Jarvis and Secretary, Department of Education, Employment and Workplace Relations

[2011] AATA 665

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 665

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3601

GENERAL ADMINISTRATIVE DIVISION		)
Re		SHANE JARVIS

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date27 September 2011

PlaceBrisbane

Decision The Tribunal affirms the decision under review, as varied by the Social Security Appeals Tribunal, and remits the matter to the respondent to calculate Mr Jarvis’s entitlements from 10 April 1995 until 18 May 2007.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – Benefits and entitlements – Newstart allowance, sickness allowance and disability support pension – Applicant and partner not living separately and apart on a permanent or indefinite basis – Applicant in de facto relationship – Applicant a member of a couple at relevant time – Decision under review affirmed

Social Security Act 1991 (Cth) s 4

REASONS FOR DECISION

27 September 2011 Mr R G Kenny, Senior Member    

BACKGROUND

1.      From 1991 until 2007, Shane Jarvis received various social security payments under the Social Security Act 1991 (Cth) (“the Act”). Those payments were made on the basis that he was not a member of a couple. On 18 May 2007, a Centrelink officer determined that Mr Jarvis had been a member of a couple since 8 February 1996, and that his social security payments should have been paid to him at the rate applicable to members of a couple rather than at the rate applicable to a single person. That decision was affirmed by an authorised review officer on 26 June 2007. On 23 July 2007, the Social Security Appeals Tribunal (“the SSAT”) varied the decision by substituting 10 April 1995 as the date from which Mr Jarvis should have been paid as a member of a couple. Mr Jarvis now seeks review of the decision to classify him as a member of a couple by the Administrative Appeals Tribunal (“the Tribunal”).

ISSUES AND LEGISLATION 

2. At issue for the Tribunal is whether or not Mr Jarvis has been properly assessed as being a member of a couple with Ms Elizabeth Short. Relevant to that determination is s 4(2) of the Act, which reads:

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

(a)       …; or

(aa)     …; or

(b)       all of the following conditions are met:

(i)the person has a relationship with another person, whether of the same sex or a different 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 de facto 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.

3. It is not disputed that Mr Jarvis meets the terms of s 4(2)(b)(ii), (iv) and (v) of the Act. The issue for determination is whether Mr Jarvis was in a relationship which was a de facto relationship under ss 4(2)(b)(i) and (iii) of the Act. That requires a consideration of his circumstances under s 4(3) and 4(3A) of the Act. The provisions read:

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, or in a de facto relationship with, 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 or a de facto relationship.

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

EVIDENCE

Ms Short

4.      Ms Short is currently serving a term of imprisonment on the basis of a conviction for Centrelink fraud offences. She pleaded guilty to charges against her and was summoned by the respondent to give evidence in this matter. She completed a statement on 12 August 2011, setting out the following information which she confirmed in her evidence.

5.      Ms Short lived in a de facto relationship with Mr Jarvis from 1996 until 2009. She met him through his sister in 1994. They kept company and commenced living together at Mr Jarvis’ home in Woolloongabba in early 1996. Mr Jarvis lived at the house with Mr and Mrs Taylor, who had raised him as their son. Ms Short and Mr Jarvis shared a bedroom at the Woolloongabba house although Mr Jarvis had another room which he sometimes slept in, for example, when the children slept in Ms Short’s room. They had a continuing sexual relationship at the Woolloongabba house.

6.      Ms Short has three children: D, born in 1996; J, born in 1999; and B, born in 2006. Mr Jarvis was the father of each child and he attended at the birth of D,  participated in the birth in that he cut the umbilical cord and was recorded in hospital records as her partner. Each of the children was semi-planned in the sense that she and Mr Jarvis discussed having children. Mr Jarvis’ name was not entered on the birth certificates of the children and Ms Short gave incorrect information to Centrelink about the paternity of the children and about her relationship with Mr Jarvis. She did so to enable her to continue to receive her social security payments at the single rate. Ms Short was aware that Mr Jarvis had the names of the children and her own first name tattooed on his chest. Mr Jarvis knew that Ms Short was receiving payments at the single rate because they had discussed the matter. 

7.      At the Woolloongabba house Ms Short took care of Mrs Taylor, who was in poor health. Mrs Taylor died in 2001 and Mr Taylor died in 2004. Under the terms of Mr Taylor’s will, the Woolloongabba house was bequeathed to Ms Short, although Mr Jarvis had expected that he would inherit the house. Ms Short believed that Mr Taylor left the house to her because of a falling out between him and Mr Jarvis over theft by Mr Jarvis of a sum of money from him. In 2007, Ms Short sold the Woolloongabba house and used the proceeds to purchase a house at Blackbutt. This was registered in Mr Jarvis’ name in order to camouflage Ms Short’s involvement in the arrangement and because she and Mr Jarvis were concerned that she may lose the house as a result of her prosecution if the house were registered in her name. Mr Jarvis promised her that he would transfer the house back to her at some stage. The house is still registered to Mr Jarvis. He borrowed $100,000 against the Blackbutt house and used the loan monies to purchase a car for himself for $30,000 and a car for Ms Short for $10,000. Ms Short remained living in Brisbane after the Blackbutt house was purchased, but she and the children frequently visited Mr Jarvis at Blackbutt and Ms Short continued to believe they were a couple at that time. This came to an end after serious assaults by Mr Jarvis on Ms Short and one of their children in 2009. 

8.      The children referred to Mr Jarvis as their father and considered Mr and Mrs Taylor to be their grandparents. Mr and Mrs Taylor, Ms Short’s own family and Mr Jarvis’s sister all considered that she and Mr Jarvis and the children were a family unit. She and Mr Jarvis socialised together and went to gatherings with friends as a couple. Their friends saw them as a couple and, with their children, as a family unit. They went shopping together and ate their meals together. They also holidayed together and this included trips to Bali in 2004, 2005 and 2006, when they travelled together with the children as a family. They shared a bedroom on some of those occasions and Ms Short paid for some of the holidays for Mr Jarvis and the children.

9.      Ms Short gave false evidence to the SSAT, denying that she was a member of a couple with Mr Jarvis. She did this because he had a history of violence towards her and she felt threatened and intimidated by him. She was also concerned that she may have been prosecuted for the false information she had provided to Centrelink over the years. Ms Short referred the Tribunal to a domestic violence order dated 8 November 2000 in which she and Mr Jarvis are described as being in a de facto relationship. Ms Short confirmed that this accurately described their arrangement. 

10.     Ms Short referred to cards and letters exchanged by her and Mr Jarvis in which they expressed their love for each other. She also identified a portrait which depicts her, Mr Jarvis and the three children in a family setting taken shortly after B’s birth.

11.     Ms Short and Mr Jarvis were not married although they were engaged to marry. The engagement ring was given by Mrs Taylor to Mr Jarvis. They planned to get married when “all the Centrelink stuff had finished”. Following a burglary at the Woolloongabba house, Ms Short received insurance monies with which to replace stolen jewellery, including her engagement ring. Mr Jarvis accompanied her to River Gem Manufacturing Jewellers to select a replacement ring. 

12.     In her oral evidence, Ms Short said that D and J had always referred to Mr Jarvis as “dad” and Mr and Mrs Taylor as “pop” and “nanna”, respectively. She also said that she and Mr Jarvis commenced living together in a sexual relationship at the Woolloongabba house in 1994. She confirmed that Mr Jarvis was present at B’s birth and that they both provided the information in the hospital records about his status as her partner. She also confirmed that they had exchanged cards expressing their love for each other and recalled that in one of these cards she had enclosed a cash sum of $150, the receipt of which Mr Jarvis had acknowledged. Another was dated 7 July 2001 and Ms Short said that the date had been entered by Mr Jarvis. Ms Short said that both she and Mr Jarvis had agreed to purchase the Blackbutt house in his name and that he promised that he would “never take the house from her”. She described their lives as comprising a family who socialised together as a couple and were seen as such by friends and Mr and Mrs Taylor. Ms Short agreed that she had been untruthful to Centrelink and in her evidence to the SSAT, and said that she and Mr Jarvis had discussed what they would say to the SSAT.

Mr Jarvis

13.     Mr Jarvis gave the following evidence.

14.     Mr Jarvis met Ms Short in 1994. She moved into the Woolloongabba house in 1994 or 1995 as a friend of his sister and for the purpose of providing care for Mrs Taylor, who was in poor health. He and Ms Short had separate bedrooms at the Woolloongabba house. He had correctly advised Centrelink over the years that she was living there as a boarder, tenant or friend and not as his partner. He denied that they had been engaged to marry, that he gave Ms Short an engagement ring or that any ring came from Mrs Taylor. Mr Jarvis agreed that in a domestic violence order taken out by Ms Short in 2000 he was described as Ms Short’s “spouse”, but said that he had not been aware of what the word meant. He agreed that he accompanied Ms Short to the River Gem Manufacturing Jewellers, where a diamond ring, valued at $3000, was purchased. He said that he did so because the ring had been stolen along with some of his things from the Woolloongabba house, that they were covered by insurance and that his attendance at the jewellers was to purchase replacements with the insurance monies. 

15.     Mr Jarvis conceded that he had sexual intercourse with Ms Short on a few occasions but learned that he was the father of Ms Short’s three children only in late 2010, when he was advised by the Child Support Agency that he was liable for their child support. He agreed that he went to the hospital when B was born but only to assist Ms Short by dropping her off there and by taking some clothing to her a day or so later. He stated that he was not present at the birth of any of the children. He denied ever advising the hospital that he was Ms Short’s partner and he was nominated as next of kin in hospital records only because they were living in the same house. The children did not call him “dad” but by his first name, “Shane”. They called Mr and Mrs Taylor “pop” and “nanna” but this was only out of respect for them and not because they were perceived to be their grandparents.

16.     Mr Jarvis agreed that he had been charged with assault of Ms Short in 2009 and said that, apart from some abusive emails, he has had no communication with her since. He agreed that he had the names of the three children tattooed on his chest and said that this was done in January 2011 after he had learned he was their father. He was unable to explain how Ms Short became aware of those tattoos if he had not seen her after 2009. He also said that the children and Ms Short had visited him at the Blackbutt house, particularly in the school holidays. He was not aware that Ms Short had his name tattooed on her chest but agreed that he had a tattoo of Ms Short’s first name, Elizabeth, on his chest. 

17.     Mr Jarvis agreed that he had stolen money from Mr Taylor and had apologised to him for doing so. When Ms Short sold the Woolloongabba house, she allocated the proceeds to the purchase of the Blackbutt house in his name in 2007. He believed that she did this because she had always realised she had not been entitled to inherit the house from Mr Taylor and felt guilty about inheriting it. He denied that he had promised to transfer the house to her at some stage.

18.     He agreed that they applied for a loan of $85,000 together as this was the only way they could have established a cleaning business. They did not proceed with the loan. He agreed that he mortgaged the Blackbutt house for $100,000 and purchased a Subaru Forrester for himself and a Toyota RAV4 for Ms Short. 

19.     Mr Jarvis agreed that he and the children travelled to Bali together but not as a family. He said that both he and Ms Short spent money on those trips but said that he had a female friend there and did not stay with Ms Short.

20.     Mr Jarvis denied an involvement with the cards which were found in the Woolloongabba house and said that they had been located by the Australian Federal Police in Ms Short’s belongings. He said that he took part in the portrait with Ms Short and the children because he was asked to do so.

Other evidence

21.     In evidence were various documents completed by Mr Jarvis since 1995 where he advised Centrelink that he was not living in a de facto relationship and that Ms Short was a boarder or tenant at the Woolloongabba house. These included statements, living arrangements forms and claim forms for various benefits including newstart allowance, sickness allowance or disability support pension on 2 November 1995, 16 November 1995, 8 April 1997, 28 August 1997 and 1 May 2001. Following a Centrelink investigation in 2007, Mr Jarvis advised Centrelink officers that he was not living with Ms Short, that she was a family friend and that he was not the father of her children.

22.     In evidence was a copy of a domestic violence order (DVO) Information Sheet completed after an application was made by Ms Short against Mr Jarvis in November 2000. Therein, Ms Short is described as an “aggrieved spouse” and Mr Jarvis as the “respondent spouse”; Ms Short described them as being in a de facto relationship; and Mr Jarvis is described as the father of a child of their relationship. 

23.     A search of the Woolloongabba house was conducted on 12 April 2007 by Centrelink officers and members of the Australian Federal Police. In evidence was a record of items seized. These included travel itineraries in the names of Mr Jarvis and Ms Short; travel insurance documents dated 14 June 2006 in the names of Mr Jarvis and Ms Short and the three children; receipts for jewellery, including a diamond ring valued at $3000, from River Gem Manufacturing Jewellers in both names dated 18 July 2006; receipts for various household items in both names including an invoice from Pfeffers Betta Electrical on 14 July 2001 for a washing machine; greeting cards where Ms Short identified herself as Mr Jarvis’ fiancée; a certificate of Medibank Private health cover, dated 30 December 2006, for Mr Jarvis and Ms Short and the three children; a certificate of insurance from Suncorp for Ms Short’s Suzuki Vitara with Mr Jarvis listed as an additional driver and Mr Jarvis’ Holden Rodeo with Ms Short listed as an additional driver; Mater Hospital records of birth of J where Mr Jarvis is listed as next of kin; Mater Hospital ante-natal clinic notes in 2005 where Mr Jarvis is nominated as the “father” and as Ms Short’s “partner”; Mater Hospital records for Ms Short’s admission on 24 February 2006 showing Mr Jarvis as next of kin; an invoice dated 12 March 2007 to Ms Short and Mr Jarvis from Get Set & Go for $524.70 for a birthday party; a quote for a swimming pool from Pool World, dated 8 September 2004, to “Shane and Liz Short”; extracts from Mr Jarvis’ diary with an entry, dated 11 March 2007, referring to times for Mr Jarvis to collect J and D from football, and 25 March 2007, referring to Mr Jarvis being a football linesman that day; a note, dated 8 January 1997, from F and F Edwards to Mr Jarvis and Ms Short accepting an invitation to D’s birthday party.

24.     The travel documents noted above include a travel insurance certificate from Cover-More Travel Insurance for both Ms Short and Mr Jarvis from 11 September to 4 October 2006 as well as a flight itinerary from Garuda Airlines showing travel for Mr Jarvis, Ms Short and three children for 11 September 2006 and 3 October 2006. Centrelink also obtained documents, dated 10 November 2006 and 7 December 2006, from Garuda Airlines which advised that Mr Jarvis and Ms Short travelled to Indonesia on 4 October 2004, 2 September 2005, 26 December 2005 and 11 September 2006 and that, for the flights, they checked in together and sat together on the plane with the children. Documents requested by Centrelink from Creative Holidays advised that Ms Short and Mr Jarvis booked holidays through Flight Centre and attached confirmation that from 26 December 2005 they had booked one room for 20.5 nights for Ms Short and the children and one room for Mr Jarvis.  An itinerary issued by Flight Centre on 24 April 2006 in relation to the Indonesia trip from 11 September 2006 included reference to a family suite booking for 20.5 nights.

25.     Centrelink obtained information from the Department of Immigration and Multicultural Affairs (DIMA) concerning Mr Jarvis and Ms Short. DIMA records confirm they had identical arrival and departure dates for flights in 2004, 2005, 2005/6 and 2006. They also confirm passport applications for Mr Jarvis, Ms Short and two of the children: D in July 2004 and B in April 2006. 

26.     A Department of Transport record, dated 9 October 2006, reveals that a Suzuki Grand Vitara was registered to Ms Short and her address was the Woolloongabba house as at 21 March 1995.

27.     A summary of Ms Short’s consumer credit position was completed by Baycorp Advantage on 10 October 2006. The first entry related to Ms Short as at 13 March 1995 and records her address at that time as the Woolloongabba house. It records a loan enquiry on 2 February 2005 for $85,000 with GE Capital Finance Australia. Documents from GE Capital Finance Australia record Ms Short’s driver licence detail including that it was issued on 29 July 1994 with her address as the Woolloongabba house. On 30 October 2006, GE Capital Finance Australia advised Centrelink that they had no record of Mr Jarvis but qualified that by stating that if a loan application had been an enquiry only, and not a formal application, no record would have been kept. 

28.     In evidence was an application by Ms Short and Mr Jarvis for a loan from Better Mortgage Management where Ms Short described Mr Jarvis as a “friend/boarder”  for $85,000, for personal use. Both completed loan applications dated 1 February 2005.

29.     A Centrelink surveillance record, dated 19 November 2001, showed Mr Jarvis collecting children from school and assisting Ms Short with taking shopping to her car.

30.     A statement from the Australian Business Register for December 2004 shows that on 9 December 2004 the business name Cupid Cleaning Services was registered to Mr Jarvis and Ms Short.

SUBMISSIONS

31.     Mr Jarvis submitted that he and Ms Short lived separate lives and that they should not be treated as members of a couple. For the respondent, Mr McQuinlan submitted that no regard should be had to the evidence of Mr Jarvis and that the evidence of Ms Short, as corroborated by documentary material, was sufficient to demonstrate that Mr Jarvis and Ms Short lived in a marriage-like relationship from 1995 or 1996 until Centrelink’s decision was made. He also submitted that, as no calculation had yet been made in relation to any overpayment of social security payments that matter should be remitted to the respondent.

CONSIDERATION  

32.     Mr McQuinlan submitted that Ms Short should be accepted as a witness of truth and her evidence preferred to that of Mr Jarvis where their evidence was in conflict. This was despite her admitted untruthfulness in the past when dealing with Centrelink and when giving evidence to the SSAT. The likelihood of that preference being given is enhanced if Mr Jarvis’ oral evidence can be characterised as inconsistent on the basis of evidence other than that of Ms Short. In this matter, Mr Jarvis’ evidence about his relationship with Ms Short and her children is inconsistent in material particulars with the documentary evidence set out above. The inconsistencies include:

·     hospital references to Mr Jarvis being the “father”, as Ms Short’s “partner” and as her next of kin;

·     the reference to Mr Jarvis as Ms Short’s “spouse” in the DVO Information Sheet;

·     the joint references to Ms Short and Mr Jarvis in various documents such as a certificate of Medibank Private health insurance cover, receipts for household items such as a washing machine, a quote for a swimming pool, an invoice for the cost of a birthday party and a note from F and F Edwards accepting an invitation to D’s birthday party;

·     Mr Jarvis’ involvement in purchasing jewellery from River Gem Manufacturing Jewellers, in both his own and Ms Short’s names;

·     greeting cards expressing their feelings for each other;

·     certificates of insurance from Suncorp for Ms Short’s Suzuki Grand Vitara and Mr Jarvis’ Holden Rodeo where each is listed as an additional driver for the other’s vehicle;

·     extracts from Mr Jarvis’ diary with an entry, dated 11 March 2007, referring to times for Mr Jarvis to collect J and D from football and 25 March 2007 referring to Mr Jarvis being a football linesman that day;

·     a joint application for a loan from Better Mortgage Management;

·     a Centrelink surveillance record showing Mr Jarvis collecting children from school and assisting Ms Short with shopping;

·     a statement from the Australian Business Register for December 2004 advising that the business name Cupid Cleaning Services was registered to Mr Jarvis and Ms Short;

·     travel arrangement details provided by Cover-More Travel Insurance, Garuda Airlines, Creative Holidays, Flight Centre and DIMA.

33.     Those inconsistencies leave me satisfied that Mr Jarvis is not a reliable witness. That is not to say that Ms Short’s evidence was entirely consistent, especially in relation to her move to the Woolloongabba house. In her statement, she wrote that she became an occupant of the Woolloongabba house in 1996. However, the records from the Queensland Department of Transport and Baycorp Advantage gave her address as the Woolloongabba house as at March 1995. In addition, documents from GE Capital Finance Australia record Ms Short’s driver licence detail as showing the Woolloongabba house as her address when the licence was issued in 1994. Her presence at the Woolloongabba house in 1994 or 1995 is consistent with the birth of D in January 1996. Indeed, the SSAT determined that the cohabitation between Mr Jarvis and Ms Short began from the approximate date of D’s conception, ie 10 April 1995. Nonetheless, because of the extent of inconsistency in Mr Jarvis’ evidence with the other evidence, I am satisfied that he is not a witness of truth and that Ms Short’s evidence should be preferred where it differs from that of Mr Jarvis.

34. In accordance with s 4(2) of the Act, Mr Jarvis and Ms Short will have been members of a couple if all five of the conditions in s 4(2)(b) of the Act are met. Of these, the only condition in dispute is whether their relationship was a de facto relationship. In determining whether or not Mr Jarvis and Ms Short have been living separately and apart under s 4(3A), all of the circumstances of their relationship must be considered. These include the matters referred to in s 4(3) of the Act.

35.     In relation to the financial aspects of the relationship[1], I am satisfied that Mr Jarvis and Ms Short had significant interaction in financial matters. There is evidence of joint applications for loans and, even if the loans were not realised, the fact of making the applications indicates willingness by each of them to accept a degree of financial responsibility for the other. There is evidence of Mr Jarvis purchasing a car for Ms Short and, although they did not jointly own real property, Ms Short used the proceeds of the sale of the Woolloongabba house to enable Mr Jarvis to gain ownership of the Blackbutt house. They purchased household items, such as a washing machine, together and shared finances, as indicated by Ms Short sending $150 to him in a letter with an accompanying card. There is also evidence that Mr Jarvis and Ms Short intended to operate a cleaning business together.

[1] See s 4(3)(a) of the Act.

36.     I am satisfied that Mr Jarvis is the father of all three of Ms Short’s children. On Ms Short’s evidence, the nature of the household[2] was characterised by joint responsibility for providing care for and support of the children. Surveillance records and Mr Jarvis’ diary entries show that he was involved in the care of the children and in their sporting activities. Mr Jarvis and Ms Short lived together throughout the relevant period and, though there was an incident in 2000 which resulted in a DVO against Mr Jarvis, they returned to their family life in subsequent years as demonstrated by subsequent birth of B and frequent holidays in Bali as a family.

[2] See s 4(3)(b) of the Act.

37.     In relation to the social aspects of the relationship[3], Ms Short’s evidence was that she and Mr Jarvis socialised as a family unit and that her family, as well as Mr and Mrs Taylor, saw them as such. The letter accepting an invitation to attend a birthday party for D is couched in terms that Mr Jarvis and Ms Short were seen as a family unit. Hospital records and the police DVO Information Sheet indicate that they held themselves out as a couple. The family photograph depicts all members of the family, including Mr Jarvis, as appearing to be in happy mood and I do not accept Mr Jarvis’ evidence that he participated in the portrait only because he was asked. The family engaged in holidays together when they travelled to Bali on several occasions from 2004 to 2006. Mr Taylor’s decision to bequeath his house to Ms Short also demonstrates his acceptance of her as a member of his own family.

[3] See s 4(3)(c) of the Act.

38.     I am satisfied that Mr Jarvis and Ms Short were in a sexual relationship throughout the relevant period.[4]

[4] See s 4(3)(d) of the Act.

39.     There was clearly a commitment by Mr Jarvis and Ms Short to each other[5] as they continued to live together from around 1995 until the Centrelink decision was made in 2007. Indeed, this continued until an apparent assault by Mr Jarvis on Ms Short in 2009. That level of commitment is also demonstrated in Ms Short’s willingness to use the proceeds from the sale of the Woolloongabba house to enable Mr Jarvis to purchase the Blackbutt house. In all probability, an ulterior motive was involved, as declared by Ms Short. However, she was prepared to trust Mr Jarvis with that ownership and not to act in a way adverse to her interests. As at the date of the Centrelink decision in 2007, there was no evidence to suggest that they did not intend for the relationship to continue and, as noted, it did until 2009 when Mr Jarvis assaulted Ms Short. Their willingness to holiday together on several occasions also points to a high degree of companionship between them.

[5] See s 4(3)(e) of the Act.

40.     I accept Ms Short’s evidence that she accepted her relationship with Mr Jarvis as a marriage-like relationship. I do not accept Mr Jarvis’ denial that he was aware of the meaning of a “spouse” as used in the DVO Information Sheet. I also accept Ms Short’s evidence that Mr Jarvis had formally proposed marriage to her and that he gave her an engagement ring which was ultimately stolen but replaced using money from an insurance claim.

41. On the evidence before me, in relation to all of the factors detailed in s 4(3) of the Act, I am satisfied that Mr Jarvis and Ms Short were not living separately and apart on a permanent or indefinite basis from the date nominated by the SSAT, on the approximate date of D’s conception ie 10 April 1995. It follows that Mr Jarvis and Ms Short were members of a couple for the purposes of s 4(2) of the Act and that his rate of payment of his social security payments during the relevant period should be calculated on that basis.

DECISION

42.     The Tribunal affirms the decision under review, as varied by the SSAT, and remits the matter to the respondent to calculate Mr Jarvis’s entitlements from 10 April 1995 until 18 May 2007.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

Signed: ........................[Sgd]..........................................
              Danielle Armstrong, Research Associate

Date/s of Hearing  5 September 2011
Date of Decision  27 September 2011
The applicant was self-represented
Solicitor for the Respondent     Rick McQuinlan, departmental advocate