For separated parents school decisions and especially the decision as to which school your child will attend can be a difficult one.
You should be aware that the decision regarding a child’s current and future education, including what school the child attends, being a major long term decision, is one which ordinarily must be made jointly by both parents. This also applies to other major long term decisions such as the decision concerning a child’s education or changing a child’s name.
Each of the parents of a child under 18 has parental responsibility for the child (subject to any order of the court) (s 61(c)(1) Family Law Act 1975 (Cth) (“FLA”)). That responsibility continues even where parents separate or remarry.
Presumption of Equal Shared Parental Responsibility
There is a presumption under the FLA that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA (1) FLA). This includes jointly making decisions about “major long term issues” regardless of whether the child lives predominantly with one parent or not.
Where the presumption of equal shared parental responsibility does not apply
That presumption will apply unless the court is satisfied that that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child, for example, where the court finds that one parent has abused the child or engaged in family violence. If the court makes a finding such as that, it is usual that orders are made that provide for the other parent to have sole parental responsibility concerning major long term issues effecting the child.
If the Court makes an order in relation to a child, the parental responsibility of each of the child’s parents changes only to the extent expressly provided for in the order (s 61D FLA). This means that if an order does not specify that one of the parents has parental responsibility, or some aspect of it, then both parents continue to have parental responsibility for the child.
Enrolment at a school/changing schools: what does Equal Shared Parental Responsibility require of parents?
Equal shared parental responsibility for a child requires that parents consult with one another and make joint decisions concerning long term issues such as education, both current and future, including the decision as to which school a child will attend.
The FLA specifies that if under an order two or more persons are to share parental responsibility for a child and the exercise of that responsibility involves making decisions about major long-term issues, then the order is taken to require that decisions be made jointly (s 65DAC(2) FLA). There is a further obligation on parents to consult about such decisions and make a genuine attempt to reach a joint decision (s 65DAC(3) FLA). If parents cannot reach a joint decision, they may need to attend mediation or family dispute resolution to endeavour to reach agreement or make an application to court for orders.
For separated parents school decisions, in particular, the decision where to enrol your child or whether to change your child’s school is one that must be made by both parents where the presumption of equal shared parental responsibility applies.
However, the effect of s. 65DAC(4) FLA is that there is no requirement on any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly. A school principal when receiving an application for enrolment of a child from one parent can act upon it without having to be satisfied that both parents have jointly decided to enrol the child at the school.
However, if a parent makes an application for enrolment of a child at a school without the knowledge or consent of the other parent and there is no court order in place that gives the applying parent sole parental responsibility for the child, that parent’s credibility will be damaged before the court should the court later be required to consider the issue. Acting in this manner in particular places in question the capacity of that parent to parent or co-parent and to provide for the needs of the child.
What is the position of a school where there are parenting orders in place?
Generally, it is parties (who are usually parents) and not the school that is bound by an order of the court. It is not the school’s role to mediate a dispute between parents or to act to enforce terms of parenting orders.
However, under s.70NAC FLA, a person (such as the principal of a school) who is not bound by an order affecting children is taken to have contravened that order if that person:
- intentionally prevented compliance with the order by a person who is bound by it; or
- aided or abetted a contravention of the order by a person who is bound by it.
In certain circumstances, that person may be able to show that there was “reasonable excuse” for contravening the order (s 70NAE FLA).
This means then that there can be situations where a school principal or staff member can be complicit, or have knowingly participated, in a contravention of a parenting Court Order and be taken to have breached the order unless they had a “reasonable excuse” under the FLA for doing so.
Decisions effecting major long term issues for a child can be difficult. For separated parents school decisions to be made for your child can be particularly difficult. If you are having trouble reaching agreement with your former partner, we recommend that you obtain legal advice concerning your options. Contact our experienced family lawyers at LGM Family Law for a complimentary call or fixed rate initial consultation. Ph.: (07) 3506 0651