Ms Melvin has submitted that it is “clear that … Mr Markland … has no intention of offering her financial support to repay any debt”, that assertion, in the Tribunal’s opinion, is not consistent with Mr Markland’s own evidence, as follows:

    ·in his evidence-in-chief he stated that, although he had “never assisted Dianne financially …”, he had “offered to help her out but she always refused” (Exhibit R3, para 27);

    ·in his evidence in cross-examination, when Ms Melvin’s statement, in her abovementioned interview with an AFP and a Centrelink officer on 11 November 2010, that he is “a good man who if I needed anything I could ask him for it”, was put to him, he responded:

    “ Yes, I suppose so, yes, yes.  Yes, I’d help her out, of course I would …” (Transcript, p 144)

    and he went on to say that he loved Ms Melvin as a friend and that she is “like family” to him (Transcript, p 145).

    Furthermore, Ms Melvin’s assertion is, in the Tribunal’s opinion, inconsistent with the very generous financial provision which Mr Markland has made for her by making her the sole beneficiary of his estate and by nominating her as the sole beneficiary of his interest in the “Alan & Dianne Superannuation Fund”. The Tribunal, moreover, has no reason to doubt that Ms Melvin’s sons would, if requested by her, provide financial assistance to her as they have done in the past (see Ms Melvin’s evidence in Exhibit R1, paras 174–175; Transcript pp 17–18). Accordingly, the Tribunal is not satisfied that Ms Melvin “has no capacity to repay” the relevant debt within the meaning of para (b) of s 1236(1A) of the SS Act.

15. There being no suggestion that either of the conditions set out in paras (c) and (d) of s 1236(1A) of the SS Act is satisfied in this case, the Tribunal concludes that, none of the preconditions of the existence of the discretionary power to write off a debt under s 1236(1) of the SS Act set out in subs (1A) of that section having been satisfied in this case, that discretionary power is not enlivened in this case.

16. Accordingly, the relevant debt due to the Commonwealth by Ms Melvin cannot be written off under s 1236(1) of the SS Act.

    Waiver of debt – s 1237A of the SS Act

17. Section 1237A of the SS Act relevantly provides:

    “   Administrative error

    (1)Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.

    Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).”

18. The Tribunal is not satisfied that there was any “administrative error made by the Commonwealth” within the meaning, and for the purposes, of s 1237A(1) of the SS Act. Rather, the Tribunal is satisfied that the relevant debt due to the Commonwealth by Ms Melvin was attributable to Ms Melvin’s being overpaid DSP in the period from 6 December 1999 to 8 May 2011 on the basis of information which she provided to Centrelink which, in the Tribunal’s opinion, did not fully or accurately represent her relevant circumstances.

19. Accordingly, the relevant debt due to the Commonwealth by Ms Melvin cannot be waived under s 1237A(1) of the SS Act.

    Waiver of debt – s 1237AAD of the SS Act

20. Section 1237AAD of the SS Act provides:

    “ The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

    (a)the debt did not result wholly or partly from the debtor or another person knowingly:

    (i)making a false statement or a false representation; or

    (ii)failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and

    (b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

    (c)it is more appropriate to waive than to write off the debt or part of the debt.”

21. The Tribunal notes Ms Melvin’s evidence regarding her financial and health circumstances (Exhibit R1, paras 169–186). The Tribunal also notes her submissions regarding not only her “current health issues” but also the “nature of [the Secretary’s] investigation and review” of her circumstances and the “delay caused by [the Secretary’s] failure to review [her] circumstances regularly or to seek to raise the debt at an earlier time”. The Tribunal, however, is not satisfied that Ms Melvin’s circumstances and/or the administration of the social security law by the Secretary in her case constitute “special circumstances” which would render it unjust, unreasonable or otherwise inappropriate for the Commonwealth now to recover from her the full amount of the relevant debt due to the Commonwealth by her. Accordingly, the Tribunal is not satisfied that there are “special circumstances … that make it desirable to waive” (within the meaning of para (b) of s 1237AAD of the SS Act), in whole or in part, the relevant debt due to the Commonwealth by Ms Melvin.

22. Accordingly, the relevant debt due to the Commonwealth by Ms Melvin cannot be waived under s 1237AAD of the SS Act.

    Conclusion

23. There being no suggestion that any other provision in Pt 5.4 of the SS Act regarding non-recovery of debts is applicable in this case, the Tribunal concludes that the relevant debt due to the Commonwealth by Ms Melvin is recoverable in full from her by the Commonwealth in accordance with Pt 5.3 of the SS Act.

    Decision

24. For the above reasons, the decision of the SSAT, dated 24 May 2013, is set aside and, in substitution therefor, it is decided that:

    ·Ms Melvin was a “member of a couple”, within the meaning of s 4(2) of the SS Act, for the whole of the period from 6 December 1999 to 8 May 2011;

    ·Ms Melvin received an overpayment of DSP in respect of that period and the amount of that overpayment is, pursuant to s 1223(1) of the SS Act, a debt due to the Commonwealth by her;

    ·that debt is recoverable in full from Ms Melvin by the Commonwealth in accordance with Pt 5.3 of the SS Act.

I certify that the preceding 170 (one hundred and seventy) paragraphs are a true copy of the reasons for the decision herein of Deputy President Hotop.

....................[sgd D Brodie]....................................................

Administrative Assistant

Dated 24 April 2015

Dates of hearing	7, 8, 9 October 2014
Date final submissions received	13 March 2015
Counsel for the Applicant	Ms L B Price
Solicitor for the Applicant	Australian Government Solicitor
Counsel for the Respondent	Mr N Ekanayake
Solicitor for the Respondent	Ms C Eagle Welfare Rights & Advocacy Service