Separated parents frequently disagree about their contributions towards their child's private school fees. A parent's obligation to contribute to fees in part depends on their intention at the time the child was first enrolled, which is often prior to separation. To minimise future disputes, schools should ensure their enrolment forms allow parents to convey their wishes.
Child support is governed by the Department of Human Services. If a parent seeks a child support assessment or applies for a government parenting payment (which should automatically trigger an assessment), the Department uses a formula to calculate a parent's child support obligations.
The main variables for the formula include the:
number of children
taxable income of both parents
number of nights the child spends with each parent.
A link to the online estimator is here: https://www.humanservices.gov.au/individuals/enablers/online-estimators
The formula does not reflect whether the parents pay disproportionate amounts for a child's private school fees or any other additional expenses they may incur, e.g. equipment costs for children with special needs.
Therefore, many separated parents find themselves paying child support to the other parent in addition to their child's private school fees.
Review of child support assessment to reflect payment of school fees
Parents can seek to vary an assessment via the internal review processes available through the Department or, in certain circumstances, by applying to a court.
The parent seeking the change can argue that the child is being educated in a manner that was expected by both parents and this should be reflected in a variation to the child support assessment.
The success of the argument often hinges on whether:
- both parents agreed that the child attend a private school
- there is evidence that the issue of school fees was discussed and of what the parents' intentions were.
It is common for parents, while they are together, to agree that their child attend a private school; only for one to change their mind after they separate. In most cases, in our experience, both parents will be deemed to have consented to the child attending the school and liable to contribute proportionately to the fees.
Alternatively, sometimes parents separate before agreeing to a child attending a private school. There are cases where it has been held that a parent's post-separation signature on an enrolment form was not an indication of consent to pay fees; only to facilitate the enrolment.
Aside from creating conflict for parents, this uncertainty also affects private schools directly in terms of the collection of payments from parents.
Recommended approach by private schools
We recommend that all private schools incorporate the following questions and statements in their enrolment process:
- Do both parents agree that the child will attend the school?
- Are the child's parents in a relationship/marriage or have they separated?
- Which parent is responsible for the child's school fees?
- Is there an agreement about the proportionate payment of school fees, or is one parent solely responsible for them?
- Are the parents aware that the school's enrolment process forms a legally binding contract between the parents and the school, regardless of any future child support dispute between the parents?
- Are the parents aware that, if they separate, this does not waive their obligation to pay the school fees in accordance with the terms of their contract with the school?
- If the parents are unaware of the implications of signing the school's enrolment forms including the future payment of fees, they should obtain independent legal advice.
In our experience, requiring parents to more thoughtfully consider the ramifications of signing enrolment forms will reduce future conflict between parents, as well as with the school.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.