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Family Court orders: How do they affect a school? - Part 1: How Family Court orders are made

22/03/17
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This is the first article in a two-part series regarding the impact of Family Court orders in schools.  In this article, William Kelly, School Governance Reporter, writes about how Family Court orders are decided and what considerations Courts take into account when making these type of orders.

Family Court orders in Australia have a wide impact. The Family Court of Australia (Family Court) and the Federal Circuit Court of Australia deal with matters relating to Family Law and make decisions under the Family Law Act 1975 (Cth). In Western Australia, the Family Law situation is different, as they have their own Family Court which decides matters under the Family Law Act 1975 (Cth) for parties that are married and under the Family Court Act 1997 (WA) for de-facto relationships.

When it comes to schools, you would not generally associate Family Court or Federal Circuit Court orders with any function of a school. Schools are usually not party to Family Court orders, unless they are named within the order. However in practice, they are often drawn into the administration of the orders in the school context as the orders determine parental responsibilities which may have a flow-on effect within the school.

What are Family Court orders?

Family Court or Federal Circuit Court orders determine what the parties’ obligations are. In Family Law situations, the parties are typically the parents. The orders are a statement of what must be done by the parents to carry out the Court's decision. The most common orders issued in Family Law situations are financial/property and parenting orders. Financial/property orders detail the parties’ responsibilities regarding the division of assets between the parties. Parental orders detail who is going to have sole or shared parental responsibility and parenting arrangements, while also considering the child/children’s best interest.

When it comes to parenting situations, Courts will make parenting orders detailing parental responsibilities for their children.  These orders define exact times and dates when a parent has custody of the child. Although a school is not required to abide by any order as it is not a party to it, schools are nonetheless involved when the order affects how the school provides its duty of care towards the affected student. Upon enrolment, schools should ask parents or guardians if any family order is in place regarding a student. They should also request that a sealed copy of that order is provided to the school. If an order is in place, the school is then put on notice about a student's family situation, which may define the relationship between the student's parents and the school.

In an ideal world, the school's involvement would stop there. However, schools may need to get involved in the logistics or operation of the order if a parent does not abide by the terms of the order or how it affects the school's operations.

For example, schools may be placed in uncertain territory as to how to manage the parents and the practical administration of the orders and the extent of their responsibilities such as, which parent should have contact with the children and which parent has responsibility for the children during a given period.

A school's involvement in the operation of a family order is discussed more in Part Two of this series.

How does the Family Court determine responsibility?

It is useful to understand how Family Court orders are made.

The paramount duty of Judicial officers’ is to consider the child’s best interest when making a Court order. Primary considerations must include:

  • the benefit to the child to have a meaningful relationship with both parents; and
  • the need to protect the child from physical or mental harm and from being subjected to, or exposed to, abuse, neglect or family violence.

Other factors that the Courts consider are:

  • any views expressed by the child;
  • the nature of the child’s relationship with the parents and significant others in their immediate family;
  • the attitude of both parents to the child and to the responsibilities of parenthood;
  • any family violence issues;
  • any relevant current and previous orders;
  • the likely effect of change of circumstances, such as a child being separated from a parent or other significant person;
  • the capacity for a parent to provide for a child’s needs;
  • the maturity, sex, lifestyle and background of the child, including characteristics, culture and traditions of the child; and
  • any other relevant factors. 

Parental Responsibility

Both parents are assumed to have parental responsibility over their children. What this means is that both parents have the right to make day-to-day and long term decisions for their children, unless court orders state otherwise.

If Court orders are in place, normally they will stipulate equal shared parental responsibility or who has sole or partial parental responsibility. Court orders will stipulate who has responsibility for the decision making for the child and who has care of the child during what period. Court orders also stipulate:

  • where the children live and during what periods;
  • who is responsible for paying child maintenance;
  • whether there is an equal shared or sole parental responsibility;
  • exchange points; and
  • any special needs of the child that need to be maintained.

If no Court orders are in place it is considered that both parents have equal parental responsibility for their children – this includes day-to-day and long term decisions for the child.  However, other informal arrangements may be made such as parenting plans or other arrangements between the parents.

If Court orders or parenting plans are in place, it is important to note that schools should obtain a sealed copy of any current relevant Family Court or Federal Circuit Court orders or other agreements. The school should record parenting arrangements and responsibilities to ensure the welfare of the child is always prioritised.

Parenting plans and consent orders

A parental plan is a formal arrangement where both parents decide on the care, welfare and development of the child. Parental plans are made by agreement, recorded in writing and signed by both parents. Parenting plans deal with matters such as:

  • which parent the child will reside with;
  • the contact the child will have with the other parent;
  • who is responsible for the maintenance of the child; and
  • any other aspects of parental responsibility and care for the child.

Unfortunately, parenting plans are not legally enforceable; but Judicial officers have regard to their terms when terms of parental plans are breached and future Court proceedings commence.

Consent orders occur when both parties reach agreement about parenting and financial/property arrangements and formalise the agreement by making it binding upon both parties. These orders are filed and sealed by the Court making them legally enforceable upon both parties.

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About the Author

William Kelly

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