Family law is generally not considered an area which affects the functions of a school in most capacities. However, Family Court of Australia (Family Court) and Federal Circuit Court of Australia (FCC) orders made during family law proceedings often draw schools into the administration of the orders. The orders may stipulate how schools should communicate with relevant parties about shared parental responsibility or guardianship of the children in their care, or seek permission or make decisions for the ongoing health, safety and welfare of the students in their school.
Family Law and Parental Responsibility
It is useful for schools to understand how the Family Court or FCC makes court orders and what they usually contain.
In family law, court orders can be made regarding the obligations of the parties, either interim orders (until a final court date has been decided), final orders (required to be upheld until otherwise changed by further court order) or a parenting plan (not legally enforceable but agreed to by both parents). The most common orders issued in family law situations are financial/property and/or parenting orders.
When it comes to parenting orders, courts will make parenting orders detailing parental responsibilities for their children. Parental responsibility, as defined by the NSW Department of Education, in relation to a child, means all the duties, powers, responsibilities and authority, which, by law, parents have in relation to their children. And while schools are not directly party to any parenting order made by the court, one of the major long-term issues usually defined in parenting orders is the child's education (both current and future).
The paramount duty of a judge is to consider the child’s best interest when making a parental order. Primary considerations must include the:
- benefit to the child to have a meaningful relationship with both parents; and
- need to protect the child from physical or mental harm and from being subjected to, or exposed to, abuse, neglect or family violence.
As stated in our previous article, both parents are assumed to have parental responsibility over their children. And parents are presumed to have parental responsibility for a child until the child turns 18. 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.
But parents may not be the only people involved with parental responsibility orders from the court.
Other Relationships Important to Students
According to the Australian Institute of Family Studies, one in five people will marry more than once, meaning that step-parents may also be included in the typical school family. Over 12,000 children are living in foster care, so FACS and foster carers may also be involved in education decisions. And grandparents, siblings or other concerned relatives may also be involved through guardianship orders issued through the Civil and Administrative Tribunal of each state or territory.
What is important for schools to understand is that their duty remains to uphold the overriding best interests of their students. This means, upon enrolment, any court orders should be provided to the school so that arrangements for communication, emergencies and parental authority can be understood and applied to the student and family's interactions with the school (this may also mean making sure all parties with parental responsibility sign and acknowledge the enrolment form).
How do Family Court Orders Affect Schools?
As we have mentioned in our previous article, Family Court or FCC orders can affect schools in a multitude of ways, and we have listed some of the key areas below:
- Enrolment: schools should consider obtaining both parent's signatures on the enrolment form (unless other court orders apply) and a copy of any court orders upon enrolment.
- Duty of care considerations: a school’s paramount interest is to ensure the student is not harmed whilst the school has control over the child. Having a sealed copy of orders on file or any other document detailing parenting arrangements should help schools determine who has care of the child at certain times, any handover arrangements which may apply (where alternate parents do drop off and pick up on school grounds) and which parent is going to collect the child at the end of the school day. Schools should also be aware of privacy issues regarding the handling of court orders.
- Who to contact: depending upon which parent has the responsibility for the child, schools need to know who to contact in emergency situations or if an incident has occurred involving their child.
- Continuing communications: sometimes parenting orders may stipulate who receives information from a school such as reports and newsletters. Parenting orders may also state who is to request and pay for any charges relating to the request for information. Schools should also be aware that there may be ongoing litigation in any disputes involving the Family Court, and that bullying of either parent through the school may be a common litigation tactic.
- Parents attendance at school events: at some school events, such as school concerts, plays or other volunteer or fundraising events, one parent may express concern that the other parent is at a certain event and tell the school to ask the other parent to leave. However, without access to sealed or certified copies of parenting orders or a parenting plan stipulating that a parent is restricted from responsibility for the child or from having access to the child, schools cannot withhold access to the child.
- Fees: parenting orders may stipulate who is going to pay for a child’s education or maintenance. It is important for schools to know which parent is going to pay the school fees so they know where to send the invoice and who is paying the bill. A word of caution is that, unless stipulated within the order, schools should not split a school fee account. A single account should be sent - let the parents sort out the payment arrangements. Note that court orders that assign school fee payments to only one parent may affect enrolment contract details.
- When a parent comes unexpectedly to pick up their child: in the event that a parent comes to collect their child/children unexpectedly, schools need to be aware of what the court orders state and whether the parent has care of the child at that time. If there are no court orders in place, schools should ask the parent to leave and obtain permission for the collection of the child from the other parent or legal permission for such an action. Schools should contact the other parent immediately and inform the parent of what has occurred.
Exceptions to Shared Parental Responsibility
Schools should be aware of some key exceptions to shared parental responsibility including:
- Restraining orders, Witness protection or Apprehended Domestic Violence Order (ADVO): depending on each state or territory’s legislative requirements, schools may also need to consider any restraining orders or ADVOs issued by a court. Restraining orders and ADVOs are referred to differently and administered in each state and territory and schools should understand the law in their jurisdiction. Schools should request a sealed or certified copy of the restraining orders in order to determine which parent is restricted from seeing or being in the proximity of the child or the other parent. The school can then develop processes to ensure that their duty of care for the child is not compromised. It is not appropriate to assume that a restraining order has been issued simply on a verbal acknowledgement from either party.
- Guardianship orders: guardianship refers to an order that someone else can make decisions on behalf of a person, who lacks capacity to manage his or her own affairs. Often this happens in cases of disability, drug or alcohol addiction, or other safety risks for the child. This could include decisions related to education both if the person protected by the guardianship order is a student or the guardianship order is made in favour of someone other than the child's parents.
What Schools Need to Know
The first port of call when deciding what schools need to know is to ask parents whether there are any relevant and current Family Court or FCC orders or any other type of parenting arrangement in place at the time of enrolment. If there are orders in place, schools need to request these orders so they are aware of their obligations, and any parenting arrangements. Once the school is aware of what the court orders state, they can make arrangements to comply.