With the start of the new year, many children are looking forward to starting their very first day at school. Unfortunately, what should be a simple process can sometimes turn into a maze of negotiation when separated parents are involved.

Section 61C of the Family Law Act 1975 (Cth) provides that each parent of a child under 18 has parental responsibility for that child. That means that, absent a Court Order to the contrary, decisions about major long-term issues affecting the child, including the school they should attend, must be made jointly by the child’s parents.

This is an issue that parties should try to discuss well in advance of their child’s first day at school, as most schools will require that an enrolment form be signed by each of a child’s parents. If there is no agreement about the school a child will attend, the only way to decisively resolve the matter is to seek an Order from the family law courts. In considering such an application, the Court will consider matters such as:

  1. the intentions of the child’s parents prior to separation (including any enrolment forms signed pre-separation);
  2. the parties’ financial situation if the proposed school is a fee-paying school;
  3. whether the particular child has an special needs or interests which need to be catered for by their school;
  4. whether the child has a history of attending a particular school, including their peer relationships and integration with a particular school; and
  5. the practicalities of how close the school is to each parent’s residence; and
  6. the burden on the child and the cost involved in them travelling to and from the proposed school each day.

Unless the matter is urgent, the parents will need to attempt family dispute resolution and obtain a Family Dispute Resolution Certificate prior to making an application to the family law courts.

If the proposed school has school fees and it was always intended by the parents pre-separation to send their child to a fee-paying school, a parent applying for school attendance Orders should also consider seeking a child support departure Order. Such an Order can compel another parent to make a financial contribution towards their child’s school fees above and beyond their assessed child support amount.