Family law issues such as dealing with separated families and their complex family law arrangements can be difficult for schools to navigate. In this blog we explore some of the common family law questions relating to parenting and the obligations that schools may have in some situations.
Do Schools have a Duty of Care in relation to Parenting Matters?
Parents may contact schools to request access to their child or ask the school to take certain actions regarding their child’s care. However, under the Family Law Act 1975 (Cth) parents do not have absolute “rights” over their child. Instead, the Act emphasises that decisions concerning children must be made in accordance with the best interests of the child.
This aligns with a school’s duty of care, which is owed to the child rather than to the parents. As such, schools must act in a way that protects and promotes the child’s safety and wellbeing, rather than automatically complying with parental requests.
Parental Responsibility and Decision-Making for Children
Before 6 May 2024, the Family Law Act 1975 (Cth) contained a presumption of equal shared parental responsibility. If this presumption applied, the Court was then required to consider whether the child should spend equal time, or substantial and significant time with each parent.
Following amendments introduced by the Family Law Amendment Act 2023 (Cth), which came into effect on 6 May 2024, the presumption of equal shared parental responsibility has been removed. The Court is no longer required to consider equal time arrangements. Instead, the Court now focuses directly on determining parenting arrangements that are in the best interests of the child, based on the individual circumstances of each case.
How can Intervention Orders impact Parenting Matters?
Intervention-type orders are also increasingly common in family law matters in New South Wales. In NSW, these orders are known as Apprehended Violence Order (AVO) and are made under the Crimes (Domestic and Personal Violence) Act 2007. An AVO is an order that prevents a person from engaging in certain behaviour towards another person or persons, such as approaching, contacting, or intimidating them.
The interaction between family law orders and AVOs can be complex. While parenting orders made under the Family Law Act 1975 (Cth) by the Federal Circuit and Family Court of Australia will generally prevail over an AVO where there is an inconsistency, practical issues can arise. For example, where a school has concerns about a child’s safety, or in an emergency situation, the school may prioritise the immediate safety and welfare of the child.
What are Subpoenas and how can they apply to Schools?
A subpoena is a mandatory court order that requires an individual to appear in court to testify as a witness, or to produce specific documents or evidence. It is common for parents who are before the Court to request access to confidential school documents that can be used as evidence of the status of the child’s wellbeing. When a school is required to respond to a subpoena, it is important to seek independent legal advice in order to safeguard against any breaches of privacy for staff or students. There are circumstances where schools may object to a subpoena, such as if a subpoena contains confidential information, on the grounds of relevancy or any other applicable grounds. However, if no objection to the subpoena is raised the school generally should comply with its terms and failure to do so may expose the school to potential legal consequences, including being in contempt of court.
Important Considerations regarding Parenting Arrangements
Court Orders and School Pickup
In general, parenting orders will set out the time that the child spends with each parent. These orders may also specify arrangements for the collection or handover of the child, including pickup from school on particular days.
During a parent’s time with the child, that parent will usually determine the day-to-day arrangements for the child, including who may assist with care. This can include a stepparent or a new partner. As a result, requests by one parent to prevent the other parent’s spouse or partner from collecting the child from school are not commonly granted, unless there are specific safety or welfare concerns.
School Pickup without Court Orders
If the parents do not have court orders in place, there is generally no legally binding document regulating who is responsible for collecting the child. In these circumstances, schools often rely on a parenting plan or a written agreement between the parents. Schools may therefore request that parents provide written arrangements regarding collection, particularly where the parents are separated or where there is a dispute or uncertainty about pick-up arrangements.
School Enrolment
At many Australian independent or private schools, both parents are asked to sign the child’s enrolment agreement. Where this occurs, both parents are usually jointly and severally liable for school fees. This means the school can pursue either parent for the full amount, regardless of any private arrangement between the parents. In circumstances where one parent wishes to cease payment due to separation, there is no obligation for the school to change the payment arrangements.
However, a school may choose to vary the billing arrangements, particularly where the parents have reached an agreement regarding payment or where court orders provide for the allocation of school fees.
Withdrawal of School Enrolment
Under the Family Law Amendment Act 2023 (Cth) and where there is an order for joint decision making, parents are required to consult with each other about major long-term issues concerning the child, including changes to the child’s school enrolment. If the parents cannot reach agreement, either parent may apply to the Court for a determination.
Contact Us
Navigating family law parenting matters can be complex and stressful. Our experienced family law team at Etheringtons Solicitors in North Sydney are ready to guide you through the legal process with objectivity and deep care. If you need to discuss your parenting matter with a family lawyer, please get in contact or call us on 02 9963 9800.