Who decides where a child goes to school when co-parents can’t agree?
The issue of where a child goes to school – and who decides – is not an unusual discussion for many families worldwide. There is a lot to consider —what’s in the curriculum, locality, private or public, religious, government-run or independent.
Is the school known for its values? Academic results? Do they have creative programs that will bring your children’s skills to life or the moral values that best represent the person you would like to see your children grow up with? Do they offer languages, cultural or religious themes that, as a parent, you feel would best align with your child’s education?
The difficulties of deciding on where a child goes to school.
Even in ‘intact’ (partnered) families, there may be varied views, which can, at times, result in disputes or conflicts about which school children should attend. Co-ed or combined? The school you ( and/or your grandparents attended) or a seemingly progressive Steiner school set in the hinterlands?
There is no universal ‘right’ answer, which is probably why so many options exist – and why parents can find it so hard to agree. It can also depend on factors like a child’s special interests or needs.
After a divorce or separation occurs, separated parents may disagree on where to send their child to school. Often, this is about whether the children attend a state-funded school or a private school. Parents of intact families generally need to resolve these issues between themselves.
So, if separated parents can’t agree, who has the right to decide where a child goes to school?
The issue of choosing a child’s school becomes far more complicated when parents separate and not only have different opinions but sometimes distance between their separate homes. Financial constraints also frequently arise surrounding private school fees, given the costs associated with two separate households rather than one.
In most cases, parties are able to reach a compromise and resolve the matter through mediation and/or with the assistance of family lawyers and legal advice. What happens if one parent decides to enrol a child in a school without the other parent’s consent? And if a child’s parents simply can’t agree, what is the best course of action to take?
The Family Law Act & parental responsibility.
Under the Family Law Act, ‘parental responsibility’ refers to the legal duties, powers, and responsibilities parents have for their child’s upbringing. Generally speaking, parental responsibility remains shared when parents separate, meaning decisions about major long-term issues, such as where a child attends school, require both parents’ consent unless a court order states otherwise.
When disputes arise, the Federal Circuit and Family Court of Australia may need to intervene to determine schooling decisions, particularly when parents cannot agree. Courts consider the best interests of the child, including their educational needs, the ability to pay private school fees, and the child’s relationship with each parent.
Shared parental responsibility or sole parental responsibility?
In cases of sole parental responsibility, only one parent has the authority to make schooling decisions, such as choosing or changing a child’s school or signing an enrolment form, without the other parent’s consent. However, for shared parental responsibility, a joint decision is required.
If there is evidence of family violence or safety concerns, the Court may grant sole decision-making powers to one parent.
Disputes often require mediation or the assistance of a family lawyer to resolve issues such as schooling decisions, school fees, and parenting arrangements. Genuine effort is encouraged to avoid prolonged court involvement.
Out-of-court legal solutions to reach an agreement with your ex-partner about your child’s schooling.
If separated parents can’t reach a decision about their child’s enrolment and resolve the schooling issue, an Application may need to be made to the Federal Circuit and Family Court of Australia seeking a Court determination. It’s really important that both parents make a genuine effort to resolve matters when they have equal shared parental responsibility before bringing the matter to Family Court.
Mediation or dispute resolution can be a great option for parents who are struggling to make a choice together. These options can help both parties reach an agreement and show that one or both parents have tried to reach an agreement with their former partner. The Court will generally want evidence that parents have made an effort to resolve the matter before they will accept an application to decide on their behalf.
Still can’t decide? The Family Court may need to make the decision.
If you and the other party have joint parental responsibility, you both need to make an agreement before you enrol your child in school. Doing so without the other parent’s permission is likely to cause issues, especially if you have parenting orders in place. If you do decide to apply to the Court to determine the matter, the factors that the Court is obliged to consider are set out in the Family Law Act 1975 (Cth) and precedents in decisions the Court has made in similar cases.
The Court has to consider the competing proposals of the parents, weigh them up against each other, apply the law and ultimately make a decision that is, in the Court’s opinion, in the best interests of the child or children. The Court has consistently held that there is no presumption as to what is in the best interests of a child when making parenting orders, including about education, and that prior agreements between the parents about schooling and other parenting matters can be considered but are not binding on the Court and that the Court has full discretion to make Orders that it considers best promote the child/ren’s best interests.
Each case turns upon its own facts, and there is never any guarantee that the Court will make an Order one way or another. Parents are obviously encouraged to reach an agreement about parenting matters, including schooling, if at all possible, as they usually know what is best for their own children.
