GAP-AAI and GAP-AAK (Guidance and Appeals Panel)
[2025] ARTA 2220
•21 October 2025
GAP-AAI and GAP-AAK (Guidance and Appeals Panel) [2025] ARTA 2220 (21 October 2025)
GUIDANCE AND APPEALS PANEL
Applicants:GAP-AAI and GAP-AAJ
Respondent: Child Support Registrar
Other Party: GAP-AAK
Tribunal Number: 2024/AC028256
GAP Reference Number: 2024-001-063
Tribunal:SM T Hamilton-Noy
Place: Melbourne
Date:21 October 2025
Decision:The Tribunal affirms the decision to accept the Other Party’s application for a child support assessment under section 25A of the Child Support (Assessment) Act 1989.
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988(Cth).
Catchwords
Child support assessment – application for third party child support assessment – whether parent indicated they did not consent to the person caring for the child – whether there has been extreme family breakdown
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Child Support (Assessment) Act 1989 (Cth)Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Shi v Migration Agents Registration Authority [2008] HCA 31
Statement of Reasons
On 18 November 2024, the Tribunal at first review in the Administrative Review Tribunal’s child support jurisdiction, affirmed a decision to accept AAK’s application for registration of a third party child support assessment under section 25A of the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act).
On 24 December 2024, AAI and AAJ (the Applicants) made applications to refer that decision to the Guidance and Appeals Panel (GAP) for review.
On 24 February 2025, the President of the Tribunal referred that decision to the GAP in accordance with subsection 128(1) of the Administrative Review Tribunal Act 2024 (Cth), as he was satisfied that the decision contained an error of fact which materially affected the Tribunal’s decision.
A video hearing was conducted with the parties by Microsoft Teams on 4 September 2025. The Applicants and Other Party were self-represented and attended by video and gave evidence on affirmation. A representative of the Respondent also appeared by video. The Tribunal had in evidence before it a Joint Hearing Bundle (256 pages) which had been provided to all of the parties to the review.
Decision under Review
The Applicants AAI and AAJ are the parents of two children and AAK is an extended family member. On 14 September 2023, AAK made an application to Services Australia – Child Support (Child Support) to register a child support assessment for one of the children (the Child).
On 26 October 2023, a delegate of Child Support made a decision to accept the application for a third party child support assessment for the Child from 14 September 2023.
AAI objected to the decision on 14 March 2024. On 17 June 2024, an objections officer of Child Support disallowed the objection.
On 12 July 2024, the Applicants sought a review of the decision by the then-Administrative Appeals Tribunal (the AAT).
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 were taken to be an application for review to the Tribunal. The Transitional Act gave the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The Tribunal at first review, on 18 November 2024, affirmed the decision to accept the application for registration of a child support assessment. The Tribunal found that AAK was providing sole care to the Child from 14 July 2023 to 5 November 2023. The Tribunal found that neither parent had indicated they did not consent to AAK caring for the Child and, because of this, it was unnecessary to go on to consider whether there had been an extreme family breakdown, as AAK otherwise met the definition to be an eligible carer in relation to the Child for the purposes of the application for registration of a child support assessment.
The relevant law
Part 4 of the Assessment Act contains provisions to enable applications to be made to the Registrar for an administrative assessment of child support.
Section 25A of the Assessment Act allows for a non-parent carer of a child to apply for an administrative assessment of child support in the following circumstances:
A person who is not a parent of a child (the applicant) may apply to the Registrar under this section for administrative assessment of child support for the child if:
(a) the applicant is an eligible carer of the child; and
(b) one of the following also applies:
(i) the applicant applies for both parents to be assessed in respect of the costs of the child;
(ii) if one parent of the child is neither a resident of Australia nor a resident of a reciprocating jurisdiction--the applicant applies for the other parent to be assessed in respect of the costs of the child;
(iii) if the Registrar is satisfied that there are special circumstances--the applicant applies for the other parent to be assessed in respect of the costs of the child;
(iv) if one parent of the child is dead--the applicant applies for the other parent to be assessed in respect of the costs of the child; and
(c) the applicant is not living with either parent as the partner of that parent on a genuine domestic basis (whether or not legally married to that parent); and
(d) the applicant complies with any applicable requirements of section 26 (dealing with joint care situations) and section 26A (dealing with children cared for under child welfare laws); and
(e) if a parent of the child who is to be assessed in respect of the costs of the child is not a resident of Australia on the day on which the application is made--the application meets the requirements of sections 29A and 29B.
Paragraph 25A(a) of the Assessment Act requires that an individual is an “eligible carer” of a child. This term is defined at section 7B of the Assessment Act as follows:
(1) In this Act, eligible carer, in relation to a child, means a person who has at least shared care of the child.
(2) Despite subsection (1), if:
(a) a person cares for a child; and
(b) the person is neither a parent nor a legal guardian of the child; and
(c) a parent or legal guardian of the child has indicated that he or she does not consent to the person caring for the child;
then the person is not an eligible carer in relation to the child unless it would be unreasonable in the circumstances for a parent or legal guardian of the child to care for the child.
(3) For the purposes of subsection (2), it is unreasonable for a parent or legal guardian to care for a child if:
(a) the Registrar is satisfied that there has been extreme family breakdown; or
(b) the Registrar is satisfied that there is a serious risk to the child's physical or mental wellbeing from violence or sexual abuse in the home of the parent or legal guardian concerned.
The term “extreme family breakdown” is not defined in the Assessment Act. The Child Support Guide at Point 1.1.E.10 provides the following commentary, to guide decision makers around the intended scope of this phrase
Extreme family breakdown
The Registrar will be satisfied that there has been an extreme family breakdown if:
· the child has never lived with the parent
· there has been a substantial period since the parent has provided care for the child, or
· other circumstances indicate extreme family breakdown.
However, the Registrar is unlikely to be satisfied that there has been an extreme family breakdown if the parent has had frequent and regular contact with the child over a substantial part of the period when another person provided care for the child.
The Registrar may seek evidence of extreme family breakdown.
The Tribunal is not bound to follow the above policy, but will do so unless there are cogent reasons to depart from the policy (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577).
Evidence and findings
It was not disputed by any of the parties that, at the time AAK made an application to Child Support on 14 September 2023, the Child was residing with AAK in AAK’s home and was in AAK’s 100% care. It was also not disputed that the Child remained living with AAK for several months following the application to Child Support. “Shared care” is defined at subsection 5(3) of the Assessment Act to be at least 35% care but not more than 65% care. The Tribunal found on the agreed-upon evidence before it that, at the time the application was made to Child Support, AAK had at least shared care of the Child within the meaning of subsection 5(3) of the Assessment Act. AAK met the requirements in subsection 7B(1) of the Assessment Act.
At the date of the application, AAK was caring for the Child and was neither a parent or legal guardian of the child.
The Tribunal at first review found that neither of the Applicants had indicated they did not consent to AAK caring for the Child. The Tribunal had regard to the documents provided by Child Support and noted from these documents that AAJ had contacted Child Support on 26 October 2023 and the records of the contact reflect that he had stated “they don’t agree to pay when they did not consent for the child to stay with someone else”. The documents further reflect that AAI contacted Child Support on 7 June 2024 and stated that “she didn’t consent to [the Added Party] having care of [the Child], he could have lived with the arrangements, it is just that [the Child] didn’t like it”.
Both parents had therefore, at different points in time, indicated that they did not consent to AAK caring for the Child. The Tribunal noted that AAI’s contact – and indication that she did not consent to the care arrangements for the Child – occurred some time after the application for child support had been made. AAJ’s contact with Child Support had, however, occurred on 26 October 2023, the same date that the original decision was made in this matter.
The Tribunal found from this that, at the time the original decision was made, there was information available to Child Support that “a parent” had indicated that he or she did not consent to the person caring for the child. The Tribunal found that the requirements set out in paragraph 25A(c) of the Assessment Act were established at the time a decision was made as to whether AAK’s application for a child support assessment should have been accepted by Child Support.
As AAK was caring for the Child, was neither a parent nor a legal guardian of the Child and a parent had indicated they didn’t consent to AAK caring for the child, subsection 7B(2) of the Assessment Act provides that AAK can only be considered an eligible carer of the Child if the Tribunal is satisfied that it would have been “unreasonable in the circumstances for a parent or legal guardian of the child to care for the child”.
There was no suggestion in the evidence before the Tribunal that there was a serious risk to the Child’s physical or mental well-being from violence or sexual abuse in the home of the Applicants, pursuant to paragraph 7B(3)(b) of the Assessment Act, and the Tribunal finds accordingly.
The issue for the Tribunal, therefore, is whether it was unreasonable for the Applicants to care for the Child because there had been an extreme family breakdown within the meaning of paragraph 7B(3)(a) of the Assessment Act.
The evidence given by the Applicants at the Tribunal hearing was consistent with the details they had provided the Tribunal in written submissions. It was also consistent with records of contact between the Applicants and Child Support, contained in the documents provided to the Tribunal.
The circumstances in which the Child left the family home, as described by the Applicants, were not disputed by the Added Party or the Respondent. The Tribunal heard from the Applicants in detail at the hearing about the family’s circumstances in the relevant period and found the Applicants gave their evidence in a frank and credible manner.
Before considering the evidence before it, the Tribunal notes that the objections officer referred to an “Unreasonable to Live at Home” (UTLAH) assessment that had been undertaken by Services Australia (Centrelink) on 10 October 2023 and had been provided to Child Support by Centrelink on 16 October 2023. The objections officer appeared to place weight on the existence of the UTLAH assessment and various entries in the Child Support documents indicate that Child Support staff considered themselves bound by the assessment and “not authorised to overturn” the assessment, and that the assessment was, in and of itself, evidence of an extreme family breakdown. The UTLAH assessment was not made available to the Tribunal or the parties as part of the present review and there has been no opportunity for the parties to consider and respond to any stated reasons for the assessment having been made. The Respondent’s representative acknowledged at the hearing that it had not been provided for the purposes of the review. As the contents of the assessment were not available to the Tribunal or the parties, the Tribunal did not place any weight on the UTLAH assessment. Nor did the Tribunal draw any inferences from the assessment having been made, in reaching its conclusions in this matter, given its inability to interrogate the reasons for the making of the assessment.
The evidence before the Tribunal establishes that, prior to 2021, there were concerns by the Applicants about the Child’s behaviour, which were described by the Applicants as uncooperative and defiant behaviour and heightened emotions. The Tribunal accepted that the Child and the Applicants had attended a paediatrician, occupational therapist and kinesiologist to have the Child assessed and determine what support could be provided. In addition, they had the Child participate in counselling with a Mental health GP, and consulted with the Child’s teachers, school counsellors, wellbeing staff and school principal for guidance and support. The Tribunal accepted the submissions of the Applicants that, following the various conversations and investigations, the Applicants were told they had a “wilful” child and that there was nothing medically wrong with the Child.
The Tribunal accepted that the Child’s behaviour became progressively worse during 2021 and 2022. The Tribunal accepted that, after further escalation in behaviour, a recommendation was made by the Child’s school that the Child participate in a support program and was accommodated in another home three to four nights per week, in addition to participating in individual and family counselling, one-on-one support, development and coaching. This was described by AAI during the hearing as having involved the Child staying in various hostels, and participating in counselling and anger management. The Tribunal accepted that the Child’s participation in this program commenced in October 2022 but that the arrangement had broken down by February 2023.
The Tribunal accepted that the Applicants, the Child and the Child’s sibling went overseas on holiday for 2.5 weeks in April 2023, and that the Child displayed argumentative, sullen and uncooperative behaviour during the holiday.
The Tribunal accepted the Child’s behaviour escalated upon the family’s return to Australia. This was described in the Applicants’ written submissions as including disobeying explicit instructions, disregarding reasonable directions, disrupting the Child’s sibling, spending weekends away from home without notice or permission, refusing to let the Applicants know the Child’s whereabouts and making statements to the effect that the Child would not assist around the house and there was nothing the Applicants could do about it.
The Tribunal accepted that, at the same time that the above was occurring, the Child’s verbal and physical behaviour also escalated and that there were incidents of the Child yelling abuse, calling names, swearing, punching walls, slamming doors, hitting furniture, and banging walls and floors.
It was not disputed, and the Tribunal accepted, that by June 2023, the Applicants had made a decision to disconnect the internet in the house due to the Child’s behaviour. This led an escalation in behaviour by the Child which included banging, screaming, shouting and hitting.
In or around June 2023, the Applicants contacted state police for assistance and were advised the police could not assist unless there was a concern about immediate physical danger or damage to property. The Child refused to engage with former counsellors. The Applicants left the family home for one night with the Child’s sibling, at which time the Child was verbally abusive to them. AAI also gave evidence at the hearing about police having been called on two other occasions, due to the Child having left home and being unable to be located. Following this, the Child refused to engage with the Applicants in the family home and, over the subsequent weeks, refused to speak to the Applicants, although otherwise attended school and stayed in their bedroom when at home.
Leading up to the July 2023 school holidays, the Child indicated to the Applicants that, unless internet access was restored, the Child would resume the banging, hitting, stomping and slamming doors or, in the alternate, would break the network systems and reset the technology in the home. The Applicants contacted a phone support service, at which time the presence of family violence within the home was discussed with them. The Applicants also had further contact with the state police about managing the behaviours of the Child, and also discussed with the police housing the Child in a caravan on the family property, as an alternative accommodation arrangement, until the Child turned 18.
The Tribunal accepted that, at the point in time the Applicants decided to make arrangements for the child to be accommodated in a caravan on the family property, they drafted a letter to the Child. AAJ described this decision at the hearing as the “last solution” and as an attempt to find a way forward. The letter was hand-dated 13 July 2023 and read as follows:
Subject: Notice of Alternative Housing Arrangement
We are writing to inform you about a change in your current living situation due to the ongoing violence and abuse that you have subjected our family to, particularly [the Applicants’ other child].
After consulting with the [state] Police Family Violence Unit, we have decided to provide you with an alternative housing arrangement (alternative accommodation), effective one month from the date of this notice.
From the commencement of this new arrangement, you will no longer be permitted to access the main house located at [the Applicants’ address] (main premises). At this time you will be required to relinquish all keys and garage remotes, and you are not permitted to enter the main premises without express permission from ourselves.
We will fulfil our legal obligation as your guardians by providing you with basic amenities in the alternative accommodation. These amenities will include, but are not limited to:
· food supplies for three meals a day,
· heating and cooling facilities,
· toilet (composting),
· shower,
· washing machine,
· cupboards/storage,
· bed,
· dining table,
· pots/pans/cutlery,
· cleaning equipment and materials.
Please note that the alternative accommodation is fully self-contained, and you will not have any requirement to enter the main premises. It will be your responsibility to maintain the cleanliness and condition of the alternative accommodation throughout your stay.
You will be provided with essential personal items including school uniform, clothing and footwear as required. It is your responsibility to ensure items are looked after and maintained well.
A first aid kit will be provided for minor cuts and abrasions. Should you be unwell or require medical attention, you should notify us immediately via the front video phone.
Any faulty equipment within the alternative accommodation should be notified to us in writing within 1 day. Any damage should be immediately reported to us via the front video phone. If is reasonably deemed to have been caused by a deliberate act of vandalism, the police will be notified.
Whilst water and electricity will be provided, excessive usage of either resource will result in temporary restrictions until they are replenished. It will be essential for you to manage these resources responsibly during your time in the alternative accommodation. You will be responsible for the refill of water tanks, along with the emptying of the toilet waste according to manufacturer’s guidelines.
Cessation of alternative living arrangement
The alternative living arrangement will conclude on May 15, 2026 at 11:59pm, at which point our legal guardianship will also cease. From that date onward, you will no longer have any housing provided at [address of the family home] or in the alternative accommodation.
We will also cease funding your schooling, and you will be responsible for your education should you choose to complete Year 12 and pursue further studies.
During the notice period
We kindly request that you cease all abusive outbursts and maintain a safe environment in our home. This includes maintaining the cameras in their current place and locking the main premises whenever you enter or leave to ensure the safety of our home.
Additionally a representative from the [state police] Family Violence Unit will be meeting with you to discuss these arrangements and your behaviour.
We encourage you to take the time to understand the seriousness of this situation and get the support you need through your school Wellbeing Leader [name] who can refer you to Headspace.
It deeply saddens us that it has come to this point and that you choose to not listen to reason. We understand your desire to experience a normal teenage life, and we share that aspiration for you. However, we cannot tolerate the frequent disrespect, abuse and violent behaviour. This decision is necessary to ensure the safety and well-being of our family.
If you have any questions regarding these arrangements, or you would like to propose alternative living arrangements, please let us both know in writing.
Your guardians.
The evidence before the Tribunal was that, upon receiving the letter, the Child left home within the following 48 hours and went to AAK’s house. The Applicants were advised the Child was okay by the Child, but the Child would not disclose a location to the Applicants. The Child remained at AAK’s house for several months and has not, at any time subsequent to that, returned to live in the family home.
The Tribunal accepted that, in the following months after leaving home, there was some email communication between the Applicants and the Child. The Applicants were unable to verbally communicate with the Child due to what was described by AAJ as arguments and vitriol. AAK acknowledged an awareness of some email contact between the Applicants and the Child in the following months and gave evidence of the Child having attempted a reconciliation with the Applicants, who “would not back down from their position”. The Tribunal noted that AAI in her evidence at the hearing also referred to the Applicants “holding the line” in their position about the Child.
The Tribunal accepted that the Child returned to the family home on one occasion in April 2024. The Applicants gave evidence of not having known the child was at the property for some period of time. AAK gave evidence of having been on the phone with the child at the time, the Child having wanted to see someone and of the Applicants having been aware of the Child’s presence. The Tribunal accepted that police were called on the date on which the Child visited the family home.
The legal issue for the Tribunal is whether any of the above circumstances establish that it was unreasonable for the Applicants to care for the Child because there had been an extreme family breakdown.
The Tribunal found that, while the Child had displayed difficult behaviours in 2021 and 2022, the Applicants explored a range of supports that could be put in place to support the child and themselves and – while difficult – the relationship between the Applicants and the Child remained somewhat functional. The Tribunal found that there was no extreme family breakdown during 2021 or 2022.
The Tribunal found that, in the first half of 2023, the Child displayed increasingly challenging behaviours and the behaviours were difficult for the Applicants to manage. This resulted in contact between the Applicants and state police, a family holiday which the Child only minimally engaged in and the use of strategies such as turning off the Child’s internet within the home. The Tribunal accepted that, in the first half of 2023, the Child demonstrated a range of family violence behaviours towards the Applicants, including in the form of verbal violence and physical threats. The Child, however, remained living in the family home, with the Applicants continuing to explore a range of strategies to manage the Child’s behaviour. The Tribunal found from this that there was no extreme family breakdown in the first half of 2023: there was some level of communication and attempted strategies to have the Child remain living with, and functioning within, the family unit.
The Tribunal notes, however, the significant change to the relationship between the Applicants and the Child as of July 2023. As of this time, communications between the Applicants and the Child had broken down to the extent that the Applicants were communicating to the Child in writing about their intended accommodation arrangements. The communication between the Applicants and the Child by this time can only be described as non-functional, with no meaningful conversation or other communication occurring between the Applicants and the Child. The need for the Applicants to communicate their intentions to the Child by way of a written letter, because of the impossibility of verbally communicating with the child, is further evidence of the extent to which the relationship had broken down.
Further, the Applicants had by July 2023 been subject to a prolonged period of family violence at the hands of the Child. This had included physical and verbal violence, and threats of property damage, and had caused sufficient concern to the Applicants that they had, on one occasion, left the family home with their other child for a night.
Further, as of July 2023, the Applicants were of the view that the Child could no longer reside in the family home with them and proposed that the Child be moved into a caravan on the property (the “alternative living arrangements” proposed by the Applicants) because of the level and extent of the Child’s behaviour towards the family. While the proposed living arrangements involved the Applicants providing an ongoing source of accommodation for the Child, they required that the Child would not have access to the family home, where usual family activities would occur, such as spending time with one another and communicating with one another.
Further, the evidence before the Tribunal is that the Child left home in July 2023 and has not returned to the family home since that time. In the months following the Child leaving home, there was some email communication, although it was characterised by abuse and vitriol, and one attendance by the Child at the family home in April 2024, which resulted in police being called and an apparent lack of any face-to-face contact between the Applicants and the Child. The Tribunal, while standing in the shoes of the original decision maker, is able to take into account subsequent information when informing itself (Shi v Migration Agents Registration Authority [2008] HCA 31 per Kirby J at [35]-[47], Kiefel J at [143]). The evidence available to the Tribunal at the time it has proceeded to make its decision is that the lack of communication between the Applicants and the Child since July 2023, and the Child’s refusal to return to the family home, weighs in favour of a finding that there has been a family breakdown that is of an extreme nature.
The legislation provides no guidance for the Tribunal in the extent at which a family breakdown becomes “extreme” for the purposes of paragraph 25A(3)(a) of the Assessment Act. The Child Support Guide, referred to above, has similarly provided little guidance for the Tribunal in the circumstances of this particular matter. It does, however, indicate that there is unlikely to be extreme family breakdown where a parent has had frequent and regular contact with a Child over a substantial part of the period when another person was providing care for the child. The Tribunal was satisfied that such contact had not occurred in this case. Rather, the evidence of the parties suggested that any attempts at contact had been ad hoc, characterized by abuse, conducted by email rather than face-to-face contact and, on the one occasion there was attempted face-to-face contact, had resulted in state police being called.
The Tribunal was satisfied that, in combination, the circumstances of a lack of ability to communicate verbally with the Child, the need to communicate decisions of the Applicants in writing to the Child, the family violence directed towards the Applicants by the Child, the removal of the Child from the family home into a caravan, the banning of the Child from accessing the family home, the involvement of police in attempted discussions with the Child and the subsequent decision by the Child to leave home and not return and not communicate with the Applicants, in combination establishes that as of July 2023 there had been extreme family breakdown. The Tribunal finds that because of these factors, and in particular because of the family violence directed towards the Applicants by the Child, it was unreasonable for the Applicants to care for the child.
The requirements set out in paragraph 7B(3)(a) of the Assessment Act are met in the circumstances of this particular case. AAK was an “eligible carer” within the meaning of section 7B of the Assessment Act at the time the application for a child support assessment was made with Child Support on 14 September 2023.
Turning to the other requirements in section 25A of the Assessment Act, the Tribunal noted that it was not disputed that AAK had applied for both parents to be assessed in respect of the costs of the Child, AAK was not living with either parent at the time of the application, there were no applicable requirements in either section 26 or section 26A, and paragraph 25A(e) does not apply as neither parent was not a resident of Australia at the time the application was made. In these circumstances, AAK was entitled to apply to the Registrar under section 25A of the Assessment Act for an administrative assessment of child support for the Child.
Therefore, while coming to the decision for different reasons to that of the ART at first review, the Tribunal has also concluded that AAK’s application for a child support assessment was correctly accepted by Child Support. The decision to accept the application for the child support assessment, made by AAK on 14 September 2023, is correct and this decision is affirmed.
DECISION
The Tribunal affirms the decision to accept the Other Party’s application for a child support assessment under section 25A of the Child Support (Assessment) Act 1989.
Date of hearing: 4 September 2025 Applicants: Self-represented Solicitor for the Respondent: Mr C Murphy, Moray and Agnew Other Party: Self-represented
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