Considering the vast distances dividing Australia’s major population centres, the advent of high speed internet connectivity and the highly mobile nature of the Australian community as a whole, it is little wonder that the breakdown of family relationships bring many parents into conflict over where the now separated family is to live. Work commitments or career advancement opportunities after separation regularly put parents in need of moving to different towns or cities and many parents who previously agreed to move away from their home towns as part of intact nuclear family units understandably wish to move back for the support of extended family when the immediate family unit is no more.
When the parents cannot agree on these relocation issues, the Australian Family Court has the power to decide who can stay and who can go, but beyond these primary issues there are many other things to consider:
- Who pays for the cost of seeing the children – there is definitely no principle in Family Law to say that the parent who moves away (with or without the children) must be the parent who is obliged to pick up the cost of the children continuing to spend time and communicate with the other parent who did not relocate. What Family Law principles do say is that each parent is duty bound to do everything reasonably necessary to ensure that children continue to spend time and communicate with both of their parents and consequently it continues to be a responsibility of both parents to pick up the added cost of long distance parenting, but only to the extent that it is reasonable to do so. What is reasonable of course depends on the facts of each and every case.
- Impact of higher costs of long distance parenting on Child Support Assessments – if the relocated parent wishes, they can have the Child Support Agency consider reducing the amount of their standard Child Support Assessment to take into account the cost that parent is now paying to see the children for:
- telephone expenses; and
- internet and the like.
Like most things however, there are conditions:
- the costs to be considered are only those costs which exceed 5% of the parent’s adjusted child support income;
- food, clothing and entertainment costs are unable to be claimed; and
- if the parent is only seeing the children between 52 and 127 nights per year, only transport costs can be considered. Accommodation, telephone and internet etc costs are all excluded.
Justification for the 5% threshold works on the assumption that the cost would be of an insufficient magnitude to peak above the usual ebb and flow of the day to day household living costs. The justification for excluding food, clothing and entertainment etc costs stems from the fact that these costs are part and parcel with the usual costs the parent would have been paying for the children whether at home or away. The restriction to transport costs only for the 52 – 127 night care arrangement is not readily explicable, but possibly stems from a concern to ensure that child support payments needed for children’s day to day sustenance costs such as food and clothing in the primary parent’s household are not gauged and diverted to pay for expensive hotel rooms.
Deductions for these costs from child support are not automatic, the claiming parent must make application to the Child Support Agency for a review of his/her assessment via the standard child support review process. In adjudicating on this decision, the Agency will give the other parent a right of reply and will require full documentary evidence to support all of the claim and again, will only allow those expenses which are considered to be reasonable in all of these circumstances.
Michael Zande is a Queensland Law Society accredited family law specialist with over 20 years experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes to contact Michael for advice phone 3385 0999.
The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.