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The Law And You: Disputes over the best school for your child

Watts McCray Lawyers

If you and your ex-partner can’t agree on where and how your child is to be educated, you can seek orders from the Federal Circuit Court. 

Before doing so, however, it’s best to be informed on what you first need to do and what the Courts expect.

This column provides important information on the responsibilities of both parents and what the Court considers when deciding which school your child should attend.

My partner is difficult. Can I head straight to Court?

The Court expects that you and your ex-partner will first attempt to resolve your dispute or try to reach a compromise through mediation. Under some circumstances, mediation might be waived, as explained later in this column.

Where do I attend mediation?

You can attend mediation with a psychologist in a private practice, or with a lawyer or barrister. You can also attend through a government funded organisation such as Relationships Australia or Conflict Resolution Services. If you choose a barrister, remember that they cannot provide legal advice to you or your ex-partner if the mediation isn’t successful, and they cannot represent you in Court.

Do I absolutely need mediation?

The Court expects some mediation to have taken place. So if you’re concerned that your child has been enrolled at a school without your consent or if you don’t agree your child should attend a particular school, start with mediation. If the matter is urgent you may be able to seek a waiver for not attending mediation from the Court, but always first try to hold some discussions out of Court first.

What if we don’t have time for mediation?

If you haven’t attended mediation, are running out of time before school begins and/or are concerned about your child not being at school, you might be able to seek a waiver to avoid mediation. This should never be your first port of call since the Court doesn’t have much sympathy for parents who leave such important school matters until the last minute.

What if mediation doesn’t work?

If mediation doesn’t work or isn’t an option, you can apply for a Court order for your child to attend a specific school and for how school fees are to be paid.

Why do parents typically disagree over what school to choose?

Parents disagree for many reasons, including costs, whether to send the child to public or private school, how close the school is to where each parent lives, the child’s academic performance, and whether the child has access to sport and/or other extra-curricular opportunities.

We agree on the school but not fees. Now what?

If you and your ex-partner agree on which school to send your child to, but disagree over payment of school fees, you need to raise this with the Child Support Agency before going to Court.

What does the Court consider when making orders about where a child attends school?

Family law is a discretionary jurisdiction and so different judges have different views on schools. The Court’s primary concern is the best interests of the child.

To determine this, the Court must consider many questions, including:

  • What care arrangements are in place? For example, does the child live primarily with one parent or is there an equal time arrangement?
  • What are the competing proposals of each parent?
  • What did the parents intend for their child’s education before separation? Have intentions changed? If so how and why?
  • How far is it between schools proposed and where each parent lives?
  • Does the child have a view about what school they want to attend?
  • Does the child have learning difficulties or special needs? How do schools propose to manage these?
  • Is the child or either parent religious? Does this have any bearing on the schools proposed?
  • Is the child Aboriginal or Torres Strait Islander? Does this have any bearing on the schools proposed?
  • What are the financial circumstances of each parent?
  • Does the child have siblings or friends attending the schools proposed?
  • Does the child have a talent that needs nurturing? Could this nurturing take place at school or is it required outside of school?
  • What is each school’s academic performance?
  • What school has the child previously attended? Are the schools proposed feeder schools?
  • Do the schools offer before and after school care options (if required)?

Need help resolving disputes over schooling? We can help you develop a strategy that works and are expert mediators. So if you and your ex-partner can’t agree on where your child should go to school, come and talk to one of our lawyers at Watts McCray about how to manage and resolve this in the best interests of your child.

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This expert column was prepared by Catherine Coles, Senior Associate, Watts McCray Lawyers Canberra.

This is a sponsored editorial. For more information on sponsored editorials, click here

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Watts McCray Lawyers

Watts McCray is a leading firm of family and relationship lawyers. We have the largest number of accredited family law specialists in Australia and are backed by years of experience. Our lawyers have the skills to provide you with sound, practical advice about issues such as relationship changes and separation, property and financial matters, parenting arrangements after separation, child support and divorce. Watts McCray can also provide you with legal help if you want to resolve matters without having to go through Court. We can help with negotiation, mediation, collaboration and arbitration services as well as the traditional Court litigation process. We can also help with your estate planning and wills. Call us on
(02) 6257 6347 for more information and for tailored services to meet your specific legal needs.

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