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HOW SHARED PARENTING AFFECTS SCHOOL
ENROLMENTS
Schools are commonly faced with a dilemma
where separated or divorced parents are in
dispute about the enrolment of their child.
The ideal situation would be for both
parents to agree and cooperate regarding the
school their child is to attend, but
sometimes (for example in cases involving
cultural or religious differences between
the parents) agreement is simply not
possible.
ADVICE FOR SCHOOL
Decisions about a child’s education are
often extremely important to parents,
including separated parents. It is not
surprising that the issue often creates
conflict and that, in some cases, this
difference of opinion cannot be resolved by
the child’s parents.
It is prudent for schools to identify
whether the enrolment is agreed and
advisable to avoid ‘taking sides’. This is
not always easy; a parent may exert pressure
on the school to accept an enrolment
(notwithstanding parental conflict) in order
to secure a place for the child where this
is limited availability.
We suggest that schools should always ask
whether there is a Parenting Order or
Parenting Plan in place. If so, they should
request a copy for their records. The Order
or Plan will (1) identify whether the
presumption of equal shared parental
responsibility applies and (2) if the issue
of education has already been litigated,
will either specify a school(s) for the
child or specify who will make the final
decision about enrolment.
What is the difference between a parenting
plan and a parenting order?
·
Parenting Plan: an agreement between the
parents of a child that is in writing, is
signed by both parents, is dated and deals
with matters relating to the child. It does
not need to be witnessed by an independent
person and is not filed/registered with the
Family Court.
·
Parenting Order: an order made by either
the Family Court or Federal Magistrates’
Court which deals with matters relating to
the child and bears the Court Seal, is dated
and described as either interim or final
orders.
What if there is no plan or order in place?
There will be cases where there is no
parenting plan or a court order. The
presumption of equal shared parenting
applies but can be displaced. One parent is
able to enrol the child into school
independently of the other parent. In other
words, there is no legislative or formal
requirement that a parent first prove that a
long-term decision has been made jointly
before acting. However, if there is reason
to believe that there has been no
consultation with the other parent or there
is a dispute, it may be prudent to request
that:
(a) both parents sign the
enrolment form; and
(b) both parties enter into a
parenting plan and provide the school with a
signed and dated copy.
What if there is a parenting plan and a
court order and they are conflicting?
If the court orders were made after
the dated of the parenting plan, the court
orders prevail. On the other hand, if the
parenting plan was made subsequent to the
court orders, they will prevail unless,
the court order specifically states that the
court order may only be varied by a
subsequent court order.
If after examining both the parenting plan
and court orders, the school is still unable
to ascertain which parent has the right to
enrol the child into their school, legal
advice should be obtained.
ADVICE FOR PARENTS
Shared parental responsibility does not mean
you must consult the other parent about all
decisions; decisions other than major long
term decisions may be made by the person
with whom the child is spending time without
the need for consultation. These are
commonly referred to as “day to day issues”.
As stated above, a child’s education is
definitely an issue which requires genuine
consultation and joint decision making.
What is meant by genuine consultation?
The process of consultation should involve
setting out your proposal in relation to
schooling for consideration by the other
(i.e. which school, where and why),
providing relevant information to assist the
other parent to make a decision (e.g. the
school information pack) and allow a
reasonable time for the other parent to
respond.
Consultation can be assisted by a Family
Dispute Resolution Practitioner if direct
communication is difficult.
What if agreement cannot be reached?
If agreement cannot be reached, then
(effective 1 July 2007) you will need to
attend upon a Family Dispute Resolution
Practitioner (FDR) in order to obtain a
certificate (certifying that you have
attempted to resolve the matter out of
Court).
In the event that you resolve the matter at
FDR, a parenting plan or Court Order should
be drawn up to document the agreement
reached.
Alternatively, you may need to commence
proceedings in the Family Court or Federal
Magistrates’ Court seeking determination of
the outstanding issue(s). The Courts now
use a less adversarial means of determining
parenting disputes, however, expert legal
advice is strongly recommended.
Ultimately, the Court will decide the matter
on the basis of the child’s best interests;
this is the paramount consideration in any
parenting case before the Court. The Court
may elect a 3rd option (i.e. neither the
father nor the mother’s proposal).
Jodylee Bartal and Janeta Nedanovska can
provide further information or specific
advice on this topic. They can be contacted
on +61 4 9609 1552 or by email at
jbartal@rk.com.au or
jnedanovska@rk.com.au |
