By Jamila Buchanan, Associate
Choosing a primary or secondary school is exciting! Until it becomes a flashpoint between separated parents.
If you are worried the other parent will disagree with your proposed school, the good news is there are clear principles and practical steps that can help you keep things child-focused and avoid a costly Court process.
Do You Need to Discuss Education with the Other Parent?
Yes. Schooling and educational decisions are major long-term issues because they affect a child’s wellbeing, development, and individual needs.
In family law, schooling decisions are treated as a major long-term issue. That matters because, unless a Court Order says otherwise, both parents generally have joint decision-making responsibility and are expected to consult each other about major long-term decisions, including about education.
[Family Law Act 1975 (Cth) ss61C, 61CA]
The Legal Test: What Is in the Child’s Best Interests?
If parents are unable to agree, the decision is guided by the child’s best interests pursuant to Section 60CC of the Family Law Act 1975 (Cth), which includes factors such as:
The child’s safety (and the safety of each person caring for the child), including any history of family violence or neglect and any family violence intervention order;
Any views expressed by the child, which are balanced with the age and maturity levels of the child to determine the weight their views should be given;
The child’s developmental, psychological, emotional, and cultural needs;
Each parent’s capacity to meet the child’s needs;
The benefit to the child of maintaining a relationship with each parent and any other person significant to the child (where it is safe to do so); and
Any other matter relevant to the child’s best interests.
As set out in the notable case in relation to schooling issues, Re G: Children’s Schooling [2020], the Court must also look at the practical and everyday realities, including:
Any prior agreements between the parents about schooling;
Travel time between the school and the child’s respective homes in which they live, their school, and their extra-curricular activities;
The impact on the child’s friendships, peers, and connections they have already built;
The financial impacts to either parent attending the proposed school, including school fees and extra-curricular fees;
The stability and routine of the child;
The opportunities and supports offered by each school which may be of benefit to the child; and
Each parent’s perspective and insight into the longer-term effects on the child.
A Key “Don’t”: Keep Your Child Out of The Negotiations
Schooling discussions should be between adults, not the child. Involving a child can add pressure and stress, and it’s not their job to decide.
Practical Steps to Move Forward
If you are considering a particular school for your child, it is critical that you first raise this with the other parent ahead of time. Where safe to do so, we suggest adopting the following initial approach:
Research your proposed school. Before you present any proposal to the other parent, you need to know what the school can offer your child, the benefits, the opportunities available, the school fees, and any additional supports that may assist and benefit your child's development and growth.
Research backup schools. While this may not be your preferred school, it is critical that you consider other schooling options available to your child. Research these and prepare a comparison of the offerings by each of the schools.
Prepare a clear written proposal to the other parent that identifies the proposed schools and explains why each school is suitable for your child. This will help you both identify the pros and cons and keep your discussions child-focused.
Give the other parent time to consider your proposal. The other parent may not have considered this, or it may be new information to them. Give the other parent enough time to do their own research, attend school tours, and meet with schooling staff. This will help the other parent engage in discussions about the best schooling fit for your child and is more likely to help you achieve a more desired outcome.
If cost is a factor (for example, private schools or semi-private schools), consider how the school fees will be paid and think carefully before offering to pay all school fees. Schooling generally spans 13 years, and affordability over time matters.
If you can’t agree, or it is not safe to discuss this directly with the other parent, consider attending mediation to talk through options and concerns in a structured, safe way.
When Court May Be Necessary
If you have tried to reach an agreement and it is not achievable, or if there are significant difficulties or safety concerns with the other parent, you should engage a lawyer for advice on the legal options available to you.
If your lawyers cannot resolve the issues or the matter is urgent, you may need to file an application in the Federal Circuit and Family Court of Australia (Court) seeking parenting orders, including for schooling.
Before taking this step, you should obtain clear legal advice to ensure you understand your legal options, the Court process, and any risks of bringing an application before the Court.
Need Help Putting Forward a Schooling Proposal?
A well-framed, well-thought-out proposal can set the tone for constructive negotiations and help prevent the issue from escalating.
If you would like help preparing a clear, child-focused proposal about schooling options, or need to discuss your legal options, please contact our office for a free, confidential, no-obligation 30-minute discussion via our website or on 03 9600 3330.
The information contained in this blog post is not intended to be legal advice and is general in nature. Please obtain legal advice for your specific circumstances before relying on this blog post.