Glachan; Secretary, Department of Family and Community Services

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 899

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2004/474, Q2005/18

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

Applicant

And

KRISTY GLACHAN

Respondent

And

KRISTY GLACHAN

Applicant

And

SECRETARY, DEPARTMENT

OF FAMILY AND
COMMUNITY SERVICES

Respondent

DECISION

Tribunal

Mr R G Kenny, Member

Date 16 September 2005
Place Brisbane

Decision

Application Q2004/474

The Tribunal sets aside the decision of the Social Security Appeals Tribunal dated 31 May 2004, substitutes its decision that Kristy Glachan was a member of a couple for the purposes of sub-section 4(2) of the Social Security Act 1991 in the period 15 December 2001 until 2 July 2003 and remits the matter to the applicant for calculation of any debt due to the Commonwealth.

Application Q2005/18

The Tribunal affirms the decision under review.

....................[Sgd].....................
R G Kenny
Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – parenting payment single –member of a couple at the relevant time

Social Security Act 1991 ss 4, 500, 503.

Re Secretary, Department of Family and Community Services and Bell [2000] AATA 252

REASONS FOR DECISION

16 September 2005

Mr RG Kenny, Member

Background

Kristy Glachan received social security payments including parenting payment, pursuant to the terms of the Social Security Act 1991 (the Act), in respect of her two daughters Tayla, who was born on 1 February 1998, and Shai, who was born on 2 June 2000. These payments were made on the basis that Ms Glachan was not living as a member of a couple.
On 30 October 2003, a customer services officer with Centrelink, a statutory authority within the portfolio of the Department of Family and Community Services, made a decision that Ms Glachan had been in a marriage-like relationship with Sean Jenkins in the period from 23 May 2000 until 2 July 2003. As a result of that decision, it was further determined that she was overpaid an amount of $33,791.77. An authorised review officer with Centrelink affirmed those decisions on 12 November 2003. On 31 May 2004, the Social Security Appeals Tribunal (the SSAT) determined that Ms Glachan had not been a member of a couple during that relevant period or at any subsequent time and it set the decisions aside. On 23 June 2004, an application was lodged on behalf of the Secretary of the Department for review of that decision by the Administrative Appeals Tribunal (the Tribunal).
In January 2004, another Centrelink officer formed the opinion that, at that time, Ms Glachan was not then living in a marriage-like relationship and payments to Ms Glachan were resumed at the single rate. In part, that was based on an understanding that Mr Jenkins’ partner was another woman, Katie Deeble. Ms Glachan’s file at the Beaudesert Centrelink office was taken over by a prosecutions officer, Rebecca Douglas, with Business Integrity, Gold Coast. On 10 June 2004, after investigating Ms Glachan’s circumstances, Ms Douglas made a decision to cancel Ms Glachan’s payments. Again, this was on the basis that she was in a marriage-like relationship. On 16 June 2004, an authorised review officer affirmed that decision and it was then affirmed by the SSAT on 16 December 2004. On 12 January 2005, Ms Glachan sought review of that decision by the Tribunal.
Prosecution proceedings which had been initiated by the Director of Public Prosecutions (the DPP) were discontinued on 22 February 2005.

Hearing

Ms Glachan attended the hearing and was represented by Ms S Thompson, of counsel. The Secretary was represented by Mr R McQuinlan.
The following material was taken into evidence:
exhibit 1:the “T” Documents for matter Q2004/474 (T1 – T128) prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975;
exhibit 2:the “T” Documents for matter Q2005/18 (T1 – T64) prepared as above;
exhibit 3:a Parentage Testing Procedure Report, dated 24 November 2004, relating to Tayla Allen and Sean Jenkins;
exhibit 4:a statement, dated 18 May 2004, by Ms Pauline Munn;
exhibit 5:a statement, dated May 2005, by Colleen Hagarty;
exhibit 6:a statement, dated 18 April 2005, by Ms Glachan;
exhibit 7:a statement, undated, by Mr Jenkins;
exhibit 8:a report, dated 7 April 2005, by Robin Purvis, child and family therapist;
exhibit 9:a statement, dated 27 April 2005, by Jody Houck;
exhibit 10:a statement, dated 27 April 2005, by Jodie Mears;
exhibit 11:a file note, undated, by Jodie Mears;
exhibit 12:a Certificate of Conviction, dated 16 June 2005, in the matter of Justin Leslie Comerford;
exhibit 13:a rent book completed by Sean Jenkins; and
exhibit 14:a letter, dated 24 March 2005, by Stephen Wallace.

Issues and Legislation

The qualifications for parenting payment are set out in section 500 of the Act and it is not disputed that Ms Glachan meets those requirements. The rate of parenting payment is worked out in accordance with the terms of section 503 of the Act and a higher rate of payment is applicable to a person who is not a member of a couple than is the case when the person is partnered. The criteria are differently stated depending upon whether the person is legally married to another person. It is not disputed that, in this case, Ms Glachan is not married and, therefore, a member of a couple, in her case, is a person who meets the requirements of paragraph 4(2)(b) of the Act which reads:
4.(2) Subjects to subsection (3), a person is a member of a couple for the purposes of this Act if:
(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 for the purposes of section 23B of the Marriage Act 1961.
The only component of that provision in dispute in these matters is subparagraph 4(2)(b)(iii) ie whether Ms Glachan and Mr Jenkins were in a marriage-like relationship in the period referred to in the first decision under review and on the date of the second decision under review. No dispute has been raised in relation to the quantification of the debt. Subsection 4(3) of the Act sets out the criteria for forming an opinion about a person’s relationship. It reads:
4.(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or 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.

Evidence

Kristy Glachan and Sean Jenkins

Ms Glachan and Mr Jenkins gave the following evidence.
They met through Mr Jenkins’ association with the father of Tayla, Justin Comerford. Ms Glachan had been in a relationship with Mr Comerford for some months in 1997 and this was characterised by physically and emotionally violent behaviour towards her. After Tayla was born in February 1998, Ms Glachan and Tayla lived in a mobile home at Stapleton until August 1998. After Mr Comerford threatened violence to her and Tayla, she moved to the house of a friend for a few weeks but Mr Comerford located her and so she moved to Kunde Street, Loganholme, from January to August 1999. This was the home of Mr Jenkins’ parents. In 1998, Mr Jenkins had witnessed an episode of violence by Mr Comerford to Ms Glachan which resulted in a conviction for assault and Mr Jenkins had been concerned for her well-being.
After Mr Jenkins’ explained Ms Glachan’s situation to his parents, they allowed her and Tayla to stay with them. Mr Jenkins did not live with his parents but in rented premises at Kerrong Court, Shailer Park. Again, Mr Comerford became aware of where Ms Glachan was and would drive past and make phone calls to the Kunde Street house. Mr Jenkins invited Ms Glachan to move to Kerrong Court for security and she stayed there until December 1999. At Kerrong Court, Ms Glachan fell pregnant to Mr Jenkins with her second child. They said this occurred as a result of a single episode of sexual intercourse when both of them were intoxicated.
On one occasion, a friend of Mr Comerford arrived at Kerrong Court and, shortly afterwards, Ms Glachan again moved because she was concerned at being approached by Mr Comerford. She moved to Dennis Road, Jimboomba, where she stayed until September 2000. The lease at Dennis Road was taken out in the name of Mr Jenkins. They explained that this was done as Ms Glachan had no positive rental history which would enable her to obtain rental accommodation in her own name. This was because the mobile home at Stapleton had been damaged by Mr Comerford after he found that she had moved. They said that it was a common thing for people to pretend to be in a relationship for the purposes of obtaining rental accommodation. The owner of the house at Dennis Road had wanted a family for the house and the three of them presented as a family unit for the purposes of obtaining the lease. Mr Jenkins continued to live at Kerrong Court until the lease there expired and then returned to live with his parents. This was while his new house was being built at Lot 68 Ashwood Drive, Cedar Grove. Shai was born on 2 June 2000 while Ms Glachan was living at Dennis Road. They said that Mr Jenkins did not live at that address but visited from time to time and looked after the lawn. Ms Glachan said that, throughout the period, she was fearful that Mr Comerford would locate her and, for that reason, all of the phone and electricity accounts were in Mr Jenkins’ name.
Ms Glachan did not have good rapport with the owner of the Dennis Road house. She terminated the lease early and did not get a refund of the bond monies. She lived with a friend for some weeks in September 2000 at Rowena Street, Boronia Heights, and then moved to Cedar Grove Road, Jimboomba, to a house which was leased in Mr Jenkins’ name. Again, this was because of her previous record and because she had been unable to get a reference from the owner of the Dennis Road house. They said that Mr Jenkins did not live at the Cedar Grove Road house but would visit from time to time and take Shai, and sometimes Tayla, for outings to his parent’s place. Mr Jenkins said that, at times, he would sleep there and that, when he did, he slept alone on a couch.
Mr Jenkins consulted Ms Glachan on some aspects of the finishing of the house in Ashwood Drive, in particular the colour schemes, but she had no financial interest in it. On 15 December 2001, Ms Glachan moved into the new house with her two children. The arrangement was that she would pay rent to help Mr Jenkins with the mortgage and to provide her with a safe place to live. She was still living there at the time of the Tribunal hearing. They said that the arrangements had always been the same in Ashwood Drive with no relationship between them apart from friendship.
Though the Ashwood Drive house was completed, there were some building faults which needed repair. Because she was at home during the day, Ms Glachan dealt with the builders. She wrote letters on behalf of Mr Jenkins to the Building Services Authority and referred to herself and Mr Jenkins as having problems with the plumbing. Mr Jenkins said that he told her what to write and she simply filled them out for him. Ms Glachan agreed that she had been described in documentation completed by the Building Services Authority as Mr Jenkins’ wife but she said that she had never described herself as that and it was an impression that the Authority’s staff must have gained when they were at the house.
Ms Glachan said that, during the house repairs, she would ring Mr Jenkins at work, from time to time, and relay any messages that had to be given to him. She visited him there when she needed to drop something off to him but said she did not attend any work-related functions and did not represent herself to his employer as being in a de facto relationship with Mr Jenkins.
The Ashwood Drive home has its front entrance in the centre facing the roadway. Upon entry, there are living areas to the immediate left and right and a kitchen and eating area in the middle at the rear. Beyond the living room to the left are three bedrooms and a bathroom. To the right of the entrance there is a larger living area and then a bedroom with en suite bathroom. They said that Ms Glachan and the children occupy the left end of the house and that Mr Jenkins occupies the other end. There is a television set in each of the living rooms and Ms Glachan and the children use the set in their living area and Mr Jenkins uses the other. There is a large pantry with separate shelves for their own materials and they said that they each do their own cooking and clean up after themselves independently.
As far as the financial circumstances of their living together were concerned, Ms Glachan paid rent in the amount of $150 per week and each paid for their own telephone calls and shared electricity bills between them. Ms Glachan said that she had major difficulties once she had been taken off Centrelink payments in October 2003 and was not able to make rental payments. A record was kept by Mr Jenkins of the moneys that Ms Glachan owed to him and she said that she intended to pay him when she could. At the time of the hearing, Ms Glachan was self-employed making catalogue sales of lingerie and was beginning to earn a reasonable income. She said that she has resumed paying her rent again. Mr Jenkins said she owed him an accumulated debt of nearly $8,000 and that he extended credit to Ms Glachan because she was the mother of Shai.
Ms Glachan and Mr Jenkins have never shared a bank account and she was not financially involved in the construction of his house. Mr Jenkins conceded that, at his work, DKM Fabrications, he had nominated Ms Glachan as next of kin and as beneficiary in his superannuation policy with Suncorp Insurance. He said that the superannuation arrangement was because Ms Glachan was pregnant and he wanted to make provision for the child’s future. He subsequently changed it to make Shai the beneficiary and said he had never intended that Ms Glachan would receive the monies. Mr Jenkins conceded that he had ticked a “No” box on a Centrelink questionnaire which was an assessment of living arrangements when he was asked whether he had ever nominated Ms Glachan in a superannuation policy as the beneficiary. Ms Glachan said that she had not been aware that she was nominated by him as a beneficiary or next of kin until it was done. Mr Jenkins agreed that Suncorp records listed Ms Glachan as his girlfriend and his addresses as 50 Dennis Road, Cedar Vale and 139 Cedar Grove Road, Cedar Grove. He said that he used those addresses and gave the same telephone number for each of them because he was “there a lot”.
Ms Glachan said there was not much social life with her and Mr Jenkins. She said that there was daily contact between them as friends and they would occasionally watch a movie or a show together and sometimes they took the girls to the beach. She said that they would go out occasionally together but mainly Mr Jenkins went out with his mates. Many of his friends were connected with Mr Comerford and Ms Glachan did not want to be associated with them. Mr Jenkins said that they did not have any social arrangements away from the house. They both said that they had never holidayed together.
Mr Jenkins has a car and also a utility vehicle for his work. Ms Glachan uses the car to drive the children to school and pre-school and on some weekends. Ms Glachan said that she always asked permission first and pays for the petrol that she uses. She also goes to the Gold Coast once a week to promote her clothing lines. This is on Friday nights and she returns to the home at about 8.00pm. She drives Mr Jenkins’ car on these occasions and he looks after the children while she is away. Ms Glachan said that there is not a lot of interaction between Mr Jenkins and the children in the house as he spends a lot of time in the garden though he usually looks after them when she goes to P & C Meetings at the local school.
Katie Deeble moved to Ashwood Drive in November 2003 and stayed until 3 February 2004. Mr Jenkins said that he had been in a sexual relationship with her for some years. They would contact each other by telephone several times a week and see each other from time to time. He said that she was his only girlfriend during the period and that he also provided her with some financial support because she borrowed money to purchase drugs. He said that he and Ms Deeble shared his bedroom at Ashwood Drive. Ms Glachan said that she met Ms Deeble in 1999. She realised that Ms Deeble and Mr Jenkins had been partners, on and off, for a few years and she confirmed that Ms Deeble shared Mr Jenkins’ bedroom at Ashwood Drive. Ms Glachan said that she often cooked meals for herself, her daughters, Mr Jenkins and Ms Deeble when Ms Deeble was living there. She said it was different when Ms Deeble moved in because she was moody, opinionated and at times difficult and not very tolerant with the children.
The births of Shai and Tayla were both registered on 31 August 2000. Mr Jenkins was registered as the father of both girls. Ms Glachan said that Mr Comerford, Tayla’s father, had refused to sign the relevant documentation for her and, as she did not want to leave the name of the father blank, she asked Mr Jenkins to sign it as the father. Mr Jenkins agreed that he had allowed his name to be used on Tayla’s birth certificate because he did not want to see Mr Comerford’s name there. He said that his carefree nature may have explained this and that he “just did a nice thing” in that regard. He said he did not put his mind to the consequences of his name being used on the birth certificate. Ms Glachan said that Tayla regards Mr Jenkins as her father and calls him “dad”. She said that the explanation of correct parentage will need to be given but that will be in the future. Mr Jenkins said that he does not treat Tayla as a father would but he does accept that he is a father figure to her. The address on Shai’s birth certificate is 50 Dennis Road, Jimboomba, for both Ms Glachan and Mr Jenkins. The address on Tayla’s certificate is 8 Kunde Street, Loganholme, for both of them. Neither Ms Glachan nor Mr Jenkins was able to explain why differing addresses were used on each certificate or why they were both described as being at the same address on each certificate. She said that Mr Jenkins was living at Kunde Street with his parents at that time and she was living at Dennis Road. Mr Jenkins said that he was having some problems with his mail at Kunde Street.

“Allen” was the maiden name of Ms Glachan’s mother. Tayla was enrolled at the Jimboomba Child Care Centre in April 2002 as Tayla Jenkins-Allen. Mr Jenkins was nominated as the father with Mr Jenkins’ mother being nominated as an emergency contact. Ms Glachan said that she had not provided that information to the Centre and believed that they may have copied it from Shai’s enrolment information which had been provided by Mr Jenkins.
Ms Glachan said that Tayla had been registered with Centrelink as Tayla Allen. When she was enrolled at school in 2004, Ms Glachan was required to produce her birth certificate. This revealed the name Tayla Jenkins and so she was registered under that name. In April 2004, she requested that this be changed to Tayla Allen on school records. She said that this was at the request of Tayla who had visited her grandmother of that name and wanted to be called that too.
Ms Glachan said that Shai had not been registered with Centrelink until she was enrolled in the Child Care Centre. The Centre needed Centrelink details and, therefore, Ms Glachan had to register her with Centrelink. She said that she had not done so earlier because she had not realised that she would be able to receive additional payments for a second child. Ms Glachan agreed that she had told a Centrelink officer that she had not claimed for Shai because she had not been given any forms at the hospital. Ms Glachan also agreed that Centrelink had investigated her arrangements with Mr Jenkins in 1999 but denied that she had been fearful of advising Centrelink about Shai because that would mean that they would learn of the relationship with Mr Jenkins and conduct a further investigation.
Ms Glachan and Mr Jenkins said there were no special arrangements in relation to the birthdays of Tayla and Shai or between her and Mr Jenkins although they each bought the other presents. There were no set arrangements to celebrate Christmas and Ms Glachan said that sometimes her family visited and sometimes Mr Jenkins took the girls to his parents’ place. She said that they both went there with the two girls on Christmas Day 2003. She said she did not want to be at home on her own at Christmas and that, though Ms Deeble was living at Ashwood Drive over that Christmas period, she did not stay there at Christmas time.
Ms Glachan said she found it convenient living at Ashwood Drive because the rent was low and, occasionally, Mr Jenkins looks after the children and plays the role of father. She said that there was no sexual relationship between them and that she cared for Mr Jenkins as a friend and hoped that this would continue. She said she would like to move out of the Ashwood Drive home as soon as she is able to but would only be able to do that if she can find someone with whom she can share premises. On the final day of the hearing, Ms Glachan said that she was about to move from Ashwood Drive to Mt Tamborine where she would be sharing premises with her sister and her sister’s boyfriend. After the hearing, Ms Glachan forwarded to the Tribunal a copy of a general tenancy agreement for 26 weeks starting on 5 August 2005. She said that she had not discussed it with Mr Jenkins but would probably make an arrangement where he would see the girls every second weekend.
Ms Glachan was referred to a statement by Colleen Hagarty and denied that she would have described Mr Jenkins as her “ex” to her. She said that this was not a term that she used. She said that she had told her that she had different fathers for her two children.
Ms Glachan said she obtained a domestic violence order against Mr Comerford in August 1999 and that he did not comply with it. She made a claim for Child Support from him but he made it difficult and threatened her in such a way that she stopped seeking payments in 2000. She went to the Family Court for residence and contact orders and Mr Comerford was to have supervised visits on Saturdays. He did this for a while with supervision from his sister but eventually it ended and he does not see her at all now. Centrelink eventually waived the requirement to receive moneys from him. Mr Jenkins accompanied her to the Family Court when contact orders were made in favour of Mr Comerford. She described him as her “support person”.

Paula Munn

Ms Munn was Ms Glachan’s neighbour at Dennis Road. She saw Mr Jenkins at times when he came to mow the lawn and she spoke with him on one occasion over the fence. She spoke often with Ms Glachan and was in Ms Glachan’s house on occasions. She saw Mr Jenkins’ car there from time to time but said that it would be gone by 8.00 pm. She did not believe that Mr Jenkins was living there or in a relationship with Ms Glachan at that time.

Colleen Hagarty

Ms Hagarty’s children and Tayla attend the Woodhill State School. She is the convenor of the school canteen. She said that Ms Glachan was heavily involved in school activities, was the President of the Parents and Citizen Association and also gave assistance in the school canteen for two or three days per week. She said that they became friends through this association. She had never met Mr Jenkins but had heard of him. She had been to Ms Glachan’s home on several occasions and Mr Jenkins had not been there. She frequently had Ms Glachan around to her place for social functions and she attended without a male partner. She said that she had attempted to find male companions for Ms Glachan but had been unsuccessful. She even thought she had “made up” Mr Jenkins in order to stop her from attempting to find dates for her. She said that she had heard Ms Glachan refer to Mr Jenkins when she said she would be borrowing his car. She said that she once asked who he was and Ms Glachan had said that he was her “ex”.

Stephen Wallace

Mr Wallace is the Principal of the Woodhill State School. He met Ms Glachan in January 2004 when she first enrolled Tayla. He described her as having a strong interest in school activities such as the P & C Association, fundraising and canteen assistance. He said that, on one occasion, he drove Tayla home because Ms Glachan could not collect her due to battery problems with her car. He managed to fix the problem and was invited inside the house in Ashwood Drive. He described the house as having common areas of kitchen and living areas in the middle with bedrooms at either end. He said that Tayla went to the left side where her room was and he noted, at the other end of the building, various items of men’s work clothing on the floor. He considered one end of the house to be tidy but the other end not. Mr Wallace said that he met Mr Jenkins when he came to the school to carry out some repairs after the canteen had been broken into and damaged. He said that he had seen Ms Glachan and Mr Jenkins together at functions such as parent evenings. He had not seen her on social occasions except for a time when he saw her at a football match when she was with people other than Mr Jenkins.
Mr Wallace said that, at one stage, there had been some concern for Tayla’s progress at school and he spoke to Ms Glachan about that and she advised him that there had been a history of domestic violence in their lives. He said that he did not think Ms Glachan was in a relationship with Mr Jenkins.
Mr Wallace said that Tayla was initially enrolled with the surname of “Jenkins” and Mr Jenkins’ details were included as parent/guardian. On a form completed by Mr Wallace at the request of Centrelink, he advised that Ms Glachan had approached him on 21 April 2004 for Tayla’s name to be changed from Jenkins to Allen. He said that this change was made on 3 June 2004 and, at the same time, Mr Jenkins’ details were removed from the registration form.

Robin Purvis

Ms Purvis is a child and family therapist who prepared a report on Ms Glachan on 7 April 2005. She had read the Centrelink material and had three meetings with Ms Glachan in March 2005. She described a level of violence in Ms Glachan’s childhood and noted that she had resided in a number of refuges in her teenage years. Ms Purvis referred to the violent association that Ms Glachan had with Mr Comerford and described how she had been “on the run” from him in the following years. Ms Purvis said that Ms Glachan would have been traumatised by her experiences with Mr Comerford and fearful as a result of the violence perpetrated by him and by his continuing threat to her.
Ms Purvis believed that Mr Jenkins acted responsibly in assisting Ms Glachan and Tayla to live in safety. She said that Ms Glachan had not identified Mr Jenkins as a partner but as a friend who played the role of protector and mentor. She thought that Ms Glachan, in her vulnerability, had formed a significant psychological attachment to Mr Jenkins as he personally represented safety and trustworthiness in the period when she was at risk. She considered that, by renting part of the house, she had maintained an economic and family life independent of Mr Jenkins and that, without the safety net provided by Mr Jenkins, she would have been vulnerable to importunate associations with possibly abusive partners in attempts to mitigate against loneliness, isolation and fear.
In her evidence, Ms Purvis said that domestic violence victims are often in the situation of the need for dependence in a friendship and she said that they may be traumatised for some years. She said that Ms Glachan’s childhood had been traumatic and that Mr Comerford had compounded a vulnerable personality.

Katie Deeble

Ms Deeble’s evidence was that she first met Mr Jenkins in 2000 and they had a relationship although they did not share premises until November 2003. Prior to that, she was living with her parents but, when that house was sold, she accepted Mr Jenkins’ invitation to move in with him. Ms Glachan was there at the time. Previously, they had not been really serious but they were seeing each other over a period of four years with a frequency of, at times, twice a week or once or twice a month. In Ashwood Drive, she shared the bedroom with Mr Jenkins.
Ms Deeble described the house in terms similar to those given by Ms Glachan and Mr Jenkins. She said they all ate their meals together and that, sometimes, Ms Glachan and Mr Jenkins each did some of the cooking. She said she only stayed for two to three months in Ashwood Drive and that, during that period, she would often be away for a couple of days each week because the house was quite remote from transport and, if she left, it was difficult for her to get back. She said that she moved out for a period of three to four weeks during Christmas when she lived at her mother’s house and did not see Mr Jenkins or Ms Glachan on Christmas day. She was aware that they were going to take the children to both sets of parents for Christmas and was annoyed that Mr Jenkins did not give her a Christmas present. She said she was only in the house for a total of about five weeks even though it stretched over a three month period.
Ms Deeble said that, whilst in the house, she had noted a document from Mr Jenkins’ employer which described Ms Glachan as his de facto and his emergency contact. She said that this caused her to become jealous and, when she questioned them, they said it was simply easier that way. She said she was aware that Mr Jenkins was the father of Shai and thought that it was all very weird for Ms Glachan and the two children to be living there. She said that she had not seen Ms Glachan and Mr Jenkins in any social setting but was aware that they were together at Christmas 2003. She said she was not there much on weekends and did not know what they did.
Ms Deeble said that Mr Jenkins paid for most of the household groceries but that Ms Glachan would purchase her own toiletry needs as well as treats for the children. She said that, sometimes, Ms Glachan watched television in the main lounge with her and Mr Jenkins. This was usually before the children went to bed and when they did she would leave them alone. She said that, when she first moved in, she was still employed and paid rent. She described Mr Jenkins as being very generous as he did not require her to pay rent or purchase her food after she lost her job. He also gave her money which she used to purchase drugs that she was taking at the time. In relation to the period before she moved to Ashwood Drive, she said that their relationship was mainly sexual and there were varied times of contact. She said they would not go out much but would sometimes go to a local bar.
Ms Deeble agreed that she had made a written statement on 30 January 2004 to Centrelink where she advised that she was Mr Jenkins’ partner living with him in Ashwood Drive; that she had been his partner since the start of 2000; and had lived with him since November 2003. She also advised Centrelink that Ms Glachan lived at the address; that Mr Jenkins was the father of her child; but that he and Ms Glachan have never been together as partners. Ms Deeble said she attempted to get new start allowance from Centrelink but was advised that, because she was linked with Mr Jenkins as his partner, his income would preclude her from receiving payments. She said that, eventually, she decided to move out of the house and did so on 3 February 2004 without telling anyone she was leaving. She agreed that she again contacted Centrelink on 20 February 2004 and made a statement that she and Mr Jenkins were no longer partners. She said that her mother provided a statement that she had been living with her from 3 February 2004.. and she said that she went on to newstart allowance after that.
Ms Deeble also agreed that she signed a statement, dated 2 June 2004. She said that she had been visited by two Centrelink officers whom she now believed to be Rebecca Douglas and Pam McLeod. They interviewed her over a period of about four hours when they made a surprise visit to where she was living at the time. She said that the first question asked of her by Ms Douglas was how much Ms Glachan had paid her to make the statement that she was the partner of Mr Jenkins. Ms Deeble said that she advised her that she had not been paid anything. She also said that, at that time, she was a heavy user of heroin and this impacted upon her during the interview. She said that, since then, she has been on a treatment program and is now free of drugs. Ms Deeble said she read through the statement and then signed it, but that she was really unwell at the time. She agreed she said at the end of the statement:
“Now looking back on the situation I feel that I was used by Kristy and Sean to help cover up whatever they have going on.”

However, she said that she now believes there was no “cover up”.

Jody Houck

Ms Houck was a social worker employed by Centrelink at the Browns Plains office and had dealings with Ms Glachan in 2003 and 2004. She completed a report, dated 19 February 2004, in which she concluded, based on the information that she had before her, that Ms Glachan was not residing in a marriage-like relationship with Mr Jenkins at that time. Ms Glachan had provided information to her about the domestically violent relationship she had with Mr Comerford. She told Ms Houck that she has never lived in a marriage-like relationship with Mr Jenkins, that he was living with Ms Deeble at the Ashwood Drive home and that she would like to move out of the premises but prevented from doing so by financial constraints. She said that she had been required to borrow money from him to pay for her living expenses and that she would be repaying him when she could. Ms Houck said that her assessment of Ms Glachan was that she had been in genuine fear of being located by Mr Comerford and was fearful of living alone.

Jodie Mears

Ms Mears completed a statement on 27 February 2005. She was responsible for granting Ms Glachan parenting payment at the unpartnered rate in 2004. She said that the decision was based on evidence provided by Ms Glachan, the report from Jody Houck, the note from Katie Deeble which said she was Mr Jenkins’ partner and discussions with other Centrelink officers including Rebecca Douglas of prosecutions. She said that, on all the material before her, she came to the conclusion that Ms Glachan and Mr Jenkins were not in a marriage-like relationship. She said that the letter from Katie Deeble was weighted as significant in her assessment. Ms Mears said that she was not aware that Ms Deeble had left Mr Jenkins on 3 February 2004 and said that, if that had been known to her, it might have made a difference because it would have required further investigation.

Rebecca Douglas

Ms Douglas was a prosecution officer with Centrelink and she investigated Ms Glachan’s entitlements and eventually made a decision to cancel her payments on 10 June 2004. She said that she did so because she believed that she was a member of a couple with Mr Jenkins.
Ms Douglas agreed that, after she found out that payments had been regranted to Ms Glachan by Ms Mears, she wanted to know why this had been done. She became aware that Ms Deeble’s statement had been relied upon and she wanted to further investigate that by interviewing her. Ms Douglas interviewed Ms Deeble when she and Pam McLeod made a surprise visit to her place. She said that Ms Deeble was worried about her own payments but was reassured that the concern was not with her. She agreed that the interview had taken place over a few hours but said that Ms Deeble was willing to participate. She said that the interview was actually conducted by Pam McLeod but that she had written the final statement which was signed by Ms Deeble. Ms Douglas denied that anyone had asked Ms Deeble how much she had been paid by Ms Glachan to provide the earlier statement to Centrelink about her relationship with Mr Jenkins. She agreed that, during the interview, there were times when Ms Deeble became upset but this was when she revealed that her mother had always thought that Mr Jenkins was using her. Ms Douglas said that she was “up and down” but there was no need to discontinue the interview. Ms Douglas denied there had been any bullying of Ms Deeble during the interview in order to get information that she wanted from her.

Submissions

Mr McQuinlan

Mr McQuinlan submitted that the requirements of sub-section 4(3) of the Act have been met and that Ms Glachan and Mr Jenkins were living in a marriage-like relationship at all relevant times. He referred to the occasions when they represented themselves to others as being in a de facto relationship and submitted that there were many inconsistencies in their evidence and a demonstrated willingness to tell deliberate lies on formal documents. He submitted that there was a convenience factor associated with the coming and going of Ms Deeble into the Ashwood Drive home and that it was significant that Ms Deeble contacted Centrelink and said she was moving out the day after the report of the social worker Jody Houck was completed. He submitted that there were also inconsistencies in Ms Deeble’s evidence in that, at the time she was there, she felt that she was being used but said that this was not her current view. Mr McQuinlan submitted that, whatever role Ms Deeble played at the time of the first decision, she was no longer in relationship with Mr Jenkins at the time of the second cancellation decision.
In relation to financial aspects, Mr McQuinlan conceded that there was no joint ownership of real estate or other assets. However, he submitted that the financial advantage of being able to use Mr Jenkins’ car and live in his home were highly relevant. He noted that she did so for long periods without paying rent and with Mr Jenkins assuming financial responsibility for both of the children at times. He conceded that, after Ms Glachan was taken off payments, there was an inevitable greater reliance on Mr Jenkins in a financial sense but submitted that this had not been the case in the period when the overpayments were made. He noted that, early in her evidence, Ms Glachan described a limited use of the car such as taking the children to school but subsequently revealed that she used it to travel to the Gold Coast every week for the purposes of demonstrating the products that she sells.

As to the nature of the household, Mr McQuinlan submitted that there was evidence that Mr Jenkins was a frequent visitor at the various premises where Ms Glachan claimed to live alone. He conceded that there was some support for that from Ms Munn but submitted that Ms Munn would not be aware of all of the comings and goings of Mr Jenkins. He accepted that the design of the Ashwood Drive house may have enabled them to live in separate bedrooms but submitted this was not decisive. He noted that Ms Glachan had some input into the design of the house and assumed responsibility for providing information to the repairers when the Building Services Authority was involved. Mr McQuinlan noted Mr Jenkins’ willingness to undertake baby-sitting duties from time to time.
As to the social aspects, Mr McQuinlan submitted that there was a reference in the T documents to Ms Glachan and Mr Jenkins going on holidays for the children and yet they both gave evidence that they did not do so together. He referred to Ms Glachan’s concession that they did have some social outings together and to their evidence that they spent Christmas 2003 in each others company and with the children when they visited their parents and to the exclusion of Ms Deeble. Mr McQuinlan noted that Ms Hagarty had said that Mr Jenkins was described as Ms Glachan’s “ex” and submitted that there was no reason for her to get that wrong. He also noted that, although Ms Glachan denied that she used such a term, it had been used by her in documents in evidence.
Mr McQuinlan submitted that it was an unlikely scenario that sexual intercourse had only occurred between Ms Glachan and Mr Jenkins on one occasion though he accepted that, biologically, this was all that was required. Nevertheless, he submitted that the absence of the sexual relationship was not determinative and that their relationship was one that went beyond mere friendship.
Mr McQuinlan submitted that there was a long term commitment by Mr Jenkins and Ms Glachan to each other and that, while on various occasions Ms Glachan has stated that she would like to leave the Ashwood Drive home, she was still there on the final day of the hearing although she had also indicated that she would be moving out shortly thereafter. He noted Mr Jenkins’ willingness to allow his name to be used on Tayla’s birth certificate and to allow both of the girls to call him “dad”. He submitted that this demonstrated commitment as did Mr Jenkins’ willingness to allow Ms Glachan to remain in the house without paying rent and to use his name on leases to provide secure premises for Ms Glachan.
Mr McQuinlan submitted that all of the facts needed to be considered together and that whatever view the couple had of themselves was not conclusive. He submitted that their lives were characterised by sharing, by long history of involvement, of companionship, safety and security and that the terms of subsection 4(3) of the Act were met.

Ms Thompson

Ms Thompson submitted that, despite some inconsistencies in their evidence, both Ms Glachan and Mr Jenkins were credible witnesses who were doing their honest best to tell the truth. She noted the representations about their relationship in the documents completed to obtain leases and submitted that it made sense that they would do this in Ms Glachan’s situation with no rental history. As for the addresses given by Mr Jenkins in, for example, his finance application she submitted that, while he did not reside there, the address he nominated was one which, at law, was correct because it was an address which represented a property that was leased in his name.
Ms Thompson submitted that the workmen conducting repairs at the house may well have formed the view that Ms Glachan was in a relationship with Mr Jenkins but that this was a view that they would come to simply because they saw her in the house with the children. She also referred to the letters written by Ms Glachan on behalf of Mr Jenkins to the Building Services Authority and submitted that this was because both of them had an interest in the repairs being made and because she was better at writing letters than was Mr Jenkins. Ms Thompson noted that Ms Glachan had been made aware in 1999 when she was at Kerrong Court that she and Mr Jenkins were being investigated. She submitted that it would defy common sense for them to continue to live a lie without changing their mode of operation. She submitted that the explanation was that they continued what they were doing because they believed they were not living as partners.
In relation to Mr Jenkins’ visits to the houses where Ms Glachan lived, Ms Thompson submitted that this was to enable him to see his daughter and, while at Dennis Road, to provide help with the mowing of the lawn.
Ms Thompson referred to the late claim made by Ms Glachan for Shai in respect of parenting payments. She submitted that this was perfectly consistent with her evidence that she did not realise she was entitled to make a claim and had not been given the relevant forms. She submitted that, while that may have been naive of Ms Glachan, the decision to make the application was triggered by her involvement with child care.
In relation to Ms Deeble, Ms Thompson submitted that her evidence and that of Mr Jenkins was clear that they had been in a relationship which, although unconventional, had existed for some four years. She submitted that there was no reason to suggest that her moving into Ashwood Drive was not genuine and noted that Ms Deeble was in a difficult financial position at that time because of her drug addiction.
Ms Thompson was critical of the approach of Ms Douglas in this matter. She noted that Ms Douglas claimed to have a very specific recollection of how Ms Deeble related during the interview with her but no recollection of other things which occurred at around that time. Ms Thompson submitted that Ms Douglas was over-enthusiastic in the way that she dealt with Ms Glachan’s case and, in respect of the decision of June 2004, she was relying upon old material from the first investigation.
Ms Thompson conceded that there was financial support by Mr Jenkins for Ms Glachan but submitted that this was related to the decision to take her off benefits. She submitted that there were no other financial dealings between them and that the debt she had incurred would be repaid.
Ms Thompson submitted that there was no evidence of any social relationship between Ms Glachan and Mr Jenkins.
Ms Thompson submitted that there was merger of functions in cooking and cleaning but she contended that this is a characteristic of any shared residence. She submitted that there was nothing unusual about the fact that Mr Jenkins baby-sits the two children where, indeed, one of them is his own and where they live in the one house and have access to common areas. In relation to the birth certificates, she conceded that this was unusual but also that the explanation given was plausible especially in the context of the domestic violence history with Tayla’s father. Ms Thompson noted the willingness of Mr Jenkins to allow both of the girls to call him “dad” but, again, she submitted that this had been explained and, though it may cause problems later, it makes it easier for them to deal with the situation at present.
Ms Thompson conceded that there was emotional support for Ms Glachan from Mr Jenkins but submitted that this was understandable because of her background with Mr Comerford. She referred to the evidence of Ms Purvis that the effects of domestic violence may last for some years. Ms Glachan’s evidence was that he kept driving past places where she lived and making nuisance phone calls. Ms Thompson submitted that this supported the decision to take out leases in Mr Jenkins’ name.
She submitted that there was no evidence that Ms Glachan and Mr Jenkins had been in a sexual relationship other than the one occasion at Kerrong Court.
Ms Thompson submitted that there was no evidence of companionship in a broader sense between the two of them for example by attending social functions. She contended that their relationship was mainly about security for Ms Glachan. She referred to the evidence of the school principal who was aware of Mr Jenkins but did not believe that he and Ms Glachan were members of a couple. She noted that he had been to the house on one occasion and his evidence supported the demarcation between the two ends of the house. She also referred to Ms Hagarty’s evidence that Ms Glachan was not in a relationship with Mr Jenkins and that she had even attempted to find dates for her.
In summary, Ms Thompson submitted that the requirements of sub-section 4(3) of the Act had not been met.

Consideration

Sub-section 4(3) of the Act requires that regard be had to all of the circumstances of the relationship between Ms Glachan and Mr Jenkins. In Re Secretary, Department of Family and Community Services and Bell [2000] AATA 252 at [24], it was stated that the Tribunal is:
to give regard to the specified criteria in a real sense, i.e. to ensure sufficient and adequate regard is given to all the specified criteria; and to take the criteria specified by the statute into account and to give weight to them as a fundamental element in the decision-making process.
Before dealing with the components of that provision, I make the following observations on some of the evidence. I accept Mr McQuinlan’s submissions about the evidence of Ms Glachan and Mr Jenkins. They have both demonstrated a willingness to make deliberately false statements about their relationship and this included entering false details on Tayla’s birth certificate. Mr Jenkins has also made false statements in Centrelink documentation. In an Assessment of Living Arrangements form completed by him on 5 March 2003, he said that he owned a vehicle but that he did not share the use of it. That is incorrect as Ms Glachan has liberal use of it. In that same form, he denied having nominated Ms Glachan as a beneficiary in his superannuation policy. That is also incorrect as indicated in the material provided by Suncorp on 15 August 2003. I do not accept Mr Jenkins’ explanation that he nominated her because she was pregnant with his child. Even if that were the reason, it was still a false response to state that he had not nominated Ms Glachan. Ms Glachan denied providing the Child Care Centre with Mr Jenkins’ details as Tayla’s father saying that information must have been obtained from Mr Jenkins when he registered Shai. However, the form, dated 19 April 2002, bears her signature and the enrolment form for Shai, signed by Mr Jenkins, is dated 21 November 2002 and, clearly, could not be the source of the information.
The evidence is that Ms Glachan and Mr Jenkins shared premises from August to December 1999 at Kerrong Court and, from 15 December 2001 until at least the final day of the hearing, at Ashwood Drive. The submission of Mr McQuinlan was that they also shared premises from at least 20 May 2000, when the overpayment period commenced, until Ms Glachan moved to Ashwood Drive. This included her tenancy at Dennis Road where she lived from December 1999 until September 2000 and then at Cedar Grove Road until she moved to Ashwood Drive.
Ms Glachan and Mr Jenkins said that Ms Glachan moved from Kerrong Court to Dennis Road in December 1999 and that Mr Jenkins remained there until the lease ended. In evidence was a document from the Residential Tenancies Authority which recorded a refund of Mr Jenkins’ rental bond to him in relation to Kerrong Court. This nominates the date the tenant left as being 31 December 1999. I am satisfied that both Ms Glachan and Mr Jenkins moved from Kerrong Court at or about the same time in December 1999.
For the next two years, Ms Glachan lived successively at Dennis Road and Cedar Grove Road and Mr Jenkins was said to have lived at his parents’ place until his house at Ashwood Road was completed in December 2001. However, during that time, he completed various documents in which he gave his address as being Dennis Road or Cedar Grove Road. These included Shai’s birth certificate, his superannuation records with Suncorp and the records of his employer, DKM Constructions. He said that he used those addresses because he was “there a lot”. I have noted Ms. Thompson's submission that Mr Jenkins was entitled to use those addresses because he was the legal tenant. Nevertheless, even after he was living in Ashwood Drive, he described, in an application for a loan from Suncorp, his previous residential address for one year as being Cedar Grove Road. This was on 10 June 2003 after he had been at Ashwood Drive for 18 months. I am satisfied that a logical explanation for providing this historical record of his previous address is that it was correct. The address of Mr Jenkins’ parents was used on Tayla’s birth certificate. This is where Mr Jenkins claimed to be living after moving out of Kerrong Court. However, that address was given for both Ms Glachan and Mr Jenkins and was clearly incorrect, at least in relation to Ms Glachan. No real explanation was provided by either Ms Glachan or Mr Jenkins for having different addresses on the two birth certificates.
The leases at Dennis Road and Cedar Grove Road and the telephone and electricity services there were taken out in Mr Jenkins’ name. Evidence was given that this was done to present as a family unit rather than as a single-parent, to make it more difficult for Mr Comerford to locate Ms Glachan and Tayla and to overcome Ms Glachan’s negative rental history. I accept that rental accommodation may be more readily obtainable for a family unit than a single person. I also accept Ms Glachan’s evidence about her relationship with Mr Comerford and its effect upon her. In doing so, I have noted the certificate of conviction of Mr Comerford and the domestic violence order that was taken out against him. I have also noted and accept the evidence of Ms Purvis about the effects on Ms Glachan of Mr Comerford’s conduct and the significant psychological attachment that she had with Mr Jenkins because of it. As for Ms Glachan’s rental history, she gave evidence that she was unable to obtain a refund of her rental bond for the mobile home at Stapleton because of damage done by Mr Comerford when he discovered that she had moved out. In evidence was a document from the Residential Tenancies Authority which confirms that the rental bond was assigned by her to the letting agent.
Mr Jenkins’ evidence was that he was a frequent visitor at both Dennis Road and Cedar Grove Road and he conceded that, from time to time, he stayed the night at Cedar Grove Road. His visitations to Dennis Road were confirmed by the neighbour, Ms Munn. However, her evidence was that he was not living there. She appeared to be a reliable witness and she gave her evidence in a cogent manner. Her observations were made over a long period of time and with visitations to Ms Glachan house. I accept her evidence that Mr Jenkins was not living at Dennis Road. There was no evidence from any neighbours at Cedar Grove Road and it may well be the case that, when Mr Jenkins nominated his residential address as being Cedar Grove Road, he was correctly identifying his place of residence at those times. However, there is no evidence before me of the living arrangements at those premises. Assessments of living arrangements at Kerrong Court and Ashwood Drive were undertaken by Centrelink but not in relation to Cedar Grove Road. In summary, I am satisfied that Mr Jenkins was not living at Dennis Road and, therefore, was not in a marriage-like relationship with Ms Glachan while she lived there. I am also unable to determine that a marriage-like relationship existed between them while Ms Glachan was living at Cedar Grove Road.
Consideration must now be given to the circumstances of Ms Glachan and Mr Jenkins at Ashwood Drive where they have been living since 15 December 2001.

financial aspects of the relationship

There is no joint ownership of real estate or other major assets by Ms Glachan and Mr Jenkins and they have no joint liabilities. Mr Jenkins is the sole owner of the Ashwood Drive house and the two vehicles they use. There is no evidence of any significant pooling of financial resources or of any legal obligations between them. A statement from the Residential Tenancies Authority advised that the weekly rent paid for the Cedar Grove Road house was $175. Ms Glachan was paying $150 per week at Ashwood Drive. Therefore, on their evidence that she lived at Cedar Grove Road only with her children, there was a financial advantage to her in living at Ashwood Drive from December 2001. I am satisfied that this was one of the factors in her decision to reside there. Throughout the period of the overpayment whilst they lived at Ashwood Drive, there was some sharing of day-to-day household expenses for electricity and telephone usage. However, while Ms Glachan was receiving payments, there was individual responsibility for other household expenses.
A dominant feature of the financial circumstances in this matter is the debt of some $8000 which Ms Glachan has accrued because of her continued residence at Ashwood Drive despite her inability to pay rent. Of course, this has occurred because of the cessation of parenting payments and the financial reliance that this state of affairs has brought about should not be relied on. However, allowing a debt of $8,000 to accumulate represents a significant level of forbearance by Mr Jenkins and reflects a willingness by him to provide financial support on a long term basis to Ms Glachan and both of her children.
A further financial aspect of their relationship was Mr Jenkins’ willingness to provide a motor vehicle for use, in part, by Ms Glachan who tended to understate the extent to which she utilized the vehicle. For example, she did not volunteer the information that she used it to travel to the Gold Coast each Friday night in relation to work until she was questioned about that.

the nature of the household

Apart from the time when Ms Deeble said she was living at Ashwood Drive, the nature of the household reflected the presence of a family comprising Ms Glachan, Mr Jenkins and the two girls. Their evidence was that they slept in bedrooms at opposite ends of the house. There is no evidence to the contrary and the evidence of Mr. Wallace supports, to some extent, that they occupied different parts of the house. Nevertheless, they ate meals together and often watched television together. The family nature of the association has been enhanced by Mr Jenkins’ willingness to allow both of the girls to call him “dad” and by the understanding of both of the girls that Mr Jenkins is their father. Ms Glachan said that he was a father figure to both of them. Certainly, he assumed a reasonably high level of responsibility for providing care and support to them as demonstrated by his preparedness to mind the children in the absence of Ms Glachan on various occasions such as on Friday evenings when she drives to the Gold Coast and when she attends meetings. He also takes both of them on various outings, for example, to visit his parents. This sense of a family unit was also demonstrated at Christmas in 2003 when, together, they visited the parents of Ms Glachan and Mr Jenkins. Similarly, it is reflected in the interest that Mr Jenkins has displayed in activities at the Woodhill State School. Mr Wallace gave evidence that Mr Jenkins carried out repairs at the school canteen and attended functions such as parent evenings. Of course, the only child who attends that school is Tayla and she is not Mr Jenkins’ daughter.
Mr Jenkins and Ms Glachan explained the entry of Mr Jenkins’ name as Tayla’s father on her birth certificate on the basis that this was preferable to being left blank or as not wanting to see Mr Comerford’ name there. While I accept that this might have played some role in the decision by Ms Glachan to ask him to do this and for Mr Jenkins to comply with that request, I am satisfied that this was not the sole basis for doing so. It reveals a willingness by her to accept a long-term association with Mr Jenkins and this was continued by the use of the name “Jenkins” on enrolment documentation at the child care centre and at school. In April 2004, Ms Glachan requested that the school record be changed to “Allen” and she said this was because Tayla had visited her grandmother in hospital and wanted to be called by that name. In her evidence at the SSAT, Ms Glachan gave that reason and also said that it was because Ms Douglas had been questioning her about why she had enrolled Tayla as “Jenkins”. I am satisfied that Ms Glachan’s willingness to have Mr Jenkins’ name on the birth certificate and as the official name in school records reinforces the appearance of the family unit and that its removal was, at least to some extent, motivated by concerns about Centrelink enquiries.

social aspects of the relationship

I am satisfied that there has been a social dimension, albeit of limited range, to the relationship of Ms Glachan and Mr Jenkins although there was inconsistency on that matter in their evidence. Mr Jenkins said that they did not have any such an arrangement away from the house but Ms Glachan said that they watched a movie or show together and sometimes took the girls to the beach and would go out occasionally together. As noted above, Mr. Wallace said that that they attended functions at the school together. There have also been inconsistencies in statements about holidaying together. In evidence, each of them denied that they had ever done so. In his Assessment of Living Arrangements form completed on 3 March 2003, Mr Jenkins denied that they went on holidays together. However, in the assessment which was completed on the same day by Ms Glachan, she said that she and Mr Jenkins only went on holidays if it was “with the kids”.
It has been noted above that Ms Glachan and Mr Jenkins have held themselves out as members of a couple when entering into leasing arrangements for accommodation. I have accepted that this was for reasons associated with Ms Glachan’s rental history and the need for anonymity because of Mr Comerford. However, this has also occurred on other occasions where those motivating factors had no role to play. Mr Jenkins nominated Ms Glachan as his “next of kin” and his “de facto”, and described himself as being “engaged” to her with his employer. He described her as his “girlfriend” with Suncorp. Also, in an information sheet attached to a tenancy agreement, completed on 19 March 1999 in relation to Kerrong Court, he described her as his de facto. In that document, he was required to provide the names of three people who could provide him with a reference. He included Ms Glachan’s mother and described her as his “de facto’s mother” and stated that he had known her for one-year. He also nominated Ms Glachan as a beneficiary in a superannuation policy although he explained that this was in order to make provision for his daughter. These are actions of Mr Jenkins rather than Ms Glachan; but they must be seen as a reflection of his perception of their relationship. In addition, Ms Glachan did nothing to correct what, in her evidence, she said was a misconception by staff at the Building Services Authority that she was “Mrs Jenkins”. Similarly, this was the case with a Building Inspection Report, completed on 19 February 2002, for the purposes of conducting repairs at Ashwood Drive where both Ms Glachan and Mr Jenkins are listed as the “clients” and as the “owners” of the premises.
Ms Hagerty gave evidence that Ms Glachan had described Mr Jenkins as her “ex”. Ms Glachan denied that she would use such a term. Nevertheless, she did use that term, in an Assessment of Living Arrangements, completed on 3 March 2003, to describe Mr Comerford. She is also recorded in a file note taken by a Centrelink officer on 11 November 2003 as using that term. Ms Hagerty was specific in her evidence and there is no reason to disbelieve her. Nevertheless, reference to Mr Jenkins as her “ex” provides little guidance as to her relationship with him except that it would suggest that they had not been friends only.
Evidence was given by Mr Wallace and by Ms Hagerty and, in their assessment, Ms Glachan and Mr Jenkins were not living in a marriage-like relationship. However, their evidence was based on a limited extent of observations of them especially in their home environment. Statements have also been provided by other friends of Ms Glachan although they were not called to give evidence. Catherine Barlow, in a statement dated 6 December 2004, said that she had no reason to doubt Ms Glachan but did not provide information of what the living arrangements were with Ms Glachan and Mr Jenkins. Donna Simpson also completed a statement, dated 7 June 2004, but, again, no information is provided by her about the relationship. Dr Bresselers, Ms Glachan’s treating doctor, provided a report on 18 May 2004, in which he stated that he had seen her since 16 June 2001 and that his records showed that she had been single during that time. It is not clear as to whether he means to indicate that she was not married or not partnered.

sexual relationship

Ms Glachan and Mr Jenkins are the parents of Shai and, clearly, have had a sexual relationship. Their evidence is that this occurred on one occasion only. In support of the absence of a continuing relationship between them, they have relied on the existence of Mr Jenkins’ relationship with Ms Deeble. All three gave evidence of Ms Deeble’s residence at Ashwood Drive from November 2003 until February 2004 and of their living arrangements during that time. Mr Jenkins and Ms Deeble gave evidence of a sexual relationship during that period and previously for some years. There may well have been such a relationship and Ms Deeble may well have stayed at Ashwood Drive for a time. However, I do not accept that the presence of Ms Deeble or a sexual relationship between her and Mr Jenkins precludes such a relationship between Ms Glachan and Mr Jenkins. This is because of the various inconsistencies that arose in the evidence about Ms Deeble.
In the period prior to November 2003, Mr Jenkins described Ms Deeble as his “only girlfriend” whom he would contact by telephone several times a week and see from time to time. Ms Deeble said that they were not really serious but had been seeing each other over a period of four years with a varying frequency. The statement made by Ms Deeble to Centrelink on 30 January 2004 declared that she had been his partner since 2000 and had lived with him as his partner since November 2003. The evidence of Ms Deeble was that, over the three months of her stay at Ashwood Drive, she spent only five weeks there and this included a break of three or four weeks over Christmas. She gave differing reasons for this. In her evidence she said that it was because of the remote location of the house at Ashwood Drive and in her statement of 2 June 2004 she said that it was because she “was starting to feel uncomfortable” with her “living arrangements”.
Ms Deeble was in employment when she moved to Ashwood Drive but this ceased whilst she was there. A file note completed by a Centrelink officer on 20 February 2004 records that she was making an inquiry about new start allowance. On that day, she advised that she was now separated from her partner and wanted her new start allowance claim assessed as a single person. This was not the first time that she had made reference to a claim for new start allowance. The Centrelink officers’ file note indicates that the matter was discussed on 30 January 2004 when Ms Deeble made her statement about the relationship with Mr Jenkins. It also records that she was told that Mr Jenkins’ income would be taken into account in calculating the amount to which she would be entitled. The file note also indicates that Ms Deeble left Ashwood Drive on 3 February 2004 and that this had been verified by a statement from her mother.
In the statement signed by Ms Deeble on 2 June 2004 after the interview with Ms. Douglas, she said that she would stay with her mother for two to three nights a week as she was starting to feel uncomfortable with the living arrangements at Ashwood Drive. She also said:
My mother would often make comments about the relationship I had with Sean over the last two years or so. My mother felt that Sean was using me and that there was more going on with Sean and Kristy’s relationship than meets the eye. She always said if Sean loved me he would be living with me. My mother did not want to know about that relationship because she didn’t like the way Sean favoured Kristy and her feelings over me. Now looking back on the situation I feel that I was used by Kristy and Sean to help cover up whatever they have going on.
In her evidence, Ms Deeble said that she had been distressed during the interview and that she had since changed her mind about whether or not she had been used by Ms Glachan and Mr Jenkins. Ms Douglas agreed, in her evidence, that Ms Deeble did become upset but that this was when she revealed that her mother had always thought that Mr Jenkins was using her. Mr. Douglas said that there had been no need to discontinue the interview and I accept her evidence in that regard and reject that of Ms Deeble. I also accept as correct the content of Ms Deeble’s statement that, looking back at the situation when she was at Ashwood Drive, she believed that she had been used to cover up something. There is no evidence of any ongoing relationship between Mr Jenkins and Ms Deeble since her departure on 3 February 2004 and I am satisfied that, regardless of what may have occurred between them, her presence was utilized by Ms Glachan in an attempt to demonstrate to Centrelink that she was not in a relationship with Mr Jenkins. I consider it unlikely that Ms Glachan and Mr Jenkins were not in a continuing sexual relationship. However, I make no finding in that regard because such a relationship is not necessarily material to finding that a marriage-like relationship existed between them. This is but one of the range of matters that needs to be considered.

the nature of commitment to each other

Ms Glachan has known Mr Jenkins for more than seven years and, for most of that time, she has looked to him for support of some kind and, in particular, in relation to the need for security because of Mr Comerford. I have noted the report by child and family therapist, Ms Purvis, who conducted three counselling sessions with Ms Glachan in March 2005 and formed the opinion that she had a significant psychological attachment to Mr Jenkins. Of course, this was one of the reasons given by Ms Glachan for living at Ashwood Drive. Nevertheless, her evidence was that she had lived without him at Dennis Rd and Cedar Grove Road for approximately two years and the anonymity which was provided by having the lease in his name had been sufficient whilst she lived there. There was no suggestion that, during that period, Mr Comerford had posed any actual threat to her and I do not accept that it was necessary for her to move in to the house occupied by Mr Jenkins solely for security reasons. I have noted above that there was a financial benefit in moving to Ashwood Drive but I am also satisfied that another factor was the commitment that Ms Glachan and Mr Jenkins have to each other and the emotional support that Ms Glachan receives through the attachment with Mr Jenkins as identified by Ms. Purvis. It is the case that Mr Jenkins is Shai’s father but, again on their evidence, this was not perceived by them as being sufficient for them to share premises at Dennis Rd or Cedar Grove Road.
At various times, Ms Glachan has indicated that she was desirous of leaving Ashwood Drive and gave evidence to that effect before the SSAT in May 2004. This might suggest that Ms Glachan did not consider that the situation with Mr Jenkins would continue indefinitely. When she was regranted parenting payments in January 2004, Yet, she was still residing there at the time of the hearing although she indicated that she would be leaving the premises on the following day. I am not in a position to know whether or not this move eventuated. In any event, she has remained there well beyond the end of the overpayment period on 2 July 2003 and the date of the second decision on 10 June 2004.
As noted above, Ms Glachan and Mr Jenkins have a social dimension to their relationship and I am satisfied that this involves the degree of companionship that they provide to each other. It was Ms Glachan’s evidence that she had daily contact with Mr Jenkins. She described him as her “support person” in court proceedings involving Mr Comerford and, in her evidence to the SSAT, she said that Mr Jenkins was present at the birth of Shai. She provided support and assistance to Mr Jenkins during the period when repairs were carried out on the house at Ashwood Drive and also provided assistance to him on aspects of the house at the building stage.

the overall relationship

Having regard to all of the factors in sub-section 4(3) of the Act, I am satisfied that Ms Glachan has been in a marriage-like relationship with Mr Jenkins during the period of her residence at Ashwood Drive. In addition to the financial and social aspects of their relationship, I place particular reliance on the nature of the family oriented household they have established and the nature of the commitment that they have to each other. Accordingly, this means that Ms Glachan was a member of a couple from 15 December 2001 until 2 July 2003 for the purposes of sub-section 4(2) of the Act.

Decision

Re Application Q2004/474

The Tribunal sets aside the decision of the Social Security Appeals Tribunal dated 31 May 2004, substitutes its decision that Kristy Glachan was a member of a couple for the purposes of sub-section 4(2) of the Social Security Act 1991 in the period from 15 December 2001 until 2 July 2003 and remits the matter to the applicant for calculation of any debt due to the Commonwealth.

Re Application Q2005/18

The Tribunal affirms the decision under review.

I certify that the 96 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed: Jeff Mills
Legal Research Officer

Date/s of Hearing  4 August 2005
Date of Decision  16 September 2005
For the Department                   Mr Rick McQuinlan, Departmental Advocate
Counsel for Ms Glachan           Ms Sarah Thomson
Solicitor for Ms Glachan           Welfare Rights Centre Inc

[2005] AATA 899

16 September 2005

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Benefits and Entitlements

Member of a Couple

Statutory Interpretation