2025/SC030426: The Tribunal sets aside the decision and substitutes it with a decision under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 that Ms Swinburne's objection is to be treated as though she objected within 28 days of receiving notice of the original decision dated 17 December 2022.

CHILD SUPPORT - percentage of care - change to the likely pattern of care - neither parent had care - terminating event - guardian has not sought financial support - whether special circumstances prevented objection - health and accommodation issues - decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

1. This is a review of a decision of Services Australia (Child Support) about the level of care to be used in a child support assessment.
2. Ms Swinburne and Mr O'Hara have had a child support assessment for their children [named] since 2021. The care of the children was reflected in the assessment as 86% with Ms Swinburne and 14% with Mr O'Hara from 11 March 2022.
3. On 2 December 2022 Mr O'Hara notified Child Support that the care had changed from 25 August 2022 so that he had 100% care. On 17 December 2022 Child Support decided that Mr O'Hara had 100% care from 25 August 2022 with effect from 2 December 2022, and that Ms Swinburne had 0% care with effect from 25 August 2022. Child Support suspended the case for the period 25 August 2022 to 1 December 2022 as neither parent was recorded as having sufficient care in that period.
4. During 2023, Mr O'Hara's mother (the children's paternal grandmother) Ms [O'Hara] applied to the Family Court for orders that both children live with her and that she be given parental responsibility.
5. On 1 February 2024 Ms Swinburne objected to the care decision made on 17 December 2022 on the basis that Mr O'Hara did not have care of the children.
6. During February 2024 Ms Swinburne and Ms O'Hara signed a 'final minute of order'[1] in the Family Court proceedings which proposed to give parental responsibility to Ms O'Hara, stipulated that the children live with Ms O'Hara, and made provision for Ms Swinburne to have supervised contact pending certain conditions being met. The proposed orders included provision for the father Mr O'Hara to commence having unsupervised time with the children as agreed between himself and Ms O'Hara, upon satisfaction of certain conditions.
7. On [March] 2024 Court Orders[2] were made by consent which granted parental responsibility for the children to Ms O'Hara. The orders stated that the children are to live with Ms O'Hara. The orders provided for Ms Swinburne to have supervised time with the children and stated that 'the children shall spend time with the father as supervised by the paternal grandmother and/or the paternal grandfather'. The orders also included provision for the father Mr O'Hara to commence having unsupervised time with the children as agreed between himself and Ms O'Hara, upon satisfaction of certain conditions.
8. Before Ms Swinburne's objection was decided, the care levels were again changed by a separate decision of Child Support on 7 August 2024 to 0% care with both parents from 8 August 2022.
9. On 9 May 2025, over a year after Ms Swinburne objected, Child Support partly allowed Ms Swinburne's objection, deciding instead that the care was 100% with Mr O'Hara but that the care did not change until 11 September 2022. Because Ms Swinburne applied for the objection more than 28 days after being served with notice of the original care decision, Child Support also made a decision about the date of effect of the objection decision. Child Support decided that there were no special circumstances and refused to make a decision to allow the objection decision to apply from a date prior to 1 February 2024.
10. Ms Swinburne applied to the Tribunal on 5 June 2025 for review of the care objection decision and date of effect decision. Ms Swinburne applied on the basis that the children were fully in the care of their grandmother and that Mr O'Hara had no level of care. These two reviews have been heard together and this decision is in respect of both reviews.
11. The Tribunal held a hearing on 29 August 2025 with Ms Swinburne attending and giving evidence by telephone. Mr O'Hara has not been able to be contacted by the Tribunal or Child Support to advise him of this review despite multiple contact attempts. The Child Support Registrar did not participate in the hearing. The Tribunal considered whether to invite Ms O'Hara to be joined as a party under section 22 of the Administrative Review Tribunal Act 2025, but as the Tribunal had no evidence that Ms O'Hara had an interest that would be affected by the decision (as she had not applied for child support or family tax benefit for the children), it declined to do so.
12. The Tribunal and Ms Swinburne received hearing papers from Child Support numbered 1 -117. Child Support were directed to provide additional evidence after the hearing. This was received on 16 October 2025, numbered C1-C147, and provided to Ms Swinburne. The documentary evidence has been considered by the Tribunal in reaching this decision.

1. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support (Assessment) Act 1989 (the Assessment Act). The Act gives the Tribunal jurisdiction to review the decision made by Child Support.
2. The issues which arise in this case are whether the care of the children changed, and if so, should the former care be revoked, what should the new percentages of care be, and what are the dates of effect? The Tribunal must also consider whether special circumstances existed which prevented Ms Swinburne from objecting to the original care decision within 28 days of receiving notice of the decision.

1. When a change in care is notified to Child Support, the Assessment Act requires consideration of whether the existing care in the assessment should be revoked under sections 54F, 54G or 54H. Each of these sections requires a finding that the actual care that has been occurring does not correspond with the care being used in the child support assessment. If the existing care is not revoked because it is found not to have changed, no new care determination will be made. If the care is revoked, then new care percentages can be calculated and applied to the assessment in accordance with sections 49 or 50 of the Assessment Act.
2. The difficulty in making the decision in this case is that Mr O'Hara was not able to be contacted, and neither he nor the possible third-party carer Ms O'Hara have provided evidence as to their levels of care. Child Support in their additional materials confirmed the following information from their records, and records obtained from the Family Assistance system:
   1. The child support case where Ms Swinburne was the receiving parent ended 07 August 2022 resulting in a terminating event due to a later care decision (not the care decision the subject of this review).
   2. The assessment restarted for a 'reverse' case on 2 December 2022 where Ms Swinburne became the paying parent. The care change that related to this was both children in the 100% care of Mr O'Hara from date of event 11 September 2022, effective from the date of notification of 2 December 2022 (the decision under review).
   3. Family Assistance records for [Ms] Swinburne 24/08/2022 to 17/01/2024 which reflect the care decisions made by Child Support.
   4. Family Assistance and Centrelink records for [Mr] O'Hara 18/10/2022 to 02/01/2024 which show that his claim for Parenting Payment on 18 October 2022 was rejected as he had no care of the children, but that on 15 June 2023 he was granted Family Tax Benefits as he was shown as having 100% care of both children from 25 August 2022 (reflecting one of the Child Support care decisions).
   5. Child Support has not determined a later change in care as a result of being notified of a change in care pursuant to the orders placing the children in the care of Ms O'Hara.
   6. Ms has not applied for a child support assessment for the children of the assessment since August 2022.

Issue 1: Did the care change and if so, should the existing care be revoked?

1. Ms Swinburne does not dispute that the care changed and that her care since that change has been zero nights of care, although she has been having supervised contact and said she is working towards a future shared care arrangement between herself and the children's grandmother. She gave evidence that Mr O'Hara lives with his parents, which is the same address where the children reside, but due to mental health and other issues he is unable to have care of the children. She said this is supported by the fact that in early 2023 Ms O'Hara filed an application against both parents for orders to gain care of the children, despite Mr O'Hara living with her. Ms Swinburne stated that an interim court order was made that gave Ms O'Hara care of the children until final orders were made giving her full responsibility for the children [in] March 2024. The Tribunal notes that the interim order provided in the hearing papers dated 28 November 2023[3] does not provide for the interim care of the children however it is possible that other orders were made prior to the final order in March 2024.
2. Ms Swinburne said that Mr O'Hara was subject to family violence orders in which she and the children were the protected persons while these court proceedings were occurring, and he was not allowed any unsupervised contact with the children. The family violence orders provided by Ms Swinburne[4] are final orders in place for 2 years from 25 June 2021 and only list Ms Swinburne as the protected person, however other orders may have been made that have not been provided to the Tribunal, and Ms Swinburne believed there were orders that continued well into 2024. Ms Swinburne believed that Mr O'Hara had been given some occasional unsupervised time with the children although not to the extent where he was actually providing care. Ms Swinburne stated that she does not communicate with Mr O'Hara at all but does communicate with Ms O'Hara about care of the children and is aware that she fully cares for the children, takes them to school and does all things related to the children's care, and that Mr O'Hara is unable to perform these functions. Ms Swinburne submits that she is happy to pay Child Support, however it should be going to Ms O'Hara and not Mr O'Hara as he does not care for the children. Ms O'Hara has not applied for Child Support.
3. Ms Swinburne said that the care changed in 2022 when she re-partnered and experienced domestic violence in that new relationship which resulted in it being safer for the children to live elsewhere until she could remove herself from that situation. Originally, they went to stay with Ms Swinburne's sister for a couple of months, and then with their paternal grandmother for the last month or so of school, and then with Ms Swinburne's mother for some weeks over the Christmas holidays. After this they returned to live with Ms O'Hara in early 2023 and she made the application for parenting orders at that time.
4. Ms Swinburne agrees that the care changed from her having 86% care to no care. While Ms Swinburne was not able to provide an exact date at hearing, she was able to provide a timeline that aligns with the change most likely occurring during August or September 2022. Evidence provided by Child Support showed that Ms Swinburne also made a care change notification on 10 April 2024 that the care was 0% to each parent from 8 August 2022 based on the same event as the care change under review. Child Support later accepted this change to have occurred on 8 August 2022, however that zero care was ended by the decision under review from 2 December 2022, which was that Mr O'Hara had 100% care.
5. While Ms Swinburne's care changed sometime during August or September 2022, and it seems likely that neither parent had care from at least the date of the court orders in March 2024, it is less clear on the evidence whether Mr O'Hara's care changed prior to that time, and if it changed, what it changed to.
6. The only information received directly from Mr O'Hara regarding the care in the relevant period is in the Child Support records on 2 December 2022, 14 May 2024 and 7 August 2024. The first of these is when Mr O'Hara notified Child Support on 2 December 2022 about the care change, with the record showing he stated, 'children arrived for an access 25/08/2022 and have not returned to other party who has not responded to any contact attempts since'. He provided the below letter on the same date.
7. The Tribunal discussed with Ms Swinburne at hearing the letter from NSW Communities and Justice that is undated but was received from Mr O'Hara on 2 December 2022.[5] It is from the children's caseworker and states that she has worked with the family for around 7 months and would like to confirm that the children are in the full care of their father, who has been caring for them since 11 September 2022. It says their mother Ms Swinburne has not had care of the children since 28 August 2022.
8. Ms Swinburne said that she did not know if that case worker had any contact with Ms Swinburne's family who were also providing some care in that time, and regardless of whether Mr O'Hara had some minimal care in that time, that stopped in early 2023 when his mother sought an order against both him and Ms Swinburne.
9. The next direct contact noted by Child Support[6] shows that on 14 May 2024 Mr O'Hara stated, in response to a pending care decision:

[Mr O'Hara] disagrees to the date of event: [Ms Swinburne] is claiming the DOE to be 08/08/2022, [Mr O'Hara] explained he has had 100% care of the children from the 25/08/2022 and then after 6 months the care has gone to his parents for 50%.

[Mr O'Hara] explained that his parents live with him, and they take care of the children whilst he is working but he spends the night caring for them. [Mr O'Hara] disagrees with the 0%, rather he has 50%.

1. The final direct contact with Mr O'Hara in the records provided was dated 7 August 2024,[7] when he was contacted in response to Ms Swinburne advising neither parent had care from 8 August 2022:

Discussions with the other party: - [Mr O'Hara] agreed with the nil care but disagreed with the DOE, I referred to disagreed care but they advised it should be an objection. I made a contact attempt but [Mr O'Hara] has not responded or called back.

1. The hearing papers show that Mr O'Hara did not respond to numerous other contact attempts made by Child Support. The evidence he has provided to Child Support is unclear. In December 2022 he advised he had care of the children since either 25 August 2022 or 11 September 2022, in May 2024 he said he had 100% of the care from 25 August 2022 for 6 months and then it reverted to 50% care between himself and his parents, and in August 2024 he appears to have agreed that neither party had care of the children but disagreed with the date of 8 August 2022 provided by Ms Swinburne.
2. Ms Swinburne has claimed that Mr O'Hara had no care from 8 August 2022 or may have had some minimal but unknown level of care between that period and an unspecified date in early 2023 when his mother made her parenting order application. The only external evidence that could corroborate what occurred is the NSW Communities and Justice letter and the court orders. The Tribunal considers that it is highly unlikely that Ms O'Hara would have applied for parenting orders in her favour if she were not having care of the children, particularly as she has had no financial incentive to do so, as it is clear she has not applied for a child support assessment, family tax benefit or parenting payment. The Tribunal also notes that there is no evidence before it of any arrangements that may exist between Mr O'Hara and his mother about financial support for the children if she is indeed having care while he is the recipient of child support, family tax benefit and other parenting payments.
3. The court orders only apply from 12 March 2024, and do not shed light on the actual care of the children in the year and a half prior that is in contention. The Tribunal notes however that Ms O'Hara was unlikely to have signed proposed orders in February 2024 for her son to commence having some supervised care of the children if he was already having care of the children.
4. The Tribunal finds that Ms Swinburne's care most likely changed on 11 September 2022 to 0% care. While Ms Swinburne has previously advised Child Support she lost care from as early as 8 August 2022, the Tribunal has relied on the written evidence of the children's caseworker as to the date Mr O'Hara claims to have taken over care of the children meaning that Ms Swinburne did not have any care from that date. While it appears on the evidence that Ms Swinburne did not personally have full care of the children in the month leading up to that change, her evidence is that she first arranged for the children to stay with her sister and so it is likely that she was still having care during that brief unsettled period. If the later care decision had not been made on 7 August 2024, the Tribunal would have been revoking Ms Swinburne's previous 86% care from the day prior to 11 September 2022 in accordance with section 54F of the Assessment Act. However, the Tribunal understands the evidence from the Child Support records to mean that as a result of the later care decision of 7 August 2024, the recorded care for the mother was 0% after that time, and therefore there was no further change on 11 September 2022. Ms Swinburne's care will therefore remain recorded as 0% from 8 August 2022, including once the case restarts from 2 December 2022.
5. The Tribunal finds on balance that the care of Mr O'Hara changed on 11 September 2022, increasing (from what was 14% but replaced by a later care decision to 0%) to 100% with effect from the date he notified on 2 December 2022. The Tribunal relies heavily on the correspondence from NSW Communities and Justice in making that finding. The care percentage that previously applied for Mr O'Hara is revoked under section 54F of the Assessment Act. Section 50 of the Assessment Act requires new care levels to be determined.

Issue 2: What is the new level of care and from what date does it apply?

1. The Tribunal has found that Mr O'Hara had 100% care from 11 September 2022. The Tribunal considers that a 6-month care period is an appropriate one over which to determine Mr O'Hara's care, as he has later claimed that this arrangement continued for 6 months, and the Tribunal has insufficient evidence on which to decide that a different period is reasonable. The new percentage will apply for Mr O'Hara from the day after his previous care was revoked.
2. As discussed above, the Tribunal notes that the actual care appears to have changed again, possibly from early 2023 and more certainly from 12 March 2024 based on the orders obtained by Ms O'Hara. Mr O'Hara's own statement to Child Support on 14 May 2024 was that the care changed again 6 months later to a shared arrangement with his parents. Had Mr O'Hara been involved in this review, depending on his evidence the Tribunal may have reached a position where it was able to make a second care change decision to give effect to care of the children from a later date. However, the Tribunal finds it is unable to do so in circumstances where Mr O'Hara has not given evidence in this review, and all evidence from Child Support and Centrelink shows that Ms O'Hara has not made any applications stemming from obtaining any care of the children.
3. The Tribunal notes that there appears to be nothing to prevent Child Support considering whether they have already received notification of a later care change by virtue of Mr O'Hara's statement on 14 May 2024, or indeed any of the statements of Ms Swinburne about the care as ordered from 12 March 2024. The decision of the Tribunal does not stop Ms Swinburne discussing with Child Support whether they will consider a further care change for Mr O'Hara of less than 100% from at least the date of the order [March] 2024, as she appears to have been attempting to notify Child Support for some time based on her various discussions with Child Support shown in the hearing papers.
4. The Tribunal also notes the somewhat odd outcome of there being an additional original decision of Child Support made 7 August 2024 on what appears to be the same factual basis, where both parents were found to have no care from 8 August 2022, however as this predates the 11 September 2022 change, it is overridden by it in respect of Mr O'Hara's care. The letter explaining the change on 7 August 2024[8] states that the case will end because of it, but in reality it merely changed the end date in the case where Mr O'Hara was the parent assessed to pay child support by moving it from 25 August 2022 to 8 August 2022, and had no effect on the 'reverse' case started 2 December 2022 where Ms Swinburne was the parent assessed to pay child support and Mr O'Hara was recorded as having 100% care. There are notes in the hearing papers stating the 7 August 2024 decision should have been dealt with in the objection, and the Tribunal presumes this is because it was based on the same factual care change even though the date of the change was unclear. However, it was not dealt with in the objection and was a decision made entirely separately from it.
5. Ms Swinburne gave evidence at hearing that she was very confused about the various decisions that Child Support has made, particularly considering the court orders she has provided to them. This is unsurprising given the order in which Child Support have made decisions and the significant delay in determining Ms Swinburne's objection. The Tribunal considered carefully whether it could make a decision that neither parent had care as far back as 8 August 2022, which would in effect end both cases from that date. However, the Tribunal finds that it does not have sufficient evidence about Mr O'Hara's care in that period to make a finding that he had no care at that time.

1. Ms Swinburne was also seeking to have the section 87AA decision made by Child Support reviewed so that if the Tribunal changed the decision under review, it could apply from the date of the change and not the date that she objected late on 1 February 2024. Ms Swinburne gave considerable evidence at the hearing of her circumstances during the period between when Child Support made the original decision on 17 December 2022 and when she objected over a year later. This included significant domestic violence, mental health issues, rehabilitation, potential homelessness and a tenancy dispute in a state tribunal, identity fraud and suffering a rare infection resulting in hospitalisation for several months, in addition to the ongoing issues and court processes regarding care of the children.
2. The Tribunal is satisfied that Ms Swinburne experienced special circumstances that prevented her being able to object within 28 days of receiving notice of the decision, and makes a determination in accordance with subsection 87AA(2) of the Act.
3. As the outcome of the objection decision about care has not been changed, the only change this decision about the date of effect could have made to the assessment was by slightly extending the period of the case where Ms Swinburne was the receiving parent to 10 September 2022 (instead of it being suspended from 25 August 2022 as per the original decision). Unfortunately, the Tribunal expects that this will not result in any changes to the assessment due to the later care decision that the case ended retrospectively from 8 August 2022.
4. In respect of the care decision, the Tribunal affirms the decision under review as it has reached the same outcome as the objections officer.
5. In respect of the section 87AA decision, the Tribunal sets that decision aside and replaces it with a decision under subsection 87AA(2) of the Act that Ms Swinburne's objection is to be treated as though she objected within 28 days of receiving notice of the original decision dated 17 December 2022.

2025/SC029918: The Tribunal affirms the decision.

2025/SC030426: The Tribunal sets aside the decision and substitutes it with a decision under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 that Ms Swinburne's objection is to be treated as though she objected within 28 days of receiving notice of the original decision dated 17 December 2022.