School enrolment for small children is often a subject for dispute in the family courts. This issue is typically dealt within the context of parental responsibility. Parental responsibility is the term used to describe decisions as to major long-term issues for children such as schooling, healthcare decisions and religious practice.
In situations where court orders as to parenting are in place, parental responsibility is one of the first subjects that is dealt with. In most cases, parents share in parental responsibility and thus also share in decision-making as to school enrolment. These types of matters are fairly straightforward.
In the absence of any Court Orders, decisions around enrolment should ideally be made jointly by both parents. This means that parents should consult with each other and jointly come to a decision about which school their child will attend. Where possible, both parents should sign school enrolment forms. In many cases, this is not possible due to good-faith disagreements as to schooling issues or due to the breakdown of the relationship between the parents.
More complex scenarios arise when no orders as to parental responsibility have been made and no agreements have been reached. Sometimes, for instance, separation of the parents occurs when a child is quite young and decisions as to schooling are not required for many months or years. The parents may cooperatively co-parent for many years and then a decision needs to be made as to where the child will be enrolled in school. Mum may want the child enrolled in School A, Dad may want the child enrolled in School B. How does a decision as to school choice occur between the parents in this instance?
The most common options are as follows:
- Family Dispute Resolution – this form of parenting mediation seeks to facilitate agreements between parents to parenting disputes. Attempting Family Dispute Resolution (“FDR”) is required prior to commencing most court proceedings as to parenting. In many cases, FDR assists the parents in reaching an agreement as to school enrolment. FDR is conducted by a mediator who is specially trained in parenting disputes.
- If an agreement is not reached at FDR, either party can seek orders for parental responsibility (and specifically as to school enrolment) in the Family Court or Federal Circuit Court. Parenting matters can be quite expensive, emotionally gruelling and can span many years. Consideration must be made prior to commencing litigation in the court system so as to ensure that all non-litigation options have been reviewed.
- In situations where FDR is not successful and the parents are waiting for court orders, the parent with whom the child primarily resides has a responsibility to enrol the child in a public school within the catchment area in which they reside. It would not be acceptable for the child to not be enrolled in school at all because the parents could not agree.
Disagreements over school choice can be emotional and complex. Our Family Law team is well versed in such matters and is available to assist with your matter. Speak to our team today.