A common disagreement between separated or divorced parents is what school children should attend and if it can’t be agreed, who gets to decide which school the children should attend. Separation and divorce can also sometimes lead to a parent wanting to change a child’s school due to a change in their financial circumstances or a change in the suburb that they live in post-separation.

Your Obligations and Parental Responsibility

Parental responsibility refers to parents’ obligations in relation to “major long-term decisions” for children. Whether your children live with you for more nights than the other parent or not, decisions relating to a child’s current and future schooling, religion, changing their name or living arrangements which make it significantly more difficult for the child to spend time with the other parent, are all major long-term decisions which need to be made jointly by both parents. This means that the decision of what school your child should attend or any changes to their current schooling falls under your parental responsibility.

The Family Law Act provides a presumption that both parents have “equal shared parental responsibility” for their children. This means that all major long-term decisions are to be made jointly between the parents. This presumption is presumed and is the starting point when the Court makes a parenting order. The presumption applies irrespective of whether your child lives with you or their other parent more of the time than the other. It is not contingent on children living with their parents in an equal time arrangement.

Schooling

The issue of what school your children should attend and any changes to their school falls within your equal shared parental responsibility. What this means for parents is that you and the other parent need to discuss and agree on the school that your child should be enrolled in and attend.

If you can’t agree, you are required to participate in a mediation prior to filing an application with the Federal Circuit and Family Court of Australia. An Application being filed with the Court is a last resort and we urge parents to reach a decision without recourse to Court.

If the Court is required to decide on what school your child should attend, some considerations that the Court and you as parents will need to consider are:

• Where the children currently attend school and how they are progressing at that school. Are there any issues with their performance at their current school?
• The location of the proposed school including how far it is from both parents’ residences and workplaces and is it practical for both parents and the child to get to and from the school?
• If your child has special needs, are there programs or facilities at the proposed school that will cater for their specific needs?
• Does your child have siblings attending the proposed school?
• If the proposed school the school that your child’s friends are also attending?
• If your child is older, what are their views about attending the school?
• Are there any cultural or religious factors associated with the proposed school?
• If you are proposing a private school, what are the fees and who will be attending to payment of the fees? The Court will not make an order for a child to attend a private school if the parent pressing for the private school is proposing that the fees are to be paid equally but the other parent cannot afford the fees.

The Court will consider the above and make their decision based on what it considers is in the best interests of your child. This is highly discretionary and may not result in the outcome you desire.

If you become aware that the other parent of your children has enrolled your children in a school without your consent and there is no parenting order of the Court in place that provides for that parent to have “sole parental responsibility”, we suggest that you contact our office on (07) 3532 3826 or info@pcfl.com.au to seek legal advice from one of our experience Brisbane family lawyers.