Navigating parenting post-separation is a notoriously difficult process. It can be hard to set aside the distrust and fraught emotions that exist between parents whose relationship has fractured. Working out how to make long-term decisions in the best interests of your child after conflict is no easy task. Often, the topic of schooling becomes a point of contention as one parent’s individual hopes for their children’s education may not line up with the other parent’s.
So, who gets the final say?
The Fundamentals: The Family Law Act & Parental Responsibility
The most important, and a very common misunderstanding, is that in parenting matters the child’s best interests are the paramount consideration of the Court. At law, parents have very few rights with respect to their children but many responsibilities.
When working out who has the ultimate responsibility in relation to long term decisions for their child, the Family Law Act 1975 (Cth) (“the Act”) can be perplexing to read. The Act employs a number of similarly phrased terms surrounding “parental responsibility” which have very distinct meanings.
The Act defines parental responsibility generally as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” – a meaning so vague that even the Court has said that “this definition provides little guidance…”
The Court has ruled that the meaning of parental responsibility can be better understood by referring to the objects of the Act and the principles underlying it. Specifically, a principal of the Act is that parents jointly share duties and responsibilities concerning the care, welfare and development of their children.
In effect, parental responsibility is really the legal term for ensuring that children are properly cared for both in the short and long term by the adults who have care of them.
Parental Responsibility without Parenting Orders
Prior to the Court making any determinations in relation to parenting, the Act says “each parent has parental responsibility” in relation to their child or children. The Court has interpreted the Act as meaning that prior to Court intervention, the law does not seek to regulate the way parents choose to work together (or not) in making parenting decisions. This means parents are free to arrange their parenting efforts in the way that best suits them.
It is important to identify here that “parental responsibility” is not always a wholistic idea where each parent makes 50% of each decision in relation to the children. For example, parent A may be in charge of the schooling decisions solely and parent B may be in charge of healthcare decisions solely, but they may each have input in relation to extra-curricular activities. The Court, if asked, can allocate parental responsibility in relation to categories of decision rather than in terms of percentage of the overall decision making.
Ultimately, prior to Court intervention each parent can exercise their discretion to choose which school their child/ children attend either together or independently. But parents have to remember that if a Court is involved eventually, the Court will not look favourably on moving children between schools as part of a dispute between parents.
Court Ordered Parental Responsibility
When a Court is asked to determine who should have parental responsibility for a certain child and comes to a decision, the terms of the Court Order establish to what extent each parent has parental responsibility. However, unless it is explicit, the Court Order does not extinguish any of a parent’s responsibility.
The two extremes of a Court’s determination are “sole parental responsibility” – which is where one parent is given the entire responsibility for a child, and “equal shared parental responsibility” where both parents must in unison exercise their responsibility. Every shade of responsibility in between is available to the Court to order. The Court’s starting point is to presume that equal shared parental responsibility is in the best interest of the child as one of the underlying principles of the Act is that children are served best by having two functioning parents looking after their interests.
Determining schooling under sole parental responsibility is easy enough as one parent has final say. However, what if the parents under an equal shared parental responsibility arrangement, or a broader shared parental responsibility arrangement, cannot agree on what to do?
In relation to “major long term decisions”, which schooling undoubtedly is, the Act answers this by saying that parents under such a shared arrangement have to:
- Consult each other before making a decision; and
- Make a genuine effort to come to a joint decision about that issue.
The Court has held that once parents have properly consulted with each other and made a genuine attempt, there is no further obligation prohibiting them from taking action – enrolling the child in a school for instance. However, given that by the time Court Orders are already in place the parents are already struggling to reach agreement, it may be better to bring an application to the Court rather than act unilaterally.
In relation to issues that are not major long-term issues, the parents have no obligation to consult with each other prior to taking action. For instance, if it is your day that the children are to spend with you and you are contacted by the school that your child is sick and choose to collect them from school you do not need to consult with the other parent first.
What to Do?
The most important thing to remember in parenting matters is that the Court values the interests of the children above the interests of the parents. The Court also has a desire that children have two functioning parents who work together to make the best decisions for their children.
Whether Court Orders are in place or not, when making decisions regarding your child/children’s short or long-term future, parents should seek to work together for the best interests of their children.
If you and your partner/ co-parent are unable to come to a decision jointly, you should discuss your matter with a family lawyer to ensure that your obligations and responsibilities under the Act are properly met.
If you would like advice about your specific situation, please contact Frank Law on (02) 9688 6023 to make an appointment with our experienced Family Law practitioners.
This is not legal advice.
Written by Timothy Robertson & Ben Woodward
