For separated or divorced parents, the issue of deciding on where the children should go to school can become a challenging one. If there was no prior agreement, then selection of a school can become a new battleground, even when parents might agree on just about everything else. When co-parents can’t agree on schools, courts can step in to make a decision. An application can be brought on a “specific issue” such as schooling when parents can’t agree on schools or other major long-term issues. Let’s take a look at what happens if co-parents can’t agree on how the kids should be educated.
When it comes to schooling decisions, it boils down to the question of parental responsibility. There is a presumption that parents hold equal shared parental responsibility under the Family Law Act 1975. This means they must consult with each other and make a genuine effort to reach a joint decision on major long-term issues. Unless the presumption of equal shared parental responsibility is rebutted (such as for reasons of family violence, or the Court makes an Order for one parent to have sole parental responsibility), then both parents have an equal say in decisions on long-term parenting issues, including schooling. This presumption of shared parental responsibility exists irrespective of how time with the children is divided.
If parents can’t agree on schools or other long-term decisions for their kids, courts can make orders for sole parental responsibility generally, or they can make orders conferring a parent sole parental responsibility on a single issue, such as schooling, while the remainder major long-term issues are to be decided jointly.
When handling a schooling dispute, key factors the courts will look at include the child’s current schooling arrangements and how they are working, the geographic locations of proposed schools in relation to the parents’ homes, any cultural or religious factors to consider, the costs of fees and parents’ ability to cover them, and children’s views and wishes. Some children express a strong preference for a particular school, especially if they are interested in particular areas, such as drama or music.
Common reasons behind disputes over schooling include location and cost factors. Location can be an issue if one parent wants to move a considerable distance away from the other. Or, if a proposed school is going to be inconvenient for a parent who shares drop-off and pickup duties. A school doesn’t have to be exactly halfway between parents’ homes, and in fact that may not be possible due to school catchment areas, but it does have to be practical for the child and the parents.
Costs can become relevant in cases where one parent wish the child to attend a private school and the other parent prefers public schooling. Parents and courts have to take into account the reality of costs and fees of attending certain schools, noting that fees typically always increase annually. If fees are likely to be prohibitive for parents or cause a parent hardship, the courts will be unlikely to make orders enabling a parent to enrol the child in private school, unless the parent who wishes the child to attend the private school is willing to cover the costs. When a decision has to be made about private schooling as opposed to public schooling, courts often undertake an analysis of the parents’ respective financial circumstances.
Many parents desperately want their child to attend a particular school for a range of reasons other than location and costs, though. Perhaps the school has been the traditional choice in a family. Perhaps the school is particularly well regarded academically or for sports. Perhaps a child’s special needs might be better catered for.
But whatever the parents’ desires for why they wish the children to attend a certain school or type of school, the courts will always look at what is in the children’s best interests, not their parents’.
Litigating schooling as a single issue
A recent matter, Finley & Finley (court-given pseudonyms), involved a rural family with two children aged 10 and 14. The parents, described as “exceptional parents” by the court, agreed on everything regarding their children, except that they can’t agree on schools. As a result, the family headed to court to have a judge decide on this one major long-term decision.
In this case, both parents want the children to have a private education but they just don’t agree which school. The father wants the children to attend a full-time boarding school which has been the traditional choice in his family. At a more abstract level, the father also believes attending full-time boarding school in the city “will provide both children with a wider perspective and exposure to greater cultural difference than remaining in the rural area”. Meanwhile the mother wants the children to attend a local rural school, either as day or weekly boarding students. She believes “that children should remain within the family, and have close contact with their parents growing up, to give them a solid basis for self-confidence and achievement”.
The parents had managed to achieve “impressive” amicable arrangements for property and for all arrangements with the kids. But the schooling issue had been “rumbling between them” for at least the three years since the father filed this application in relation to it.
So what’s better, full-time boarding or day school?
The court won’t be making a judgment call on which option is better, between full time boarding school or day/weekly boarding. The court pointed out “There is no basis for criticism of either position, arrived at thoughtfully.” Therefore, there is no weighing up of the merits of either schooling option generally. For example, there’s no assessment of the legitimacy or otherwise of the mother’s “firm belief that ‘parenting should not be outsourced’”. Or of the validity of the father’s firm views that full-time boarded children are raised more independent and are not “overly dependent on their mother”.
After all, these are complex philosophical and sociocultural questions that can’t be easily answered. They are not absolutes that can be ruled as “right” or “wrong” by a family court judge—especially if a court isn’t led to any empirical evidence on the merits of either option for children.
So the court did not make any judgment regarding the specific schools suggested and instead conferred the decision-making power back to the parents–by ordering that one parent has sole parental responsibility on the schooling issue.
The court is therefore tasked with working out: which parent will make the decision that is ultimately in the child’s best interests? In the Finley matter, the court made a decision based on which parent would likely make the most child-inclusive decision rather than base it on their own personal desires.
What were the children’s views?
The 14 year old daughter expressed the desire to attend the same school that her father wished her to go to. But the court noted it’s not possible to determine whether this is because the girl simply wishes to please her father or whether she “may also be genuinely interested to have that experience”.
Similarly, the 10 year old son also expressed a strong interest in attending the school of his father’s choice. Yet, again, he “may also be drawn to the shared experience with his cousins [who also attend that school]”.
The court found the father would choose the school based on his personal wish to have the children attend the extended family’s traditionally attended school and his views on the merits of full boarding. However, while the mother too would take her own personal choice into account, the court said it was “confident that the mother, who has a history of attending to the children’s ideas, feelings and aspirations would not discount the preference of either child if she considered it was genuine and soundly based”.
The court added it was “confident that the mother would set aside her own sense of loss if she did decide that either child or both should be schooled [at the father’s choice of school]”.
The mother was therefore granted sole parental responsibility with respect to decisions about secondary education for the children only. In all other respects, the parents will continue to equally share parental responsibility.
You can read the abovementioned judgment in full here.
Can’t agree on schools?
It’s a good idea to discuss schooling plans at an early stage before any firm views on particular schools have taken hold and due to potential enrolment waitlists and so on. If you and your co-parent can’t agree on schools, it’s preferable that the dispute is resolved using alternate dispute resolution processes such as mediation. If it looks like court proceedings will be necessary, make sure to seek legal advice as early as possible. You’ll have to attempt mediation first before making a court application, in any case. Unless there is an exception or the matter is urgent, you’ll first have to obtain a section 60I certificate showing participation in family dispute resolution with a recognised provider. Ideally, your dispute will be resolved at this stage.
Has your co-parent enrolled your children in a school without your consent? When both parents have equal shared parental responsibility, neither parent must enrol their child in a school without their co-parent’s prior consent. If there isn’t an order in place for your co-parent to have sole parental responsibility, make sure you seek immediate legal advice as well.
If you would like to discuss your situation in more detail, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
