Parental separation and schooling

Often when parents separate, the decision for the child to remain at their current school or be enrolled in a new school is a complex and vexed one.

By Annabel Murray, Head of Family Law Australian Family Lawyers (Sydney)

Sometimes parental separation occurs when a child is due to commence junior or secondary school.

Private schools attended by the child or which they were due to attend may no longer be affordable.

Sometimes the parent who paid for school fees now refuses to pay it to spite the other parent or control that parent/child.

Parental separation might result in the parent with whom the child primarily lives with, having to move to a more affordable area where there is a new school for the child.

Under the law, children must attend school unless alternate home schooling arrangements are in place. Education is compulsory once children are of school age in each state. All children need to be enrolled for schooling.

Sometimes parents are told by the other parent, or the school, that the child cannot be enrolled without both parent’s written consent. This creates more uncertainty and confusion.  However, this information is not always correct.

What does the law say?

Girl boarding yellow school bus following parental separation

If there is no parenting order to the contrary, then both parents are presumed to have equal shared parental responsibility for the child.  This means that the parents are expected to make a genuine effort to agree on the children’s education. However, if they cannot agree then either parent can enrol the child in a school. If the school is a fee-paying one, then the enrolling parent is the contracting party and will be liable for the fees to the school.

If the parents have a court order for equal shared parental responsibility, then both parents must agree to that school.  It is sensible they both sign the enrolment form to evidence that agreement.

If only one parent signs the enrolment form, then that parent is in breach of the order for equal shared parental responsibility in the absence of a parental agreement to that enrolment.

The school is not barred from accepting the enrolment nor is it in breach of the parenting order in accepting it.

For many families and children, January should be the start of a fresh new year or a new school or perhaps for some – starting school or senior school for the first time. Children benefit from the support of their parents at this time – not conflict.

If parents need help about schooling then they should seek legal advice and attend mediation to resolve the parental separation and schooling issue and focus on best meeting their child’s needs at this time.

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