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One of the most important issues that parents must resolve following their separation relates to their child’s schooling. As a result, whilst it is not the role of schools to enforce Court Orders or to mediate disputes between parents, but rather retain a focus on student education, schools often find themselves involved in family law disputes.
Parenting arrangements in relation to students may be finalised through informal discussions between parents. They may also be the subject of a Parenting Plan or Court Orders. In some cases there may be no agreement at all.
Where there are No Agreed Arrangements or Where there are Agreed Arrangements but no Parenting Plans or Order
There are many occasions (which we family lawyers do not see that often) where parents separate on a reasonably amicable basis or where, even if the separation is not amicable, parents are able to communicate between themselves and agree as to arrangements for their children moving forward. These do not need to be expressed in writing and can be an oral agreement. Family Counselling and Family Dispute Resolution has an important and very significant role to play in this area.
If there are no Parenting Plan or Court Orders, an agreement between the parties which will prevail. In the absence of an agreement, each of the parents of a child has ‘parental responsibility’ for that child. Parental responsibility in these circumstances is joint and several responsibility, that is either parent can make decisions about the child independently of the other parent and, technically speaking, a school can act on the decision of one parent. School officers, however are often reluctant to do so when they are aware of parents separation. Such responsibility survives separation and remains unless or until it is displaced by an Order made by the Court.
Where there is a Parenting Plan
A Parenting Plan is defined in the Family Law Act as an agreement made between parents that is signed, dated and in writing and can deal with various aspects of a child’s care including who has parental responsibility for the child, who that child lives with, spends time with and communicates with, who maintains the child, how the plan will be reviewed and any other issues relating to the care and welfare of the child. It may be appropriate for a Parenting Plans to be restricted to a limited time period, e.g. 12 months, as a child’s needs are likely to change as they get older.
There is no requirement for registration of Parenting Plans. Further, there is no requirement for independent legal advice to parties entering into a Parenting Plan. Generally, they are entered into by parents who are on good terms with each other who want a written record of the agreed arrangements. Where there is a Parenting Plan in place, schools should request signed and dated copies of the same.
In notable contrast to a Parenting Court Order, a Parenting Plan is not enforceable by a Court. If one parent does not adhere to the terms of the Plan, the other parent may have to try to renegotiate or make an application to the Court for Orders.
In some circumstances, it may be appropriate for parties to have a Parenting Order and Parenting Plan, covering different issues. For example, the Order may cover significant issues such as parental responsibility, were a child lives and how much time the child spends with another parent, whilst a Parenting Plan may cover matters parents may seek to vary from time to time such as the type and regularity of communication between the child and other people, or arrangements for particular occasions.
Where there are Court Orders
Parenting Orders can deal with various aspects of a child’s care including who has parental responsibility for the child, who that child lives with, spends time with and communicates with, and any other issues relating to the care and welfare of the child. Where there are Orders in place, schools should be given copies sealed (stamped) by the Court.
Where the Court Order refers to sole parental responsibility, that parent is responsible for making major long-term decisions about the child generally or in relation to the issues listed. Where the Orders refer to equal shared parental responsibility, parents must make major long-term decisions together or at least in consultation with one-another. Where the Orders are silent on parental responsibility or decision-making (although this is unlikely), a school can operate on the basis that both parents can make decisions independently.
Once Orders have been made by the Court, whether they are made with the consent of both of the parents, or whether they are made by a Judge after hearing all of the evidence, they have the same force and effect and must be complied with.
If one parent alleges the other has breached an Order, then he or she may decide to file a Contravention Application seeking to have the other dealt with for breach of the Order. Contravention proceedings are quasi criminal proceedings, in that the allegedly offending parent is “charged” with the breach, in a similar manner to criminal offence. He or she must admit or deny the charge, or admit the charge but claim a “reasonable excuse”. The Family Law Act contains a range of penalties if a parent is found to have breached a Parenting Order, the most serious of which is a gaol term.
Where parents have provided the school with a Parenting Plan and/or Court Orders, the document dated most recently will prevail unless earlier Orders provide that they can only be varied by subsequent Court Orders and not a Parenting Plan.
Despite Parenting Agreements, Plans and Orders, so as to avoid conflict, a school may decide that it is in the school’s and the student’s best interests to ensure both parents consent in writing to:
• enrolment in the school;
• the name the child is enrolled under;
• excursions outside the school premises;
• curricular and extra-curricular activities the child participates in;
• any school counselling the child participates in;
• who can collect the child from school;
• who can receive information about the child; and
• who can attend school events,
among others. A school may also wish to have rules which require the provision of all information about a child to both parents, notwithstanding parental responsibility and provided that there is no risk of harm.
Associate, Watts McCray
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