Independent Schools - Confronting Family Law Issues at the time of Enrolment

Graham Corney and Nathan Donovan

Presented at 20th May at the LegalWise School Law Seminar.

Background

According to the Australian Bureau of Statistics there were 47,963 divorces in Australia in 2007.  Nearly 50% of all divorces involve children under the age of eighteen.  Of the 4.8 million children aged below 18 in 2006-07, just over one million had a natural parent living elsewhere.  Of these children, 75% lived with a single parent, 12% in step-families and 10% in blended families.  After separation, 82% of children lived with their mother rather than their father.  In 2006 and 2007 there were 14,000 families in which grandparents were guardians or main carers of dependant children.  Additionally, grandparents are now estimated to provide almost a third of total hours of child care. 

No doubt, these statistics merely affirms what is already known by educational institution - the family is becoming an ever-increasingly complex unit.   These complexities cause educators and their lawyers to grapple with many practical issues, including:

• What happens if, during the course a child's education, the parents separate or divorce? Which parent can make decisions about the child's education? Are both parents still liable for tuition fees?

• What information, if any, should a school give to a parent who doesn't live with the child?

• What if the resident parent does not want the non-resident parent to be involved in school activities?

• What involvement, if any, can a step-parent or grandparent have in the life of the school?

• What should the school do when one parent wants the child's name to be changed but the other does not?

 

This paper seeks to address three issues:

(1)               Understanding how shared parenting and other family law issues impact on schools (a brief background of the family law regime in Australia);

(2)               Treating the relationship between School and Parent as a contractual relationship (a look at the concept of the enrolment contract); and

(3)               Setting out the "ground rules" in the enrolment contract between the school and parents in broken relationships (looking at specific examples at how the enrolment contract can assist schools and parents in dealing with common family law issues).

This paper aims to be a practical guide to educators and their lawyers on providing an appropriate framework for dealing with inevitable family law issues.

PART ONE

Understanding how shared parenting and other family law issues impact on school.

Family Law in Australia

We are not family lawyers and generally speaking, most lawyers who act for schools will not be specialist family lawyers.   However, it is important to understand some of the fundamentals of family law as they relate to schools.

All States and Territories have vested power in the Commonwealth government to make laws in relation to children.  The main source of laws relating to children is the Family Law Act 1975 (Cth) ("FLA"). 

Significant changes were made to the Family Law Act in 2006 by the passing of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (the "Shared Parenting Act").  The objects of the Shared Parenting Act again confirmed that a Court's paramount regard is always to the "best interests of the child".   

The Shared Parenting Act made some significant changes to family law, including:

• There is a presumption that it is in the best interests of a child to have a meaningful relationship with both of his or her parents: s 60B(1)(a) FLA.

• The Act explicitly provides that each parent has "parental responsibility" in relation to their children: s 61C(1) FLA. Parental responsibility is defined to mean "all the duties, powers, responsibility and authority which, by law, parents have in relation to children": s 61B FLA. Both parents continue to have parental responsibility even after separation, divorce or re-marrying, subject to a Court order to the contrary: s 61C(3), (4).

The Act has also brought in a raft of new terminology; including: 

o                  Former concepts of residence (previously custody) is now referred to as "living with" (eg, the child lives with the mother);

o                  Former concepts of custody (previously access) is now replaced with concepts of "spending time with" and "have communication with" (eg. the child will spend time with the father on ... or the father will have communication with the child on ... ); and

o                  There is also the new concept of "major long-term issues".  Major long-term issues are defined as meaning issues about the care, welfare and development of a child of a long-term nature and includes issues about the child's education (both current and future), religious and cultural upbringing, health, name, and changes to the child's living arrangements that make it significantly more difficult for the child to spend time with the parent.

The court is empowered to make "parenting orders" in relation to a number of matters including:

• Who the child lives with;

• The time a child spends with another parent (or grandparent);

• The allocation of parental responsibility for a child between the parents including in relation to major long-term issues.

When making parenting orders there is a presumption that both parents have equal shared parental responsibility: s 61DA FLA.  Practically, this means:

• The Court is obliged to consider whether it is reasonably practical and in the child's best interest that the child spend "equal time" with each parent. If it is not practical or in the best interests of a child, the court must then consider if it is appropriate that the child live with one parent but spend "substantial and significant time" with the other parent: s65DAA FLA.

• Where a court makes an equal shared parental responsibility order, absent specific order to the contrary, major long term issues are decisions which must be made jointly by both parents even where the child lives only with one parent: s 65DAC FLA.

Relevantly for educators:

• A child's current and future education is in the nature of a "major long-term issue".

• Both parents are presumed to have equal shared parental responsibility in relation to a child, which responsibility includes jointly making decisions about "major long-term issue". Unless a court makes an order exclusively allocating parental responsibility to one parent or specifically orders that one parent have responsibility over educational issues, both parents are likely to have an obligation to jointly make decisions about a child's education.

• Not all matters pertaining to a child's education necessarily involve "major long-term issues". Although the writers are not aware of any specific cases on point, it is suggested that major long-term issues relating to a child's education would include: which school to send a child to, decisions to remove a child from the school, serious behavioural problems (eg. suspensions and expulsions), and academic achievement. Matters which do not necessarily involve "major long-term issues" potentially include reporting of minor behavioural infractions.

What are the "Ground Rules" between the School and Parents from broken relationships?

This brief analysis of the family law regime in Australia is prone to lead educators to despair.  It is well and good for the family law to presume (or even order) parents to exercise shared parental responsibility and make joint decision about a child's education; however, where channels of communications have broken down between parents, it is commonly the case that schools will be treated like the "meat between the sandwich" and called on by parents to be the facilitator or arbiter of their dispute.

The point we want to make as forcefully as we can today is that educators should not feel compelled to become the arbiter of disputes between parents in relation to the education of their child.  It is appropriate that educators establish "Ground Rules" with the parents which set out the framework for how schools and parents, especially parents from broken relationship, engage with each other.  Those Ground Rules are

1.             Parents have the primary responsibility in relation to the welfare of their children; and

2.             It is not the school's responsibility to act as a facilitator and arbiter in family disputes.

What these Ground Rules mean practically is that:

• Divorced or separated parents have the primary responsibility to comply with their obligations under the Family Law and/or to properly observe court orders which deal with the way parental responsibility is to be shared or apportioned; and

• It is not the school's responsibility to try and interpret or decipher Family Court orders or to act as a policeman and judge when parents disagree about matters pertaining to their child's education.

A school's enrolment contract should be playing a central role in clearly establishing the Ground Rules.

PART TWO

Treating the relationship between School and Parent as a contractual relationship

What is the Enrolment Contract?

We find that schools are acutely aware that they owe an onerous duty of care to the children in their care.

Oftentimes, private school educations are less concerned with the nature of their legal relationship with parents.  It is useful to consider that there is a contractual relationship between parent/s and private school.  At its most basic, the enrolment contract will entail an agreement by the school to the parent/s to provide education services to a child in return for payment of a tuition fee.

It is important to appreciate that any contract (whether an enrolment contract or not) does not need to be in writing to be enforceable.  Generally speaking, terms of a contract may be:

• in writing;
• agreed to orally (e.g. a school may orally agree to provide a student with special remedial education);
• incorporated by conduct or part performance; or
• Implied (e.g. there would likely be an implied term of any enrolment contract that the school will maintain a reasonable standard of hygiene in rest rooms).

Most schools will not have a single document titled "Enrolment Contract".  They do, however, ordinarily have documents which, taken together, may be considered to be of a contractual nature, including an enrolment application, terms and conditions of enrolment and possibly also school policies and procedures. 

The concept of a written enrolment contract between a school and a parent is, in our experience, under-utilised.  For some schools the extent of their written terms and conditions are:

1.                  the parent will pay the tuition fees;

2.                  the student will participate in school activities; and

3.                  For many religious education institution, that the parents observe a particular statement of faith.

Whilst it would be impractical to reduce to writing in a formal enrolment contract the entire ambit of the relationship between school and parent, it is preferable that important terms are reduced to writing.  In the event of a dispute with a parent there will always be difficulty in trying to prove the exact terms of any "oral" or other "unwritten agreements".

In light of the growing complexity of the family unit and the types of disputes which can arise, we recommend that schools should consider incorporating written terms into their enrolment contract which establish the "Ground Rules" and provide mechanisms for dealing with common family-related issues.

PART THREE

Setting out the "ground rules" in the enrolment contract between the school and parents in broken relationships

1.      Setting the "Ground Rules"

It is appropriate for the Enrolment Contract to deal with both the situation where the child's parents are separated at the time of enrolment and the situation where the parents only separate some time after enrolment.

As a general clause dealing with the "Ground Rules" we suggest something like:

The school acknowledges that from time to time (whether prior to signing the Enrolment Application or after) parents of the child may separate or divorce.  Whilst the school endeavours to be sensitive to the wishes and needs of the parents and the child, the parents:

(a)             must inform the school if they separate;

(b)             keep the school informed of any changes to the address or addresses of the parents;

(c)             must, at all times, nominate an address in which the child ordinarily lives during school term (this is the address that the school will ordinarily correspond with the parents);

(d)             must provide the school with copies of any court orders, including Family Court orders, which deals with parental responsibility for the child, the education of the child, .or otherwise limits the contact or communication which one parent or other person has with the child (eg. domestic violence order);

(e)             acknowledge that despite the school being provided with copies of any such orders the school does not assume any responsibility for the parents complying with those orders);

(f)               agree to exercise parental responsibility in relation to the child as prescribed by law, including under the Family Law Act 1975 (Cth), or in accordance with order of a Court.

Sub-paragraphs (a) - (d) deal with the disclosure that schools require from parents in order to maintain proper administration and ensure their databases remain up-to-date.

Sub-paragraphs (e) and (f) seek to specifically incorporate into the Enrolment Contract the "Ground Rules".   It is appropriate, in our view, that parents specifically agree that they will comply with any court order.

2.         The Enrolment Application

It is common for schools to require parents to complete an "Application for Enrolment" form. 

Ordinarily, the school principal and other decision makers will rely on the information provided by a parent in the Enrolment Application form in making the decision to offer the parents a position in the school for the child.  The Enrolment Application is likely to be an important document in the suite of "contractual" or "contractual-type" documents used by a school.[1]

The Enrolment Application itself should be used to identify whether the child's parents are separated or divorced at the time of enrolment.  A good practice is to make provision on the application for parents to provide details about:

1.             the name and contact details for the Mother/Step-Mother/Other (as the case may be) living at the same address as the child;

2.             the name and contact details for the Father/Step-Father/Other (as the case may be) living at the same address as the child; and

3.             the name and contact details for a parent not living at the same address as the child.

Where the school identifies that the parents of the child have separated it is usually in order for the school to ask if the parents are subject to any parenting orders, and if so, to provide a copy of those orders to the school for its records.

3.         What if one of the parents does not sign the Enrolment Application (or other enrolment documentation)?

There is a presumption that parents share parental responsibility in relation to decisions relating to the child's education.

Accordingly, if one parent has not signed the Enrolment Application, it is appropriate for a school to enquire of that parent why the child's other parent was not involved.  It may be that a court has allocated parental responsibility in relation to education matters to the parent submitting the application.

Except in unusual circumstances, schools would be well advised to ensure both parents sign the enrolment application. 

Admittedly, not all parents who separate obtain court orders allocating parental responsibility.  Alternatively, even where a court has previously ordered that decisions such as the education of a child be made jointly, over the passage of time, it is not uncommon for the resident parent to make such decisions unilaterally. 

It is our view that, even in those situations, the school is not precluded from accepting the enrolment of the child simply because only one of the parents signed the application.  To reiterate the Ground Rules, it is not a matter for schools to ensure that parents comply with their obligations of parental responsibility under the Family Law.

In situations where only one parent signs the Enrolment Application the school's contractual relationship is only with that parent.  This means the school will generally be unable to look to the other parent for payment of the tuition fees.

It is, of course, preferable to a school to ensure the liability for tuition fees is, where possible, shared by more than one party.

An example of a clause in an Enrolment Contract might include:

All parents, including step-parents, who sign the Enrolment Application (whether or not that parent lives with the child or not) are jointly and severally liable for the payment of all fees and other charges related to the education of the child at the School.  The parents acknowledge that all accounts will be sent by the School only to the address where the child ordinarily lives during school term.

This clause, or something similar, deals not only with the issue of liability for school fees, but also addresses the issue of accounts.  It is not uncommon for schools to send out accounts to both parents.  Whilst some schools may prefer to adopt such a policy, it is an administrative burden and cost which does not need to be borne by the school. 

4.      What if the non-resident parent wants access to information such as student reports, student photographs etc?

These are some common scenarios:

1. The non-resident parent approaches the school wanting copies of student report cards or other documents about their child;

1. The non-resident parent turns up at the school and wants to speak to a teacher about the progress of their   At other times the non-resident parent may want to speak to a teacher about the progress of their child;

1. Alternatively, a resident parent may assert that the other parent has no rights to participate in or receive information about their child's education.

One example we are aware of is a school which adopted a policy of mailing all student report cards to both the resident and the non-resident parent.  To complicate matters, a number of the fathers insisted that the child be known by his own surname whereas the mothers insisted the child be known by her maiden name or that of her new spouse.  This particular school would send out two sets of report cards each containing the surname demanded by each parent.  Leaving to the side whether this is or not this practice is in the best interests of the child, this practice created a needless and unreasonable administrative burden on the particular school.

As discussed earlier, the presumption is that both parents have joint parental responsibility, including in relation to the child's education.  Unless there is a specific court order preventing one parent from involvement in the child's affairs entirely or in relation to education matters specifically, both parents often assume they have a "right" to access such documentation and otherwise participate in the child's education.

It is one thing for parents to have a joint responsibility over a child's education; however, it is an entirely different proposition for the parents to place the administrative burden of that responsibility on the school.  The Family Law presumes that parents are capable of communicating with each other so that decisions regarding the child's education can be made jointly. 

It is important to appreciate the school is not a party to the Family Court proceedings.  Accordingly, any orders that require parents to share parental responsibility binds the parents and it would be unusual for a court to purport to place any direct obligation on educational institutions to be the facilitator of information flows between parents.  Accordingly, there is no automatic right in parents to insist, for instance, that reports cards are sent separately to each parent.

We wish to mention two relatively recent decisions of the Family Court of Australia to illustrate the types of orders that may be made in relation to a child's education.  The first is Brown & Crawford [2009] FamCA 96 (19 February 2009).  The Court made the following orders:

"

(4)               ... the father shall have sole parental responsibility in respect of all "major long term issues" .... In respect of the child ...

(5)               The parties shall each do such things, sign all such documents and each pay any charges or fees as are reasonably necessary to:

                                                               i.      ...

                                                             ii.      ...

                                                            iii.      ...

                                                           iv.      ...

                                                            v.      Have the child's school/s provide to the other parent a copy of the child's report cards, together with any other written report by the school in respect of the child;

                                                           vi.      Authorise any school or educational institution, teacher, tutor or other education professional to provide to the other parent any and all such information in respect of the progress of the child ...."

 

In this matter, given that the father has been granted sole parental responsibility over major long term issues, it would be appropriate for the school to accept an enrolment application only from the father.  Contrary to what we have just said about the unlikelihood of Courts placing the obligation on schools to facilitate information flows between parents, this is one of those decisions where the Court has proposed that the school itself will be the conduit of information.  The appropriate course for the school to take in this matter, as contemplated by Order 5, is to procure from the father an authority to send information to the child's mother.  The school may also render an administrative charge, as also appears to be contemplated by Order 5.

The orders made by the Family Court in Oscar & Traynor [2008] FamCA (22 February 2008) are much more common.  There the Court made the following orders:

 

(3)               The Mother have sole parental responsibility ...

...

(7)        The Mother shall:

            7.1        Do all such things and sign all such documents so as to authorise and permit the Father to obtain all reasonable information with respect to the children's scholastic, sporting and extra-curricular activities;

 

            7.2        In any event, provide to the Father as soon as reasonably practicable after receipt, a copy of any school report, school achievement award, sporting award, or the like, received by the children, ... from their school ...

            ...

 

            7.6        Keep the Father appraised in writing, of any issues effecting the children's education in any substantial way, including, but not limited to, any recommendations for specialised or remedial courses ..."

 

In that matter, it would be appropriate for the school to accept an enrolment from the mother only.  Despite clause 7.1, it is clear that the Court is placing the obligation on the mother to provide information to father.

 

Whilst the school ought to be entitled to assume that separated parents who have shared parental responsibility will themselves properly share information, we consider that the Enrolment Contract can specifically deal with the issue of provision of information and documents to parents:

 

(a)                     The parties agree that the School is permitted to provide information about the child, including but not limited to the child's educational attainment and participation in School activities, only to those parents who have signed the Enrolment Application (which parent/s may consent to the provision of information to other parties).

 

(b)                     Where, after the enrolment of the student has been accepted by the School, one parent furnishes on the school a court order which purports to prevent the other parent from having involvement in the child's education affairs, the school may withhold all or some information about the child from that parent.

 

(c)                     The parents agree that the School will only be obliged to provide information or send school documents, such as report cards, newsletters and other correspondence, to the address in which the child ordinarily lives during school term.  If the School agrees to provide information or send school documents to a parent at another address, the School reserves the right to charge the parents an administrative charge.

 

(d)                     In all other respects, the parents acknowledge that it is their responsibility to share documentation and other information between each other relating to the child's education (even if that other parent has not signed the Enrolment Application).

 

The important points are that:

• The school is contracting only to provide information to those parents who sign the Enrolment Application.

• Schools should be cautious not to provide documents or information to those parents who have not signed the Enrolment Application except with the consent of the parent who signed the Enrolment Application.

• The parents agree that only one set of correspondence is sent on behalf of the child thereby reducing the administrative burden on the school.

• The responsibility is put on parents to ensure, where appropriate, that they communicate and share relevant documentation about their child's education.

Most private schools will have independent obligations under the Privacy Act 1988 (Cth).  It is beyond the scope of this paper to consider issues of privacy.   It is relevant to consider that in August 2008 the Australian Law Reform Commission delivered its report of its review of Australian privacy laws, for your information.   The Commission were of the view that some children, particularly older children, were capable of making their own decisions in relation to privacy issues such as consent to disclosure of private information.  Views were expressed during the Commission that schools may have been attempting to "contract away" a child's right to privacy in the standard form contracts with parents.

5.      Can non-resident parents participate in school activities?

Ordinarily both parents (even if that parent has not signed the Enrolment Application) should have the "right" to participate in school activities (eg. sporting carnivals, reading groups, and open days).

If, however, the school has been provided with Family Court orders or some other order (eg. domestic violence order or bail condition) which specifically prevents a parent from spending time or communicating with the child it is appropriate that the parent be excluded.

For discussion purposes, draft clause for the Enrolment contract follows:

(a)              The school will presume that at all times parents (including step-parents) are entitled to participate in school activities (whether or not those activities involve the child).

(b)              This presumption is rebuttable including where a parent provides to the school a court order which specifically prevents the other parent from spending time with, communicating with or otherwise having contact with the child.  Where a parent has a concern that another parent subject to such a court order may breach that order to the detriment of the child, that parent must immediately contact the school.

(c)              The School reserves the right to exclude any person, irrespective of whether that person is a parent or not, and whether on school property or elsewhere from entering or remaining on any school property or otherwise participating in any school activities, provided the school reasonably believes it is in the best interests of the child that the parent be excluded.

The final "reservation of rights" is necessary especially where the welfare of the child might be thought to be at risk.  

For instance, we are aware of situations that arise where a parent who has not had any contact with the child for many years turns up to the school wanting to meet with the child.   Whilst the school must assess each case on its merits, it might be appropriate in some circumstances to prevent the parent from having access to the child at that time until the resident parent has been contacted.

In the event of any potential confrontation with a parent, it is advisable to contact the police.

6.      What should the school do when the mother wants the child's name to be changed but the father does not?

It is not uncommon, after divorce, for the mother to want to change not only her surname but that of her child.  Often, the father will object, thereby leaving the school in somewhat of a quandary. 

The changing of a child's name is a major long-term issue which ordinarily needs to be made jointly by both parents.  If both parents sign the Enrolment Application the appropriate course is for the school to refuse to change the child's name unless both parties consent or if ordered by the Family Court. 

The Full Court of the Federal Court in Flanagan v Handcock [2000] FamCA 150 listed some of the factors a court considers in deciding whether to accept a change of name for a child:

• The welfare of the child is the paramount consideration;
• Short and long term effects of any change in surname;
• Embarrassment likely to be experienced by the child if its name is different from the custodial parent;
• Confusion of identity for the child;
• Effect any change in surname might have on the relationship between the child and the father;
• The effect of frequent or random changes of name.

The point to be made is that Courts do not make orders changing a child's name lightly and only do so after consideration of a number of factors which are designed to determine the best interests of the child. 

Schools should therefore be extremely reluctant to allow one parent to unilaterally change a child's name.  If the school were to accept that change of name there is a risk that the school was not acting in the best interest of the child (eg. increasing confusion of identify for the child, effecting the relationship between the child and other parent).   Where parents are in dispute on a child's name, the determination of the whether a change of name is in the best interests of a child is better left to the Family Court.

The following is a suggested clause for an Enrolment Contract:

            Example:

 

(a)               The parents agree that the child will be enrolled in the school in the name indicated on the Enrolment Application.

 

(b)               The parents agree that the School will not be obliged to change the child's name on its records unless both of the child's parents agree (even if both parents did sign the Enrolment Application), where one parent delivers to the school an order of the Court permitting the changing of the child's name, or where the School believes other special circumstances exist.

Concluding remarks

If we can offer any recommendations to schools it is to review their Enrolment Contracts with a view to setting out the "Ground Rules" of engagement between the school and parents from broken relationships. 

Setting out these "Ground Rules" may not make all parents happy, but at least everyone will know their respective obligations and responsibilities.  Quite often, parents believe that just because they pay the school fees, they have a "right" to anything they ask for.  Hopefully, the Enrolment Contract can be used by schools and parents as a check on the sometimes unreasonable expectations of parents.

IMPORTANT NOTICE: Please note that the suggested draft enrolment contract clauses contained in this paper have been provided for illustrative purposes and should not be incorporated into your own enrolment contracts without taking independent legal advice.

 

CONTACT

 

Graham Corney                                                   Nathan Donovan

Partner                                                                 Senior Associate

graham.corney@corneyandlind.com.au             nathan.donovan@corneyandlind.com.au

 

Ph :(07) 3252 0011

Fax: (07) 3257 7890

 

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[1] Caveat: Whether the Enrolment Application is a "contractual" document is a question which can only be answered having regard to all surrounding circumstances including the processes adopted by the school in procuring the application from parents.  Legal advice should be taken by schools as to the possible "contractual" nature of the enrolment application.  Also, whether the terms and conditions of enrolment are contained on the Enrolment Application or on a separate document may impact on the ability of a school to enforce those written terms.  Again, schools should obtain legal advice on the procedures that should be taken to ensure enrolment terms and conditions are enforceable.  For the purpose of this paper it will be assumed that the school has properly incorporated its written enrolment terms and conditions.