Many Australian children have separated parents. This can create uncertainty for schools in terms of the rights and responsibilities of their students’ parents. When there are court orders in place that stipulate specific parenting arrangements for a student, it is common for parents to expect the school to enforce those orders. It is therefore important that schools be aware of their legal responsibilities in this area. In previous School Governance articles, we have dealt with how Family Court orders are made and the implications for schools. This article will focus specifically on a school’s obligations in the context of parenting orders.
What is a Parenting Order?
There are various approaches that separated parents may take to determine their respective parental responsibilities. Where parents have difficulty reaching agreement over their child’s care, it is possible to seek court assistance. Parenting orders are legally enforceable agreements that can be made by the Family Court, the Federal Circuit Court or occasionally a Local Court. The Family Law Act 1975 (Cth) (Family Law Act) provides that parenting orders can deal with:
- the child’s living arrangements
- the time the child can spend time with each parent (or other persons)
- the communication the child can have with each parent (or other persons)
- decision-making powers between the parents
- other ancillary issues connected to the child’s care, such as financial responsibilities or permission to travel.
The Family Law Act creates a presumption of equal parental responsibility under section 61DA. This means parents are ordinarily entitled to have an equal say in long-term decisions about their child, even if they do not spend equal time with the child. Occasionally, courts decide that one parent is to have sole parental responsibility, which gives them the right to make decisions about the child without input from the other parent.
What Obligations do Schools Have in Relation to Parenting Orders?
Ordinarily, schools are not obliged to enforce or comply with parenting orders, as they are not a party to those orders. Furthermore, it is not the responsibility of schools to interpret parenting orders nor to become involved in family disputes by telling parents when they can and cannot see their children.
Nonetheless, there are situations in which parenting orders affect the way schools administer their duty of care to students. The Family Law Act provides that a party not bound by a parenting order will be found to have contravened one if they:
- intentionally prevent compliance with the order by a person who is bound by it
- aid or abet a contravention of the order by a person who is bound by it.
Senior Associate of Cooper Grace Ward, Craig Turvey, suggests that it is uncommon for a non-party to a parenting order to be found to have contravened it. However, given that such a contravention is possible, it is important for schools to be aware of any obligations that parenting orders may create for staff.
How Should Schools Deal with Conflicts that Arise from Parenting Orders?
Schools should encourage parents to inform the school in the event of separation and to provide any relevant information relating to court proceedings. The school should acquire a sealed copy of parenting orders and not rely on verbal statements made by parents. A copy of these orders should be maintained on the student’s files and staff members should be informed of any terms that will affect their supervision of the child. This may include information such as who will pick the child up from school and who the child can contact.
Some of the typical conflict situations that schools deal with in relation to parenting orders are outlined below. While the terms of the parenting orders should guide the school’s response, the welfare of the child should always be prioritised.
Pick-up arrangements: parenting orders often stipulate who has responsibility for the child at different times. It is common for schools to be a place of ‘handover’ where one parent will drop the child off but the other will pick them up. Schools need to be aware of these arrangements and should be cautious of who they permit to collect the child. Staff should contact the parent who is responsible for the child at the given time if a different person arrives for pick-up. The child should only be allowed to leave with that person if the responsible parent consents.
Emergency contact: schools need to know in advance which parent should be contacted at any given time in the case of an emergency or if an incident occurs involving the child.
Access to student information: parenting orders may specify who is to be sent information about the student, such as school reports, permission slips and newsletters. Parents may also request access to information that the school has in relation to their child. Unless there are court orders that deny a parent access to this type of information, schools should make this available.
Involvement in school activities: generally, both parents are permitted to attend and be involved in school activities, such as performances, canteen duty or sporting events. Sometimes one parent may ask the school to prevent the other parent from attending school events. Unless the parenting order prohibits a parent from attending school functions or there is genuine concern for the safety of the school community, the school should not restrict a parent’s access to their child at school functions.
There may be occasions when Court orders or child support assessment orders deal with the parents’ financial obligations in relation to, for example, school fees. This would most likely be separate from a parenting order and in any event would be dealt with by the school bursar or administration office and not by the teaching staff.
The best way for schools to avoid difficulty in relation to parenting orders is to have relevant policies and procedures in place. This should include ensuring that the school has sealed, up-to-date copies of parenting orders and makes staff aware of any implications arising from their terms. Following these practices is important not only because they protect the school in a legal sense but also because they will help to ensure the safety and wellbeing of students.