The obligations on separated parents to consult before choosing a school.
The choice of a school for children can be a difficult one for parents. It is even more difficult for separated parents. The difficulty is exacerbated having regard to religious and/or cultural differences as well as the different emphasis parents place on matters such as sports, drama or academic results.
On 1 July 2006, the Family Law Amendment (Shared Parental Responsibility) Act 2006 (the Act) came into effect, reforming the existing Family Law Act 1975. The Act introduced the concept of 'shared parental responsibility'. This term means that, in the absence of parenting orders providing for one parent to have sole parental responsibility, both parents have an equal role in any major long-term decision affecting their child. Consequently, any long-term decisions made by parents must be made jointly, regardless of which parent is the child’s primary carer.
Often we see parents who assume that, because the child lives with them the majority of the time, they have a greater role in relation to the major long-term decisions affecting the child. In fact, that is not the case and making these decisions without consulting the other parent is likely to draw criticism from the Family Court in any future parenting proceedings.
One of the significant long-term decisions affecting children is the decision about their education. Where parents have shared parental responsibility, both parents are expected to genuinely consult with each other and be actively involved in decisions regarding the child’s education. These decisions include determining which school they will attend. Ideally, we recommend that separated parents discuss the future education of their child as early as possible to resolve any potential conflict well in advance of any school enrolment deadline.
Consultation with the other parent involves setting out your proposal for schooling and providing them with a reasonable timeframe to respond. We recommend that you do this in writing. Matters you might include in your proposal, to assist the other parent consider it, are:
- The name and details of the school you are proposing, including location.
- Why you have chosen that particular school (details of recommendations, experiences with ex-students, knowledge of teachers, information about the school’s historical academic performance, information about the subjects available at the school).
- The school fees and your proposal for funding payment of school fees.
- Any other relevant information about the school including any information packs, orientation days and website details.
If you and the other parent are unable to reach a joint decision, the process may be assisted by consultation with a Family Dispute Resolution Practitioner (FDRP). This practitioner can help you communicate with each other about what is important to each of you and assist you to make a decision resolving your dispute.
If, after meeting with a FDRP, you are still unable to reach agreement, then the FDRP will issue you with a certificate, certifying that you have attempted to resolve the matter outside of Court. This certificate is an essential prerequisite before you can commence proceedings in the Family Court seeking that a Court make the decision in respect of your child’s education. Ultimately the Court will base their decision on the best interest of the child.
If parents are able to reach an agreement about a child’s education, then they can document their agreement as part of a formal parenting plan. If there is concern about enforcement of the agreement, then you can have Court Orders drawn up to document the agreement reached. Once there are Court Orders in place, you will have a guaranteed outcome which, in the absence of a change of circumstances, will bind both parents.
For further information, contact the Family Law Team
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