Your ques­tions an­swered with Clarissa Ray­ward, Aus­tralia’s Happy Fam­ily Lawyer and CEO of the Brisbane Fam­ily Law Cen­tre

Lift Magazine - - Contents -

A dis­agree­ment about a change of school for chil­dren is a com­mon enough chal­lenge for sep­a­rated par­ents. Of­ten th­ese dis­agree­ments can be re­solved through a few emails or a se­ries of con­ver­sa­tions, but if you really can’t find a so­lu­tion to­gether you may find your­self hav­ing to re­sort to the le­gal process for as­sis­tance.

If you have an Or­der for Equal Shared Parental Re­spon­si­bil­ity, the Fam­ily Law Act tells us that as par­ents we should be work­ing to­gether to reach an agree­ment on the school­ing of our chil­dren. It is a sig­nif­i­cant de­ci­sion for kids and both par­ents should be in­volved in making it. Where we can’t reach agree­ment, it then be­comes a le­gal is­sue that a Fam­ily Court will de­ter­mine on your be­half.

Like with all par­ent­ing mat­ters, it will be nec­es­sary for you to have un­der­taken Fam­ily Dis­pute Res­o­lu­tion (me­di­a­tion) prior to be­ing able to com­mence an ap­pli­ca­tion in the Fam­ily Courts (un­less you sat­isfy the ex­cep­tions which are gen­er­ally re­lated to risk and ur­gency).

Once you have at­tended me­di­a­tion you can bring an ap­pli­ca­tion in the Fam­ily Courts to have a Judge de­ter­mine where your chil­dren will be schooled. The chal­lenge with this is that like all Court ap­pli­ca­tions you are now hand­ing over a very im­por­tant de­ci­sion to an ed­u­cated stranger. The Court will look at what is in the ‘best in­ter­ests’ of your chil­dren and this is a sub­jec­tive process, de­pen­dent on the in­for­ma­tion avail­able to the Judge on the day. It may take many months or even some­times years to have the de­ci­sion made, it can cost a for­tune and there is no guar­an­tee you will get the out­come you hope for.

So what do you do? If you can’t reach an agree­ment and you are con­sid­er­ing the Court process as the way for­ward I sug­gest you pause and really try hard to find an­other so­lu­tion.

Where do you start? You start with really try­ing to understand the ba­sis of the dis­agree­ment that ex­ists be­tween you and your for­mer part­ner. Chances are there is a rea­son why your for­mer part­ner is ob­ject­ing to the school of your choice

What hap­pens when you have equal shared parental re­spon­si­bil­ity in court or­ders but don’t agree on school­ing? I’m plan­ning on mov­ing 40km away which is al­lowed in our or­ders but I will want kids schooled near me and my co-par­ent will want them to re­main at their cur­rent school where el­dest is. What hap­pens when equal re­spon­si­bil­ity means there can’t really be any ne­go­ti­a­tion

as pub­lic schools in our state only ac­cept chil­dren in their catch­ment zone.

and so your job is to find out what that rea­son is and then see if you can find an­other so­lu­tion to the chal­lenge.

A com­mon con­cern I see when deal­ing with th­ese is­sues is that a par­ent is propos­ing a change to a pri­vate school. In this case, of­ten the ob­ject­ing par­ent is not con­cerned about the school it­self but rather about the cost in­volved. As soon as you work that out then you can start to fo­cus on so­lu­tions. For ex­am­ple, shar­ing costs equally, off­set­ting school fees from child sup­port or try­ing to­gether to ap­ply for schol­ar­ships for your chil­dren.

In the ex­am­ple you have given me, where you would like to move 40km, I would really want to understand the ba­sis of your for­mer part­ner’s com­plaint. I am guess­ing but it may be some of the fol­low­ing:

How will the move af­fect my time with the chil­dren? How will I still be in­volved at my kids school when it is much fur­ther away? How will the kids cope with the school change?

They are my guesses but I en­cour­age you to ask the ques­tion (calmly and re­spect­fully!) Once you know the an­swer to this ques­tion it will give you some­thing to work with in terms of find­ing so­lu­tions.

I have seen this done really well by one of my clients re­cently. She sent an email to her for­mer part­ner set­ting out the rea­son she was propos­ing a school change, giv­ing in­for­ma­tion about the new school and ref­er­enc­ing the other schools she had con­sid­ered in her de­ci­sion. She also tried to an­tic­i­pate some of her for­mer part­ners con­cerns and then fin­ished by ask­ing him what he thought and if he would be will­ing to at­tend a meet­ing with the new school prin­ci­pal so they could to­gether find out more in­for­ma­tion be­fore they had to make a de­ci­sion.

Now I ap­pre­ci­ate that may not be for ev­ery­one, but it cer­tainly worked for my client. It also al­lowed her for­mer part­ner to feel he was in­volved in the de­ci­sion making process, rather than just be­ing told how it was go­ing to be. So that is where I would start if I was you – try to get to the bot­tom of the dis­agree­ment and then aim for so­lu­tions. And do this be­fore you go to me­di­a­tion so if you still end up there you can have some solid so­lu­tions avail­able be­fore you be­gin.

As an aside, while state schools are only sup­posed to take stu­dents in their catch­ments, in my ex­pe­ri­ence, that pol­icy can de­pend on the in­di­vid­ual school so it may be that your chil­dren can at­tend a school out­side of the catch­ment and per­haps the ul­ti­mate so­lu­tion may be a school that’s in be­tween you and their fa­ther. Now that op­tion may open up a whole new can of worms, but in my ex­pe­ri­ence it can also be the best way for­ward to a fi­nal and mu­tu­ally ac­cept­able so­lu­tion!

* Please note that this con­tent is based on Aus­tralian law and is of a gen­eral na­ture which should not re­place in­de­pen­dent le­gal ad­vice.

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