Schools and separated parents: Who decides when you can’t agree in Australia?
Schools and separated parents: What to know
The most common issues we hear of in relation to selection of schools and separated parents include:
- Inability to agree on where a child should be enrolled for school;
- Whether a child should be moved to a different school; or
- A parent enrolling a child into a school without the other parent’s consent.
So what can be done in these circumstances in Australia? Below we will explain what every separated parent facing a disagreement in relation to schools for children should know – from a legal perspective and the avenues available to get these issues resolved.
Common school-related disputes between co-parents
Whether the disagreement is about starting school or changing schools for one or more of your children, we know that these disputes stem from one or more of the following concerns:
- Readiness to start primary school (or delay by a year)
- Whether private or public school is best for their child/ren
- Religious or cultural factors
- Learning or special needs
- A child expressing a desire to move schools
- Decisions about moving schools due to relocation or change in workplace location
- Decisions on schooling relating to school affordability post-separation
Currently we are seeing less disputes relating to where children are currently, and more about where they will go for high school.
What the law says about decision-making authority for separated parents
In Australia, the Family Law Act is the legislation that all states and territories of Australia must adhere to in children’s matters.
At the core of all family law related matters is the best interests of the child.
The term ‘best interests of the child’ is found throughout the legislation and states that all decision making in relation to a child must be made with the best interests of the child, as the most paramount consideration. This means there must be a focus on each individual child’s safety inclusive of their:
- Emotional needs;
- Psychological needs;
- Developmental needs and
- Cultural needs.
While most parents reading this will be thinking “that makes sense and it’s what I’m doing”, when disputes arise between co-parents, your perspective about what is in the best interests of your child might not be entirely aligned with the legislation.
So, to help you become familiar with how a Court would treat issues relating to schools, below we answer the most common questions we are asked. But first, you must understand this fundamental legal element…
Who legally is allowed to decide on a child’s school in Australia?
The answer to this question comes down to whether you already have Parenting Orders in place (legally binding Orders), or not. Parenting Orders are either established by agreement (called Consent Orders) that have been finalised by the Court, or they are Court-ordered.
We explain what happens if you don’t have Orders further on but when parents do, then both parents are compelled to follow those Orders which details something known as the allocation of decision-making responsibility.
This allocation of decision-making responsibility is known as Parental Responsibility. Importantly, this is entirely separate from any shared care arrangements you have in place.
Parental Responsibility
Parental responsibility is allocated as either:
- Sole parental responsibility; or
- Joint parental responsibility.
If you have an Order for joint parental responsibility you must confer and come to a joint decision. If you have an Order for sole parental responsibility, you have authority to make decisions in relation to the child independently.
Otherwise, if there are no Parenting Orders, then it is required that both parents confer on major long-term decisions that materially affect the welfare and development of a child, unless there is a safety issue.
If there are safety concerns such as family violence, seek advice from a family lawyer urgently who has experience in assisting people with Protection Orders and can advise you about what is required to make an urgent application to the Court seeking sole parental responsibility.
Minor and major decision making
The Family Law Act classifies decision-making as either minor or major. Where there are disputes relating to a major decision, the matter can be resolved through Family Dispute Resolution (FDR) and if still unable to be resolved, be heard in Court and a decision made.
An example of a minor decision for co-parents might be which brand of toothpaste the children are to use or the food they eat while in the other parent’s care. That being said, if a child is, for example, gluten intolerant and this is not addressed while in the other parent’s care, this may cross over into a major decision that has a significant impact on a child’s wellbeing and welfare.
A major decision is a long-term decision that affects the development, sense of identity, health and welfare of a child. In school selection disputes this may be in relation to educational needs such as NDIS plans, ILPs, Speech or Occupational Therapy during school hours, etc.
FAQ’s: Schools and separated parents
Can my ex enrol our child in a new school without my consent?
Unless you have sole parental responsibility, the answer is no. We see this often and it is a really big issue. This falls under the banner of joint decision making and it is one of those major long-term decisions that parents are encouraged to confer on and go through together. What can you do about it? Read on below.
My child isn’t ready to start pre-school/ primary school but my ex wants them to start. What can I do?
Unless you have been assigned sole parental responsibility, you must both confer to come to an agreement.
In some states and territories of Australia (e.g. ACT), early entry to preschool or primary school may be permitted up to a year earlier than usual. However, if the issue is about a parent expressing a child’s need for more time before entering a school setting, while eligibility for entry is a consideration, it will not override what is in the best interests of the child as is specified in the legislation to consider each child’s developmental, psychological, emotional and cultural needs.
If you cannot come to an agreement between you, seek legal advice early to get the resolution process under way.
What if we cannot agree on whether private or public school is best?
If you are in disagreement about whether a child/ren should go to a private or public school, unless you have sole parental responsibility, the next step is to seek legal advice. If affordability is the core issue, see the next question and response below.
Determining whether a private or public school is best for your child/ren will start with seeking advice from a family lawyer who will ask you about each child and their individual needs, and what options are available to get to a resolution.
My ex wants our kids to go to a private school I can’t afford. Do I have to agree?
No, you do not have to agree (unless they have sole parental responsibility, in which case they can make that decision unilaterally).
If your ex wants to move the children to a private school you cannot afford, you can agree, but they will need to pay the school fees in full. You cannot be compelled to pay or contribute to those school fees.
Private school fees is non-periodic child support which falls under a separate banner which isn’t catered for in the normal child support assessment process.
It is often not just the fees that need to be considered, but also the extra requirements that come with private schools – laptops, iPads, uniforms, excursions, extra curricular activities, building fund contributions and other levies that go far beyond tuition fees.
Before parents have separated they often have two incomes, one household, and are able to maintain the related expenses, and can afford the school fees. But when they separate, that affordability can become an issue and the children need to be pulled out later on.
Getting a Child Support Agreement may be best if you agree to the children going to a private school, if the fees and related expenses are to be paid in full by the other parent. Importantly, for a Child Support Agreement to be permitted, you must have at least 35% of the care of the children.
My child wants to change schools but my ex won’t agree.
Most parents ask us this as the wishes of a child may be considered. This depends on the age of the child and other factors. It is important to know that a child’s views are informative but not determinative, in Family Law matters. Just because a child’s expressing a certain view, it doesn’t mean that that view aligns with their best interests.
To learn options that may be available to assist in negotiating their wish to change schools, seek advice from a family lawyer to learn what next steps are available to them.
I want to move suburbs and it means a school change – does my ex get a say?
Unless you have Sole Parental Responsibility, both parents need to confer on major decisions like relocation and education. To understand this better, revisit the section above about types of Parental Responsibility and how decisions are to be made by co-parents. You may also be interested in reading our page specifically about relocating with children, which is linked at the bottom of this page.
Do decisions about schools and separated parents matters have to go to Court?
Family Dispute Resolution (FDR) is always the first port-of-call. Mediation is one of those options and is required before any matters will be heard before the Court. That is, unless there are family violence concerns – in which case you must get urgent legal advice.
Mediation is engaging in a process with a neutral third party who can assist parents to work through their issues, understand the other’s perspective and find common ground. While you can participate in this independently, preparation for this process is best done with insights and support from a family lawyer. Our family lawyers also support people in the mediations themselves to help with confident decision making within the mediation setting.
If the mediation is unsuccessful, then the matter must go before the Court.
The best way to avoid disputes that end up having to go to Court, is by seeking advice from professionals who regularly provide legal advice and representation in matters as specific as selection of schools and separated parents in disagreement.
The Court takes these issues seriously. Schooling is something that comes up all the time and needs to be resolved in a timely manner.
The Court will need to hear evidence and test the evidence for the bases for each parents’ position, with the best interests of the child of paramount consideration, and Orders being issued which both parents will need to comply with.
Regardless of whether your dispute relates to a child’s readiness to start, learning needs, affordability, proximity to home or work or any other reason, the best place to start is always with tailored family law advice. Whether you need urgent support because the other parent has already enrolled a child without your consent, or it is something you are hopeful you can negotiate with them on without having to go down the Court-route, advice from experienced family lawyers is essential.
When parents come to us about their concerns relating to their child/children’s schooling, we ask questions about each of your children and their individual emotional, psychological, developmental and cultural needs. We then determine if the issues in dispute are capable of resolution, and inform you of the resolution pathways available to you that are cost effective, expeditious and ensure that your child/ren receive the benefit of whatever they require to be able to meet their individual needs.
Related: Can my ex move away with my child?
We assist parents with advice about how to approach issues like school selection disputes and related matters that affect children. Our family lawyers are highly experienced in providing advice and representation for parents who require urgent assistance as well as those who need support to negotiate and resolve their issues with or without Court. To make an appointment with one of our lawyers click here or to learn more about related matters, visit this page. To make an appointment with one of our lawyers click here or to learn more about these services and related de facto separation matters, visit this page.
Disclaimer: The information in this article is general in nature and is not a substitute for independent legal advice from a family lawyer.
This information is correct as of the date of publishing and is relevant for people in these states and territories of Australia – ACT, New South Wales, Queensland, Victoria, Tasmania, Northern Territory and South Australia.
