One of the big decisions separated parents have to make jointly is where their child will go to school, or changes in the school they will attend. When parties cannot agree on what school to send their child to and who pays the school fees, where can they turn? Your Family Law Lawyer can help.
Which parent decides where a child goes to school?
The Family Law Act (Cth) 1975 (the “Act”) provides ‘each of the parents of a child who is under 18 has parental responsibility for the child’ (s 61C). Parental responsibility is defined in s 61B to mean all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children. Unless the Court orders otherwise, this ‘default’ parental responsibility may be exercised either jointly or independently[1]. This is the case regardless of whether the parents have separated or not.
“[T]here is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC … Once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared parental responsibility, the major decisions for the long-term care and welfare of children must be made jointly, unless the Court otherwise provides.[2]”What this means is that once the Court makes an order for shared parental responsibility, the parties must make certain decisions jointly, namely decisions that relate to a major long-term issue.
“Major long-term issues”, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to):
- the child’s education (both current and future); and
- the child’s religious and cultural upbringing; and
- the child’s health; and
- the child’s name; and
- changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent. (s 4 of the Act)
The Court can make an order allocating parental responsibility, or some part of it, to one parent. For example, the Court can order that one parent have sole parental responsibility just in respect to the child’s education, but otherwise, the parents share parental responsibility on all other major long-term issues.
In short, if:
- There are no orders of the Court conferring shared parental responsibility, either parent can make the decision and enrol the child into the school of their choice, subject to the school’s requirements. If the other parent does not agree with the decision, then they would need to take the dispute to the Court for determination, usually after participating in Family Dispute Resolution.
- The Court has made an order for sole parental responsibility to one parent, then that parent is able to unilaterally decide what school the child attends.
- the Court has made an order for shared parental responsibility, then the parties are required to consult with each other and make a genuine effort to come to a joint decision about which school the child attends. If there is a disagreement, the matter would need to be brought back before the Court for determination, again, usually after participating in Family Dispute Resolution.
The Family Law Amendment Act (Cth) 2023 will introduce changes to the Law come 6 May 2024. One such change is the removal of the presumption that parents have equal shared parental responsibility. It is yet to be seen how this change in the Law will play out in matters before the Court.
Which parent pays school fees after divorce?
By law, parents are financially responsible for their children[3]. Once separated, either parent may file for an administrative assessment of child support with Services Australia. The formula used by Services Australia to calculate the child support payable is intended to cover all the costs of a child, inclusive of (public) school fees. If a child attends a non-public school, then chances are, assessed child support will not come close to covering those school fees. Depending on when the child was enrolled in the non-public school, relative to separation, your Family Law Lawyer may be able to assist you in having the assessed child support payments increased via an internal review process with Services Australia, or help you negotiate and enter into a private agreement with the other parent to contribute/pay school fees, called a Binding Child Support Agreement (“BCSA”). Parents cannot be forced to enter into a BCSA however.
One other option is to seek a Departure Order from the Court. The grounds for departure include ‘the cost of caring for, educating, or training the child in a way the parents had intended before separating[4]. The Court will only have jurisdiction to make a Departure Order in circumstances where both Services Australia and the Administrative Appeals Tribunal have refused to make a determination due to the complexity of the issues and an objection has been lodged or where liable parent is a party to an application pending in a Court and the Court is satisfied that it is in the interest of the liable parent that an order be made in relation to the child in the special circumstances of the case[5].
What if your ex refuses to pay school fees after separation?
Your recourse, if any, will depend on whether child support is being paid in accordance with the administrative assessment regime, whether your child was enrolled at a private school before or after separation, or whether you have entered into a BCSA with the other parent.
If there is an administrative assessment for child support in place and your child either goes to a public school or was enrolled in a private school after separation without a BCSA being in place dealing with the payment of school fees, then you would not have any recourse other than your Family Law lawyer assisting you in negotiating a BCSA which could see your ex contributing to school fees. Again, parents cannot be forced to enter into a BCSA however.
In the other circumstances, however, your Family Law lawyer could help you liaise with Services Australia to either have the child support increased to cover private school fees or bring proceedings seeking compliance with a BCSA (if registered with the Court) or a Departure Order.
It can be disheartening when a parent refuses to contribute financially to the expenses of their child, especially when it comes to something as important as the child’s education. If you need help navigating school-related issues and/or child support post-separation, reach out to Watts McCray Lawyers. We would be happy to help.
Article by Rebecca McLeod and Janine Goodwin at Watts McCray Lawyers.
Rebecca was admitted as a solicitor in 2008 and has practised almost exclusively in Family Law since 2012. She grew up and remains living on the Northern Beaches and is actively part of the sporting community. When not helping clients, she enjoys baking, being outdoors and spending time with her family and friends.
Janine was admitted as a solicitor in February 2011 and a public notary in 2017. Janine aims to provide a professional and personal service to her clients, leaving them with a comprehensive understanding of their options, rights and responsibilities. Janine has lived in the Northern Beaches for over 24 years, now raising her young family in the local area.
[1] Corelli & Gunther [2015] FamCA 81.
[2] Goode and Goode (2006) FLC ¶93-286.
[3] Section 3 Child Support (Assessment) Act 1989.
[4] Section 117(2)(b)(ii) Child Support (Assessment) Act 1989.
[5] Section 116 Child Support (Assessment) Act 1989.
