The Family Law Act provides that if there are no Court Orders in place, both parents have parental responsibility for their children. This legal position remains unless it is overturned by a parenting order made by a Court.
Parental responsibility carries with it a requirement for consultation and for parents to make a genuine effort to reach a joint decision concerning major long-term issues. If parents are unable to reach a joint decision about a major long-term issue, they must seek an order from a Court for approval and must not act unilaterally.
A major long-term issue includes any change to a child’s education (both current and future).
WHAT IS THE LAW REGARDING INTERIM CHANGES TO A CHILD’S SCHOOL?
Neither parent (unless they have sole parental responsibility) should change a child’s school without the consent of the other party or an Order allowing the change being first made by a Court.
In the case of Josey & Meibos unilateral acts were taken by the mother to change the children’s school, crèche and living arrangements and the father made an application to the Court to restrain the mother from relocating the children from their existing school and crèche. The father gave evidence that he saw the children nearly every day, collecting them for and taking them to school and crèche and being involved in their daily routine of a morning and evening. The mother did not consult the father about ongoing education arrangements for the children before enrolling the children in a new school and crèche. The Court ultimately found that the mother’s unilateral actions reflect poorly on her attitude to the responsibilities of parenthood as she had taken it unto herself to make decisions in relation to the long term interests of the children by changing their school/crèche and altered the arrangements by which they spend time with their father. The Court Ordered that the children be returned to their original school and crèche.
This decision continued earlier authorities of the Family Court that make it clear that except in cases of emergency, the arrangements which will be in a child’s best interests should not be determined in an abridged hearing and these are the types of cases in which a child’s present stability may be extremely relevant on an interim basis.
WHAT WILL THE COURT CONSIDER AT A FINAL HEARING?
An order dealing with the school at which a child should be enrolled is a parenting order, because it is an order that deals with the welfare or development of the child.
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration.
In the case of Re G: Children’s Schooling the Full Court of the Family Court of Australia noted various factors that are to be considered by that Court on the issue of a change of school, they include:
- the wishes of the child, where appropriate;
- any prior agreement in relation to schooling;
- any change to the existing arrangements;
- any anxiety which the child may experience as a result of changing peer groups;
- the views of the parents about the aspect of change upon the child;
- the travel time to school;
- the costs of education; and
- any particulate issue that may have a real impact upon the child and his immediate schooling and social environment.
The above list of matters is not exhaustive. They vary from case to case and are always to be tailored to the individual needs of a child.
In the case of Re G: Children’s Schooling the court went on to note:
“…there is considerable substance to arguments … that weight should be given to the travel commitments associated with the school that the children attend. Where a decision must be made by a Court in circumstances where parents are unable to agree as between two schools which are prima facie very satisfactory, we see advantages to the children attending a school which is closer to the children’s residence … it is desirable to enhance the ease with which a parent who assumes the bulk of day to day to responsibility can meet the multiple associated demands of children’s dependence on a caregiver for transport, participation and security. We do not consider that the fact of a prior agreement between the parties as to [School A] carries much weight in the changed circumstances of the family.
In the latter case of Whitton and Anor it was confirmed that a child’s best interests are the paramount consideration and the freedom of movement in that case was not the most influential consideration. The Court found that “If their best interests warrant their enrolment and attendance at the same schools then that is the order that must be made, irrespective of the incidental curtailment of the mother’s freedom to live wherever she chooses. There is no direct embargo upon where the mother establishes her residence. She is only required to comply with the orders about where the children attend school…”.
All applications to change schools are complex and advice should be obtained from a specialised family lawyer. If you have any questions regarding changing a child’s school or any associated family law matter please contact our firm to make an appointment with Matthew Carney an accredited specialist in family law on (02) 4944 3322.
