The information provided below is general in nature and should not be relied upon legal advice. You should call 03 5445 1000 and speak to a lawyer at OFRM about your particular circumstances.

Family Law and children's education

Family Law and children's education

With term 2 now well and truly underway, now is a good time to debunk some of the myths surrounding Family Law and children's education.

First up, choice of school. Most separated parents are able to reach agreement on which school their children will attend. Sometimes that is by just continuing at the school already enrolled, or carrying out previously agreed plans.

Often the ability to pay school fees becomes a determining factor, especially when life becomes more expensive post separation.

However, sometimes agreement cannot be reached and then we need to think about how the law will be applied. Thinking about what a judge would do is often helpful in assisting parents to reach agreement.

There is no legal presumption that favours the parent who the children are living with being the one who decides which school — rather the Family Law Act provides the decision between competing proposals must be made on the basis that the best interests of the children is the paramount consideration.

Offering to pay the fees or a bigger share of the fees does not add weight to a parent’s proposal, although the court will be interested to know that the financial commitments for the proposed school can be met fairly by the parents on an equitable basis given their income and financial resources.

The types of things the court looks at in determining which school includes things like the prior intention of the parents, religion and cultural traditions, the amount of travel involved and the ability of the school to meet any special needs or interests of the children.

The court requires that proper regard must be had to the wishes of the children but there is no presumption that a decision must accord with the children's wishes. The approach the court has taken in past cases is quite circumspect about children's wishes, especially as children can put higher emphasis on things like friendship groups that is less of a factor for them in hindsight.

These days, parents often turn to published Naplan results as an argument for or against a particular school. Such results are only one factor the court would consider and is usually outweighed by information regarding he school that is more specific for the individual child such as for a child talented in maths, that they have a maths extension program or for a child struggling with literacy, they have a reading recovery program.

So what should you do on a practical level?

It's important to not leave such discussions too late as time pressures if you don't sort it out early might mean you are forced into compromises you wouldn't have made if time was on your side. As a rule of thumb you would want to have an agreement on school reached well before school orientation days and interviews start which can be as early as term 1 for grade 6 to year 7 and usually term 3 for Prep. Therefore starting the discussion before kinder and grade 5 start is not excessive.

You should thoroughly research schools to form your own opinion as well as researching the schools your ex prefers. Get the information packs, attend open days and information nights, talk to parents of current students. Think about what your child needs from a school. Think about how it would work practically — drop off and collection, before and after school programs, attending out of school hours functions.

These days there are even businesses which will help parents assess schools for your children.

Your children will benefit if you can reach agreement so put lots of effort into that. Attend mediation to see if you can resolve the issue — but before heading to mediation make sure you chat to us for legal advice because this is a situation where you need very specific advice.

Court proceedings may be necessary and if so OFRM's family lawyers can assist you getting the matter determined by a court on the basis of the right evidence from you in a swift and cost effective manner. Call us on 5445 1000 to discuss further.