Schooling for Children after Divorce (1)

Where and which school will a child attend...
Can one parent decide?

When parents are separated they can be faced with a complicated decision of where and which school their children will attend. In some cases this will raise the question:

'Can one parent make this decision alone without consulting, or involving the other parent in the decision making process?'

What is 'Parental Responsibility'?

'Parental responsibility' is essentially the responsibility parents of a child have in making all the necessary decisions to ensure their child’s needs are met. Such decisions affect the long term welfare of a child and include, but are by no means limited to, decisions regarding:

• Where a child lives;
• What medical treatment a child receives;
• The child's education;
• The religious upbringing of a child;
• The name a child uses;
• The protection of a child from harm;
• The child's passports;
• Marriage of a child under 18 years; etc   

Generally speaking, parents (or others charged with the responsibility for children) have, and indeed share, parental responsibility for their children, regardless of any changes to the living arrangements of the parents, or changes to their relationship. (e.g. When a child's parents separate or remarry.)

When a dispute arises between parents regarding their children, which comes within the sphere of the Family Law Act 1975 ('FLA'), that the need to allocate parental responsibility might arise. If a Court order is made in relation to a child and the order does not specifically allocate parental responsibility, or some aspect of it to one parent, then both parents retain their existing responsibilities.

Since 1996 the FLA has included a definition of the concept "parental responsibility" at s.61B as follows:

"parental responsibility, in relation to a child means all the duties,  powers and responsibilities and authority which by law, parents have in relation to children."

In July 2006, the FLA saw far reaching changes in the way the Court deals with parenting matters, and the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 resulted in the concept of "parental responsibility" as being a central tenant embodied in the legislation. As a result of the changes the FLA, now expressly presumes that both parents have "equal shared parental responsibility" for their children.

Despite the recent changes and the concept of equal shared parental responsibility being introduced, Family Court judges and Federal Magistrates have always focused on matters which affected the long term care, welfare and development of children. There is nothing to suggest that the manner in which the Court has dealt with matters concerning the long term care of children is different to general community perceptions concerning "parental responsibility."

Another consequence of the 2006 amendments to the FLA was the introduction of the concept of "major long term issues". These issues are regarded as matters or decisions which are quite separate from those which affect children on a day to day basis, e.g. what time a child goes to bed or what a child might wear, or what activities a child’s does on any given day. There is no requirement for parents to consult on issues that are of day to day nature.

However, having said that, there are some matters which might normally be regarded as day to day issues, but which have the potential of being major long term issues. For example, what a child eats during time spent with a parent is normally a day to day issue and a matter for the parent, in whose care the child is at the time, to be responsible for. But, if there is a significant issue with a particular child's health and diet, then the decision as to what the child eats has the potential of being a major long term issue which needs the consideration, cooperation and joint involvement of both parents.

How our Lawyers can Help
Divorce Lawyers Brisbane can mediate with both parents to negotiate suitable schooling arrangements for children. An in depth knowledge of law in the area of parenting after divorce can help quickly lead to solutions that are in the best interest of any child involved. Contact us now for a Free Consultation with a Divorce Lawyer and find out how we can help with your situation.