Schooling for Children after Divorce (2)

What role do "Major Long term Issues" play in deciding on children's schooling

'Major long term issues' are now contained in a non-exhaustive list s. 4(1) of the Family Law Act (FLA). This section provides that: "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 issues of that nature about:  

a)    The child's education (both current and future);
b)    The child's religious and cultural upbringing;
c)    The child's health;
d)    The child's name;
e)    Changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.”

So, while the concepts of "parental responsibility" and the long term welfare of a child are not new, what is new is that the FLA now states in s.61DA, a rebuttable presumption that it is in the best interest of children that their parents have "equal shared parental responsibility" for them. This presumption applies in all parenting cases unless there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child (or another child in the family) or family violence.

If there is an order of the Court, for parents to equally share parental responsibility for a child, the FLA also now provides for what is to happen where a major long term decision is to be made. Section 65DAC(2) provides that where two or more persons share parental responsibility for a child, and the exercise of that responsibility involves the making of decisions about major long term issues, the order is taken to require that the decision is to be made jointly.  Both parents should be involved in the decision making process and both should make a genuine effort to make the decision together.

The FLA also imposes a further obligation on parents who share equal parental responsibility for a child, to consult each other about major decisions and that they should make a genuine effort to reach a joint decision regarding any major long term issue affecting the child.

Based on the very clear terms contained in the FLA regarding the exercise of parental responsibility and the making of decisions about major long term issues affecting a child, and the Court will take a very firm position with regards to any parent who makes any unilateral decisions which affects a child's long term welfare, where that parent has not consulted the other parent or tried to reach a joint decision on the particular issue.

Long Term Issues & Schooling
Clearly, in light of the above, a child's schooling is one of the issues now squarely addressed as a matter which requires both parents to consult each other and to make decisions regarding the child's education jointly and to do otherwise could have significant consequences particularly where there is a Court order for parents to equally share responsibility for a child.  

In a recent 2009 case before the Appeal Court ordered that a mother who unilaterally changed the primary school and day care her children had been attending, to re-enrol them in the school and where they were before: Josey & Meibos [2009] FMCAfam 470 (O’Sullivan FM).  The Court determined it the mother had not fulfilled her parental responsibility and that she did not facilitate the father in his responsibility by not involving him in the decision to changes schools, and that it not in the children’s best interest because the children would now spend less time with their father as a result of the change in schools.

Beware!

CHERYL-MAREE BENTLEY
(Family Lawyer Specialist in Brisbane)