Which school – who decides?
It’s almost a new year of school but some things may have changed.
Has your child’s living arrangements changed? Does your child want to change school?
Who decides where your child should go to school after separation or divorce?
Issues regarding school enrolment and getting children ready for school can often ignite disagreement and disputes between parents. Where the channels of communication have broken down, it is commonly the case that schools are called on by parents to be the facilitator or arbiter of their dispute. You should be aware, however that it is not the school’s responsibility to act as a facilitator in disputes.
Parental Responsibility
There is a presumption in the Family Law Act (that can be rebutted) that it is in the best interests of a child that their parents have equal shared parental responsibility and therefore should jointly make decisions about “major long term issues” that affect the child, including but not limited to a child’s current and future education, religion and changing their child’s name.
It will not considered to be in a child’s best interests for their parents to share parental responsibility if one of the parents is found to have abused the child or has been the perpetrator of family violence. In those circumstances, the court will usually make an order granting sole parental responsibility over “major long-term issues” to the other parent.
Enrolment
Unless there is an Order for sole parental responsibility in place, the decision to remove a child from and/or enrol a child in a school based on a child’s serious behavioural problems (e.g. suspensions and expulsions), and/or academic achievement is a “major long-term issue”, relating to a child’s education that should be made jointly by both parents.
If you sign an enrolment contract at a school unilaterally, without the other parent’s involvement or consent, and the matter later comes before the court, your action in doing so may seriously affect your credibility in the court’s eyes. The court may consider such action demonstrates a lack of willingness and ability to involve the other parent in the child’s upbringing and facilitate the relationship between the child and the other parent.
In addition, you should be aware that if only one parent signs the enrolment application, the school’s contractual relationship is only with that parent. This means the school will generally be unable to look to the other parent for payment of the tuition fees (irrespective of any oral/informal agreement between the parents about fees).
If you are the parent who is refusing to agree for a child to attend a particular school, it is important to note that a school is not precluded from accepting the enrolment of the child simply because only one parent signed the application. The school is not responsible for ensuring that parents comply with their family law obligations.
Access to School Information
It is generally the case that the “primary carer” parent will receive information from the school such as student reports, student photographs, newsletters and other documents regarding the child. If communication between separated parents has deteriorated, commonly such information is not passed onto the other parent (the “non-resident” parent).
In such cases, it is appropriate for parents to request that the child’s school ensure that each parent is provided with a copy of the child’s report card, newsletters or any other written report in respect of the child. By ensuring that the school itself is the conduit of information, you are likely to avoid future conflict with a parent who has not passed on or relayed information appropriately. Be aware that the school may render an administrative charge for duplicating information, which should ordinarily be shared, failing which the school is likely to request that it be paid by the “non-resident” parent requiring the duplicates.
However, if there is a specific order for one parent to have sole parental responsibility, the school is not obligated to, and will not, provide the other parent with access to school information in respect of the child unless they have a written authority from the parent who has sole parental responsibility.
Changing a Child’s Name
As noted above, changing a child’s name is a ‘major long-term issue’ which needs to be made jointly by both parents.
If you change your child’s name unilaterally, for example when you enrol a child at a school, without the other parent’s consent, and the other parent brings the matter before the court, you could face criticism from the Judicial Officer determining your dispute.
Be aware that the court does not make orders changing a child’s name lightly and will only do so after consideration of a number of factors that promote the best interests of the child. The welfare of the child is the paramount consideration. Some matters for consideration have included:
- Short and long term effects of a change of name.
- Any embarrassment to the child.
- Any confusion of identity.
- Effect a change in name would/may have with the parent whose name the child bore during the parties’ relationship.
- The time that the child spends with each parent
- The degree of identification that the children has with each parent
- The degree of identification with any new sibling
- Each parent’s wishes.
Conclusion
It is important to try and discuss the above issues with the other parent well in advance of the school year commencing so that, if agreement is not reached, you have sufficient time to seek independent legal advice from a specialist Family Law solicitor regarding what steps you should take moving forward.
To reiterate, the school’s role is not to be the facilitator in a dispute, interpret or decipher Family Court orders, nor to act as a police officer or judge when parents disagree about matters pertaining to their child’s education.
Family Law matters can be quite sensitive, especially when children are involved. To be clear about your options and achieve the best outcome possible, please seek independent legal advice. We offer a fixed-fee initial consultation, click here to book. Please phone Michael Lynch Family Lawyers today on (07) 3221 4300 to arrange.
