Family Law – choosing and changing schools, who makes the decisions?

In Family Law, unless a Court Order has ruled otherwise, it is presumed that each parent has ‘equal shared parental responsibility’ with regard to major long term decisions involving a child.

So what is equal shared parental responsibility?

The presumption was created as a result of amendments to the Family Law Act (Cth) which encourages co-operative parenting by giving parents an equal say in the major decisions involving a child. Parental responsibility applies to each parent of a child regardless of whether the child’s parents are in a relationship or not.

Parents must make a genuine effort to consult with each other and come to an agreement when making decisions involving major long term issues concerning the child such as changing the child’s school or deciding which school their child should attend.

What if we can’t reach a joint decision?

If you are unable to reach a decision with your ex-partner your next course of action is to attempt to mediate the matter. At first instance, it would be beneficial for you to seek the advice of a Family Lawyer to assist you with your matter and provide you with a pathway to reaching an agreement. Once you are aware of your legal responsibility and obligations, you could contact an avenue such as the Family Relationship Centre to make arrangements for a Mediation or you could choose to engage a Mediator privately. It is a requirement before an application to the Court can be made for parents to engage in Mediation and make a genuine attempt to resolve the matter. However, if there has been abuse or family violence in the relationship an application to the Court can be made without partaking in mediation.

Practical points to consider

In circumstances when the parents are unable to reach a decision jointly through Mediation or otherwise, the task falls to the Court. This should always be a last resort if every alternate option has been exhausted.

Following separation, there are a number of factors which may affect a child’s schooling. These can include financial means available to both parents post separation, possible relocation, downsizing residence or the amount of time each parent provides care to a child. Reconsidering a child’s schooling may be an inevitable new reality that needs to be confronted. Examples of this include: A parent with the weekly care of the child has had to relocate a significant distance from the child’s current school; or the child was previously enrolled in a private school but post separation, following the completion of a property settlement between the parties, this is no longer an affordable option.

The Family Court has considered the proper approach for deciding schooling issues in the case of Re G:Children’s Schooling [2000] FamCA462 and the following relevant factors have been identified as:

  1. The views of the child when appropriate;
  2. Any prior agreement in selection of schooling;
  3. Any change to existing arrangements;
  4. Other siblings current and/or future schooling arrangements;
  5. Any anxiety the child may experience as a result of changing peer groups;
  6. The views of the parties about the effect of the change on the child;
  7. Travel time to school; and
  8. Costs of education.

The Court will also consider the relevant subsections of Section 60CC of the Family Law Act 1975 (Cth) which relate to the best interests of the child. However, the point has been made that this list is not exhaustive and the relevant factors will vary in accordance with individual circumstances.

How do I communicate effectively with my ex-partner?

When choosing a school, reasons for each parent’s choices are individual and could include ‘I went to that school so my child should go there too’, ‘this school is closest to home’, ‘this school performs the best academically or ‘this school has the best Arts program’. Whatever the reason may be, it is the parents’ responsibility to come to a joint decision for their child. You as the parents’ know your child best and are the best people to be making decisions for the benefit of your child.

When faced with such a decision whilst going through a separation it is a good idea to keep the focus on the child and to consider the child’s best interests in all communications with your ex-partner. Depending on your relationship, it may be best to text, email or call them to make them aware that you need to discuss and reach an agreement regarding your child’s future schooling. In the lead up to such conversation/meeting you may wish to write some notes with regard to your reasons for the choice of school for your child so that you are prompted to express your thoughts and feelings surrounding this matter and so you can refer back to them if the conversation is veering off track. In addition to your individual choices, the preceding list above provided by the Family Court is a great starting point for making your decision about your child’s schooling future.

Parenting Plans or Court Orders

A parenting plan is any written agreement that is reached by the parents either on their own or with the assistance of a family law professional which deals with matters relating to the care of a child. To be valid, a parenting plan must be signed and dated by both parents.

A parenting Order, is an Order made by the Court determining matters relating to the care of a child. If an Order or parenting plan is in place at the time of enrolling a child in school, provision is generally made under the Order for whether the parents share sole or joint parental responsibility and may dictate how they are to communicate with each other regarding major long term decisions and the requirement to make a genuine effort to make such decisions

Both parents should make their child’s school aware of any parental conflict or the parent’s relationship status if this is going to effect the child. The school should be provided with any parenting plan or Order. If a parenting plan or Order states that the parents have the right to make decisions about major long term issues this includes the right to decide where the child attends school. If the parents have either a parenting plan or Orders which set out who has the right to decide where the child attends school, the school should abide by the Order and require the signature of the parent/parents’ who have the right to make decisions.

When there are Orders and a parenting plan, which prevails?

If the parents have a parenting plan and Orders and both documents set out who has the right to decide where the child attends school, the date of both documents should be carefully checked. If the Orders were made after the parenting plan, the Orders prevail. If the parenting plan was made after the Orders, it is usually the case that the parenting plan prevails unless the Orders specifically say that they may only be varied by subsequent court orders.

School catchment zones

More often than not, when parents’ separate one parent will remain in the family home and one will relocate to an alternate residence. If your child is already attending school it is likely that it would be in the best interests of your child to remain at their current school. However, the question may arise as to which school catchment your child belongs to i.e. the family home or the other parent’s alternate residence. Particularly, if your child is yet to begin the educational journey and you are just starting the enrolment process for your prep aged child.

Basically, to qualify to enrol in a particular state school you must provide proof that your child’s principal place of residence is within the catchment area. Depending on your chosen school, current proof of residency can be provided by way of one of each of the following:

  1. One primary source – a current rental/lease agreement, or rates notice, or unconditional contract of sale; AND
  2. One secondary source – a utility bill (e.g. electricity or gas) showing the same address and the parent’s name.

On this basis, either residence can be proven as your child’s principal place of residence to your child’s school to satisfy the catchment requirements. If the Principal is not satisfied of your child’s residence based on receipt of the above documents, the Principal can further request a properly sworn statutory declaration from the enrolling parent or legal guardian attesting that the student’s principal place of residence is the place nominated in the enrolment application. If you have a parenting plan or a Family Court Order which provides for the living arrangements for the child this can and should also be provided to your child’s school as evidence of your child’s principal place of residence.

School responsibility

If your child’s school is unaware of your separation or any parenting arrangements whether agreed, by parenting plan or by Order of the Court the school may enrol your child with the consent and signature of just one parent on the assumption that each parent can make decisions in relation to the child severally or jointly.  However, from a practical point of view, it is in the school’s interests to ensure both parents consent to the enrolment of the child at the school. This may reduce conflict with the other parent in future and possibly stop the other parent withdrawing the child from the school. It is also a good idea for the school to have both signatures on the enrolment form so that both parents are responsible for the payment of the school fees.

If you become aware that your child is otherwise enrolled in a different school or if you do not consent to the child’s current enrolment, upon being brought to the Principal’s attention, the Principal can only enrol your child on a casual short-term basis (usually no longer than one term) which will allow for the dispute to be resolved by the parents either by agreement or by Court Order.

It is not the responsibility of your child’s school Principal to determine disputes between parents regarding enrolment of a child. If you are separated, and your child is due to commence or change schools, you should attempt to agree in writing on the choice of school well before the commencement of the next school year. In circumstances where there is a dispute and no Court Orders, you should obtain advice from a family lawyer as soon as possible to ensure sufficient time to resolve the dispute prior to the commencement of the school year.

Further advice with respect to parenting matters can be obtained by contacting one of our Family Law Solicitors. We will provide you with child-focused advice, representation and support in relation to establishing parenting arrangements that will meet the needs of your children.

 

 

This information is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

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