It is common for separated parents to disagree about the school their child should attend. If you find yourself in this situation, try to engage in a constructive discussion with the other parent about your child's needs and interests. You also need to consider whether the location or cost of certain schools makes them unfeasible. However, we do appreciate that is not always possible, especially in the emotional period after separation. If you and your former partner can't agree on what school is best, what can you do?
Equal shared parental responsibility
Under the Family Law Act 1975, there is a presumption that both of a child's parents have equal shared parental responsibility for the child. This means both parents have an equal say in making decisions about major long-term parenting issues, including which school a child attends.
The presumption applies regardless of the actual time the child spends with either of their parents.
What schools should I consider?
It can be very confusing for parents to select schools given how many options are available. We have listed some issues below for parents to discuss and consider.
Has your child expressed a preference for certain subjects or areas? For example, if they love studying music and playing instruments, are there any schools that will encourage their interests?
The location of the school is an often-disputed issue. Of course, the school does not need to be precisely in-between the parents' residences. However, if both parents are involved in delivering and collecting the child from school, they should select a school that is at least reasonably convenient to both of them.
You should be realistic about the costs associated with attending certain schools and whether the other parent and you can meet their fees. Generally, school fees increase year to year; they do not reduce. You need to ensure the costs of the school can be met from your respective incomes, or by one of the parents (if that has been agreed). Don't forget there can also be other costs to consider, such as school levies, uniform costs, technology fees, books and stationery expenses, and camp fees.
You may desperately want your child to attend a particular school. However, if the fees are prohibitive, you should instead consider other schools that are more affordable. This may in fact then resolve the dispute between you and your former partner.
You can access an earlier article we prepared on the payment of school fess, by using this link.
How do I discuss schooling with the other parent?
We encourage parents to discuss the issue at an early stage and preferably before either of them has formed a fixed view about the school they want their child to attend.
Once parents have mentally selected a school for their child, it can be difficult to persuade them to consider alternate options.
We suggest parents discuss the issue openly and calmly, regardless of how the other parent behaves. If it is not possible to do this directly with the other parent due to conflict or because of previous family violence, then a process such as mediation or another form of dispute resolution should be used.
I've tried to resolve the schooling issue but can't. What do I do?
As both parents have equal shared parental responsibility, neither parent should enrol the child in a school without the other parent's prior consent. It may be possible to place your child on a waitlist for enrolment, however, neither parent should secure a place for their child at a school before there is agreement between the parents.
If you cannot reach agreement with the other parent and there is no agreement reached at mediation, you will need to commence court proceedings to have the court determine which school your child attends.
Unless it is a matter of urgency (or falls within a narrow-range of other exemptions), you will need to obtain a section 60I certificate before you can start court proceedings. This involves participating in family dispute resolution with a recognised provider. You can contact us for a referral to a family dispute resolution practitioner or private mediator who may be able to assist.
Court proceedings should be an absolute last resort. It is an expensive and adversarial process, which typically drives parents even further apart in their views.
We strongly encourage parents to try all forms of negotiation and dispute resolution before taking the extreme step of commencing court proceedings.
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.