Choice of school is a common issue in virtually all parenting matters. The question of where the child should attend school, day care, or kindergarten, can be a contentious topic between parents. It is always preferable that parents are able to reach agreement on this issue in the best interests of the child. Indeed, if parents have joint parental responsibility, also known as equally shared parental responsibility, then a decision as to schooling should not be made unilaterally (i.e. without the agreement of the other parent). If one parent has sole parental responsibility, then they may on their own proceed to enrol the child where they consider is best for them. But what of the common situation of parents who have shared parental responsibility but are unable to agree as to schooling? This could be in relation to a new enrolment or changing schools.
The situation may arise due to a genuine difference of opinions as to what is the child’s best interests, or it may be as a result of high conflict between the parents and the existence of entrenched positions. In all cases, avenues of non-judicial decision making should be explored first. Where communication between the parents or their respective solicitors has not been able to resolve the issues, mediation should be attempted. Many such disputes are able to be resolved through mediation. Another possibility is the obtaining of a private report from a parenting consultant on the issue of schooling. Of course, the downside of mediation is that a mediator is not able to make parties agree and the mediator is not able to impose a decision if they cannot agree. Nonetheless, mediation should be explored unless there are valid reasons not to (for example family violence).
Variation of Parenting Orders
If all attempts at private dispute resolution in relation to schooling have failed, there may be little left to try other than issuing proceedings in the family courts. This may be so even if this would entail the variation of a final parenting order, which requires that the application passes the threshold test of a significant change in circumstances (see Rice v Asplund [1978] FamCA 84). Dr Sarah Middleton provides a succinct elucidation of the applicable principles (Middleton, Sarah — “Time for a Change? Shared Parenting, Variation of Orders and the Rule in Rice and Asplund” [2006] FedLawRw 15):
Parenting orders are never final. They can be varied either with the consent of the parties or by court determination. However, where a variation is sought in contested proceedings, whether for interim or final orders, a threshold test is applied. This test prescribes that a change of circumstances since the making of the most recent parenting orders must be shown before the Court will consider granting any variation. This Rule applies whether the earlier orders were made after a defended hearing or made by consent, and is aimed at preventing a party from re-litigating simply in the hope of obtaining a more favourable exercise of discretion. Where the Court is satisfied that there is a new factor or a change in circumstances, then the parenting issue is determined in the ordinary way: the Court must weigh up the factors for and against the proposal of each party, having regard to the best interests of the child as the paramount consideration.
Where the changes sought to existing orders are of a minor nature it might be expected that the degree of change required to satisfy the threshold test would be lowered. In fact, the reverse is true. The less important or less far reaching the proposed change, the more important it is to demonstrate a change of circumstances.
Once one is satisfied as to the threshold test, the next step is to consider the merits of the proposed application. In doing so it is useful to consider previous decisions – to try and understand how the family law courts decide such matters and to understand what considerations are relevant in determining what is in the best interests of the child in relation to schooling.
Leading Case on Choice of School
Arguably the leading case as to education and choice of schools is Re G: Children’s Schooling [2000] FamCA 462 a decision of the Full Court of the Family Court. This was an appeal by the husband against orders made by Dessau J on 20 October 1999 permitting the wife to enrol the parties’ sons, “C” aged 10 and “M” aged 8, as day students at a particular private school (“School B”). Pursuant to consent orders made in 1997, the parties were jointly responsible for the long term care, welfare and development of the children. The wife was solely responsible for their day to day care, welfare and development, the children did reside with her and the husband had contact. The children had been educated at another private school (“School A”) since pre-school. The wife had always wanted the children to attend School B but the parents had agreed upon School A as a compromise. The competing applications as to which school the children should attend proceeded on the basis that matters concerning the respective qualities of the schools were put before the trial Judge by way of the opinions of the parents. In granting the wife’s application, Dessau J had regard to matters such as:
- The children having lived constantly with their mother;
- The mother having undertaken thorough researches into the two schools;
- The children’s wish to remain at School A, their good progress at School A and their reluctance to transfer to School B;
- The younger child’s physical disability;
- The travel time from the children’s residence with the mother was much shorter in respect of School B than School A;
- The mother’s intention to undertake retraining or employment and the hindering effect of the travel associated with School A;
- A Family Report prepared for the proceedings which was consistent with the mother’s view that the children would cope with a change to School B.
There are a great many cases on the specific issue of education and schooling, the below is a small selection illustrating the various issues which may arise.
Threshold Test
Marsden & Winch [2009] FamCAFC 152 was an appeal in which the court had to consider whether his Honour erred in dismissing the father’s application because he misapplied the “threshold” test arising from Rice & Asplund.
Sole Parental Responsibility in Relation to Choice of School
Hamill & Hamill [2009] FamCA 1324 was a case on the specific issue of choice of school in which the mother was given sole parental responsibility in relation to schooling but otherwise the parties continued to share equal parental responsibility for the children.
Unilateral Change of School
Josey & Meibos [2009] FMCAfam 470 where the court ordered the mother who had unilaterally changed the primary school and crèche her children were attending to re-enrol them at the school they previously attended.
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