When choosing a school is a matter of family law

27 August 2019
Jason Walker, Partner, Melbourne

Your footy team, where you grew up and where you went to school are just some of the factors that can impact how we each define and describe ourselves in our various family and social support environments.

Such is the demand for private schools and the strength of the “old boys” and “old girls” networks and family affiliations that many parents following the birth of their child will immediately place the child’s name on a school enrolment waiting list.

Years may pass however before an actual decision is made as to which school a child will attend, whether it be a state school or a co-educational or a single-sex private school.

Issues relating to choice of school often crystallise when a placement offer is received in circumstances where parents have separated and, whether for financial, geographical or any number of other reasons, there is no current agreement that the offer will necessarily be accepted.

Compounding this stress is the often tight timelines that the schools are required to operate within, meaning the placement may be lost simply because, in the absence of a clear response, the position will be offered to the next family on the list.

A family separation may also raise issues as to whether a child will need to move schools and whether or private or state education is available to the child in the changed circumstances.

If a child is to be state educated, the choice of school can be subject to zoning requirements or capacity outside of a designated neighbourhood zone.

The question of which school a child should attend can be highly controversial.

The issue can become more complicated still when there is a dispute between parents as to who will be paying the private school fees.

Many parents have differing views about the needs of their child and which school best meets those needs. As children develop and their needs change, parents may need to reconsider long-held opinions as to which school their child should attend or consider other options depending on what may be the best outcome for their child.

An inability to agree upon a choice of school may also be symptomatic of broader difficulties in separated parents’ ability to co-operatively parent the children.

 

Parental responsibility

Parents have “parental responsibility” for their child until they turn 18 years of age. The Family Law Act describes parental responsibility as meaning “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”

These duties include decisions in relation to long term matters, such as which school a child should attend. This decision should be made jointly by both parents, unless there are Court orders in place which specify otherwise.

When parents cannot agree which school a child should attend, the Family Law Courts generally prefer not to choose between competing school options but instead will consider making orders specifying that one parent will have “sole parental responsibility” for the child’s education. That parent is then empowered to make decisions (often following mandatory consultation with the other parent) about which school a child may attend and other associated matters.

The Family Law Courts take into consideration a number of factors when determining whether or not an order imposing sole parental responsibility in this respect is warranted. Very often, the issue of school selection is just one of a multitude of parenting issues that parents may seek to have determined by the Family Law Courts.

There is no legal presumption that whichever parent a child spends the majority of their time with post separation is unilaterally able to make a decision about the school that child should attend without consulting with the other parent.

The Family Law Courts will also take into consideration the following:

  • any views or wishes expressed by the child as to which school they wish to attend;
  • the nature of the relationship of the child with each of the child’s parents;
  • the maturity, sex, lifestyle and background of the child and of the child’s parents;
  • if the child is currently enrolled in a school, how the child is progressing at the current school;
  • prior agreements in relation to schooling and other parenting matters;
  • any cultural or religious reasons for a child attending, or not attending, a particular school; and
  • the fees payable for each school and the ability of each parent to contribute to those fees.

The Family Law Courts will also take a practical approach in determining these issues and consideration will be given to which parent undertakes more of the travel to and from school and how long the child may spend travelling (whether by public transport or otherwise) on each parent’s proposal.

The Family Law Courts will also take into account how a change of school would affect the child, including whether it would it be highly stressful and/or unsettling for the child to change schools.

If the Family Law Courts are to make orders in relation to parenting responsibility, a parent must be mindful that even if the proceedings are able to be listed for a hearing on an urgent basis, it could be weeks or months before a decision is made. This can be extremely frustrating for a parent looking to accept an offer within a prescribed timeframe.

We have a highly-skilled and experienced Family Law and Relationships Team at Gadens who can advise on strategy should you face difficulties in determining which school your child should attend.

 


Authored by:

Jason Walker, Partner

Accredited Family Law Specialist

Accredited Children’s Law Specialist

 

Lisa Oxley, Associate

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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