A dispute as to a change in schooling for a child raises two important questions for consideration:
Who makes this decision? Is it a joint decision, or can I make it solely; and If there is a cost for attendance at a private school, who should bear responsibility for this cost?
The Family Law Act (Cth) (‘Act’), provides that decisions regarding a child’s education fall within the scope of ‘parental responsibility’.
Further, there is a presumption in the Act, that parents have shared parental responsibility, that is, decisions about the child’s education are to be made jointly.
There are circumstances where the presumption of shared parental responsibility does not apply, and in those circumstances sole parental responsibility may be awarded to one parent; which could be in relation to one specific issue (i.e. education or health), or in relation to all facets of parental responsibility.
It is important that you obtain independent legal advice about your personal circumstances and whether your case is appropriate to consider an application for sole parental responsibility.
A further point for consideration in your case is the school which the child might attend – If the Court was asked to make a decision about that, one of the considerations may be the extent to which your child will be supported by that school. The Court would also look at such things as the child’s wishes, the proximity to each of your homes and the costs of that school.
If the proposed school were to attract a fee to attend, then the question who might bear responsibility for that cost is enlivened. This aspect of the case would attract consideration in light of the relevant provisions of the child support legislation.
Private schooling fees and ancillary costs can be agreed upon by parents and documented in child support agreements. If you are able to reach an agreement with the other parent you should obtain independent legal advice about having these terms documented in a Binding Child Support Agreement.
Alternatively, where the responsibility for the costs is disputed, the cost can be the subject of applications to the Child Support Agency for a variation to any administrative assessment of child support, or (in some circumstances), an application to the Family Court or Federal Circuit Court of Australia for departure from the administrative assessment by the Child Support Agency.
Where there is historical domestic violence, you may likely feel uncomfortable raising and negotiating these issues with your former partner. Mediation can be arranged to ensure you are protected during the negotiation process or alternatively you may consider engaging a solicitor to facilitate these discussions for you.
NOTE: This is general information, and does not cover the field of all potentially live issues. It does not pertain to a specific situation or individual circumstances, and should therefore not, without more, be relied upon in decision-making. Advice tailored to your unique situation must be sought from a specialist family lawyer before embarking on a course of management of your particular case.
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