Schools often find themselves caught in the cross-fire between warring parents in conflict with one another with respect to their school-aged children.
Common queries we receive from parents and/or schools are as follows:
What is the typical process in parenting matters?
The process for parenting matters often proceeds as follows:
- Dispute resolution. Parents attempt (and are encouraged to under the Family Law Rules) to agree on parenting arrangements without the intervention of the Court.
- Initiation of court proceedings. If parents are unable to reach agreement, either might choose to commence proceedings and file an Initiating Application (ie. a document setting out the Orders they seek from the Court) together with a supporting Affidavit (ie. the evidence supporting the Orders they are seeking from the Court). The documents can be filed in either the Family Court of Australia or the Federal Circuit Court of Australia.
- Interim hearing. Due to the significant delays in a matter progressing to trial once proceedings are filed (presently 2 to 3 years in our experience), the Court may hear matters on an “interim” basis to allow parties to obtain Orders from the Court, pending trial. The interim Orders are in place on a short-term or temporary basis – ie. until further Orders are made.
- Trial. The trial determines the final orders that should be made. At trial, the Court provides the parties with the opportunity to state their case and submit evidence as to what is in the best interests of the child.
Parenting Orders can cover many different aspects of parenting, including:
- How the parents share parental responsibility for the child or children;
- With whom the child or children should live;
- The time the child or children should spend with each parent and other significant people in their lives (for example, grandparents);
- Any communication the child or children will have with their parents or other people that they do not live with; and/or
- Any other aspect of the care, welfare or development of the children or parenting responsibility for the children, including educational (for example, the subjects in which a child is to be enrolled) and schooling issues (for example, the school at which the child is to attend).
It is important to note that, at any point before proceedings are commenced with the Court (or even whilst proceedings are on foot) parties can come to an agreement. They may choose to document their agreement in writing, such as a “Parenting Plan”, or apply to the Court and seek parenting Orders by consent – that is, the parties’ written agreement is made an Order of the Court. The Court actively encourages parties to reach agreement with respect to parenting matters, where appropriate.
How much say does the child have in where and with whom they live?
Please refer to an earlier article published by Barry.Nilsson on the topic here.
In summary, at no age can a child tell a Family Court judge or a Federal Circuit Court judge where and with whom they shall live. Parenting orders (including a child’s living arrangements) are determined by the Court, with the best interests of the child being the paramount consideration. In determining this, the Family Law Act 1975 sets out two primary considerations when dealing with parenting matters:
- The benefit of a child having a meaningful relationship with both parents; and
- The need to protect a child from physical and psychological harm.
In addition to these primary considerations, the Court must consider the child’s views and apply such weight as is appropriate having regard to the child’s age and level of maturity.
How should the school and/or school staff respond to subpoenas and other requests for evidence?
If a person refuses a request to voluntarily produce documents or give evidence at a hearing or trial, a party to the proceedings may request the Court issue a subpoena directed to that person – including school staff. A subpoena compels a person to produce documents or give evidence at a hearing or trial.
Teachers can often provide helpful and important independent information to assist the Court in determining what is in the child’s best interests, and are therefore highly susceptible to being subpoenaed. Schools are often subpoenaed to provide evidence with respect to the child, which may include:
- The progress of a child;
- Whether the child has any special needs, and how the school is meeting those needs;
- Attendance or truancy issues;
- Health issues (for example, whether the child is showing signs of abuse or neglect);
- Counselling records; and/or
- Subject selection.
We recommend that if a subpoena is served upon a member of staff, the staff member liaise with the legal advisers for their school to ensure the subpoena is compliant with the Family Law Rules, and/or whether there are grounds for objecting to the subpoena. Many schools are likely to have in place policies, procedures or guidelines with respect to evidence productions.
If school staff are requested by a parent to give a statement or provide evidence with respect to court proceedings, we again recommend that staff refer to school policy. If staff are permitted and willing to give evidence, they will likely be asked by the parent or the parent’s solicitor to prepare and swear an affidavit. If an affidavit is sworn and filed with the Court, the staff member may also be required to give evidence orally at a hearing of the matter, which may include cross-examination by the other party and/or the Independent Children’s Lawyer. The contents of the affidavit must be based on direct observations and free from any subjective or speculative comments.
Is the school a party to parenting proceedings?
Schools are not parties to court proceedings. Generally speaking, it is the parties (usually, the parents of the child), who are bound by Court Orders, not the school. It is not the obligation of the school to comply with Court Orders, nor to enforce Court Orders or mediate between parents.
However, the Family Law Act 1975 (Cth) provides that a person who is not bound by an order affecting children (eg. a school staff member) is taken to have contravened the order if he or she has:
- Intentionally prevented compliance with the order by a person who is bound by it; or
- Aided or abetted a contravention of the order by a person who is bound by it.
As such, a staff member who is complicit, or knowingly participates, in a contravention of a Court Order with respect to children, is taken to have breached the order (unless they had a “reasonable excuse” for doing so).
What if there are no Family Court Orders in place in respect of a student?
In the absence of Family Court Orders, each parent has “equal shared parental responsibility” for a child - they are required to consult with one another and make joint decisions regarding long-term issues, including educational and schooling issues.
This means that where there are no Family Court Orders in place, both parents are permitted to attend at school activities and be provided with information and report cards with respect to their child. Both parents are entitled to be involved in their child’s schooling, and both parents must agree and authorise a child’s enrolment and/or withdrawal from a school. If a parent attends at the child’s school and their behaviour is of concern, politely ask that the parent leave the school. If they refuse to do so, it would be appropriate to call the police, and contact the other parent.
If there is a Domestic Violence Protection Order in place, however, and its terms include that a parent is prohibited from attending at the child’s school, or being within a certain distance of the child, and the parent does so, it is appropriate to call the police. Although it is not the school’s role to enforce or police Protection Orders, the school may contact the police on behalf of the aggrieved (and the child). A breach of a Protection Order is a criminal offence.
A Domestic Violence Protection Order can be made upon application to the Magistrates Court of Queensland where an aggrieved party has experienced domestic violence, and where the court is satisfied that an order is necessary or desirable to protect an aggrieved from domestic violence.
Protection Orders can state that they are subject to Family Court Orders, so that parents seeking to negotiate parenting arrangements can agree that the respondent can spend time with the child, provided that the child will be safe. For example, the respondent may be required to be supervised when they spend time with the child.
What if there are Family Court Orders or Domestic Violence Protection Orders in place in respect of a student, and a parent attends at the school asking to see their child?
First, review the Court Orders you have on file to confirm that the Orders in question have been approved by the Court - that is, whether or not the Orders are “sealed”. If the Order does not display the Court’s seal, ask the parent to obtain a stamped “sealed copy” of the order from the Court.
Where Family Court Orders do not address a parent’s attendance at school - A parent may attend at a child’s school in circumstances where there are Court Orders in place which either do not provide for or expressly prohibit such behaviour. However, if a parent attends at the school asking to see their child during school hours, we suggest reminding the parent that it is appropriate for the child to be in class at that time.
Where Family Court Orders do address a parent’s attendance at school – For example, Orders may contain a specific provision addressing pick up from school and/or attendance at the school/school activities, or where changeover between parents is to occur at the school. If the Orders provide that the parent in attendance is prohibited from attending at the school without the consent of the other parent, contact the other parent (or their solicitor, if applicable), as they may be willing to provide their consent. If you cannot contact the other parent, and the Orders provide that the parent who has attended at the school is not entitled to do so, request that the parent leave. If they refuse, it is appropriate contact the police.
Domestic Violence Protection Orders – As discussed above, if the terms of a Protection Order are breached by a parent, it is appropriate for the school to call the police.
Should you be in doubt as to the correct interpretation of Orders, we recommend you contact the lawyers named in the Orders (if any), or seek independent legal advice.
What documents should a school retain with respect to family law proceedings?
It is prudent for a school to gather as much information as possible with respect to the child and any parenting matters. Information gathering, however, must be balanced with the provisions of section 121 of the Family Law Act 1975 which places restrictions on the publication of court proceedings. Parents involved in family law proceedings may be tempted to provide schools with each and every document filed with the Court, including affidavits and Family Reports. We consider that in order to avoid breaching the Act, the only court documents a school should retain on file are Court Orders and Domestic Violence Protection Orders.