Fees and Family Law

 

HOW FAMILY LAW IMPACTS ON ENROLMENT AND SCHOOL ADMINISTRATION

 

A paper presented to Christian Schools Australia, National Business Conference, October 2008

 

 

Background

 

According to the Australian Bureau of Statistics there were 47,963 divorces in Australia in 2005.  Approximately 30% of marriages end in divorce.  Nearly 50% of all divorces involve children under the age of eighteen.  Also 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 affirm what is already known by educational institutions – whilst it is certainly an over-exaggeration to declare the end of the “traditional” two-parent family, as a whole, the family is becoming an ever-increasingly complex unit.   The “rise” of the non-traditional family unit has caused school administrators to deal with issues that previous generations did not have to deal with. These issues include:

 

·                What should the school do if the non-resident parent refused to pay the school 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?

 

These questions also take on a special importance in an age where there is an acute awareness of the so-called “right to privacy” and the need to uphold the protection of the child.

 

The “Ground Rules”

 

In order for school administrators to properly assess their response to the complex family law system it is necessary to set out some ground rules.

 

The two important ground rules below deal with the responsibility of parents and schools.  These ground rules should begin to shape how schools and parents, especially parents from broken relationships, engage with each other.

 

The 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 act as an arbiter in family disputes;

 

What these Ground Rules mean practically is that:

 

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

 

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

 

Having set out the ground rules, this paper seeks to:

 

(a)          provide school administrators and educators with a brief background in the Family Law framework in Australia and in particular in relation to the important 2006 amendments to the Family Law Act 1975 ;

 

(b)          highlight the importance of the “enrolment contract” especially in explicitly establishing the “Ground Rules” for schools and parents; and

 

(c)          provide some practical assistance on how school administrators and educators can deal with some of the more common difficult family law issues.

 

Family Law in Australia

 

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).  The Family Court has the primary jurisdiction to make orders in relation to children.

 

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 of the following significant changes:

 

·                There is now a presumption that it is in the best interests of a child to have a meaningful relationship with both of his or her parents.

 

·                The Act explicitly provides that each parent has “parental responsibility” in relation to their children.  Parental responsibility is defined to mean “all the duties, powers, responsibility and authority which, by law, parents have in relation to children”.    Both parents continue to have parental responsibility even after separation, divorce or re-marrying.

 

·                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 … );

 

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:

 

o                  Who the child lives with;

 

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

 

o                  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.

 

·                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. 

 

·                Where a court makes an equal shared parental responsibility order, absent any 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.

 

Relevantly for schools and 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 making “major long-term issue” jointly.

 

·                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 possibly also the provision of report cards.  Matters which do not necessarily involve “major long-term issues” potentially include reporting of minor behavioural infractions.

 

This brief analysis of the Family Law regime in Australia perhaps leads educators to despair:  How is the school to know whether the parents have “shared parental responsibility”?; What does and does not constitute a “major long-term issue” relating to the education of a child? What information does the School need to give to the non-resident parent so it can be involved in the education of the child?

 

The point of setting the “Ground Rules” earlier was to ensure that schools were not forced to decide those difficult questions.  The responsibility is on the parents to ensure that they comply with their obligations of parental responsibility and observe the terms of any court order.  The primary responsibility, for instance, to share information relating to the education of the child should be between the parents and it is not necessarily an administrative burden that should be passed on to school administrators and teachers. 

 

Unfortunately, when communication breaks down between parents there is invariably an attempt to pass on to schools some of those burdens.  From a risk point of view schools should be careful before they assume the responsibility of some of those burdens.

 

For example, quite commonly Family Court orders will limit when the non-resident parent can spend time with the child.  This may be on alternate weekends only.  It is well and good for the resident parent to provide the school with copies of the Family Court order and explain their effect.  It is quite another thing for the school to purport to take responsibility for “ensuring” the non-resident parent does not have contact with the child during non-contact times.  The reality is, no school will have the ability to prevent the non-resident parent, for instance, collecting the child after school from the communal collection point.   Schools cannot and should not act as a “policeman” in these types of situations.

 

It is for these types of reasons that both schools and parents should understand and appreciate their own respective responsibilities.  In this context, this paper suggests that enrolment contracts can be of assistance to Schools in ensuring the rights and responsibilities of Schools and parents are suitably outlined.

 

Enrolment Contracts

 

It is useful to consider that the relationship between a parent/s and private school is a contractual relationship.  The school contracts with the parent/s to provide education services to a child in return for a tuition fee.

 

Most schools will not have a document titled “Enrolment Contract”.  They do, however, ordinarily have documents which are likely to be of a contractual nature, including potentially an enrolment application, terms and conditions of enrolment and possibly also school policies. 

 

It is important to appreciate that a contract 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).

 

Obviously, it would be impractical to reduce to writing in a formal enrolment contract the entire ambit of the relationship between school and parent.  But 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.

 

A large part of the writer’s practice is in the areas of litigation and dispute resolution.  There are a large number of disputes which arise because parties dispute the terms of unwritten contracts or arrangements.  Often the litigation could have been averted if the important terms of the relationship were reduced to writing in the first place so it was clear where each party stood legally.

 

We are not suggesting that disputes or disagreements with parents will end up in a court room (although, unfortunately it does happen); however, it is suggested that schools and parents can benefit from reducing important terms to writing to ensure there can be no misunderstanding about the roles each party plays in the education of the child.

 

Most schools already instinctively operate in this fashion. Important terms which should and usually are reduced to writing include the obligation on the parent to pay school fees and observe statements of faith and obligations on children to participate in school activities.  In light of the growing complexity of the family unit, it is suggested that schools need to also consider, if they have not already done so, incorporating terms dealing with common family-related issues.

 

Common family-related issues

 

1.      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.

 

[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 Enrolment Application is contractual and that the school has properly incorporated its written enrolment terms and conditions.]

 

The Enrolment Application itself should be used to identify whether there might potentially be issues resulting from the separation of parents.

 

Actually, many if not most schools have adapted their Enrolment Application forms to properly address the reality of the non-traditional family.  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 generally appropriate that the school 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.

 

It is appropriate that the Enrolment Contract also deals with the situation where parents, although living together with the child at the time of enrolment, later separate.

 

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)             agree to provide the school with copies of any court orders, including Family Court orders, which deals with parental responsibility for the child or otherwise limits the contact or communication one or more parents or other persons has with the child (eg. domestic violence order);

(b)             acknowledge and agree 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 or any other obligations that parents have at law including under the Family Law Act 1975 (Cth);

(c)             acknowledge and agree that they are responsible for all parental responsibility in relation to the child as prescribed by law, including under the Family Law Act 1975 (Cth), or by any order of a court;

(d)             agree to inform the school if they separate and to keep the school informed of any changes to the address or addresses of the parents and the child save that the parents must nominate an address in which the child ordinarily lives during school term (as this is the address that the school will correspond with the parents).

 

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

 

The presumption under the Family Law is that parents share parental responsibility in relation to decisions about their children, including particularly issues relating to the children’s education (which is a major long-term issues).

 

Accordingly, if one parent has not signed the Enrolment Application, it is appropriate for a school to enquire of the parent who submitted the application 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.

 

From a practical point of view, 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 the writers’ 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 it is likely that the school’s contractual relationship is only with the parent that signs the applications.  This means the school will generally be unable to look to the other parent for payment of the tuition fees.

 

Where both a resident and non-resident parent sign the Enrolment Application, the non-resident parent is liable to pay the tuition fees even though the child does not live with him or her.

 

In order to bring certainty to the matter (both for the school and the parent), a clause can be inserted into Enrolment Conditions dealing explicitly with the responsibility for payment for ongoing tuition fees. 

 

            Example:

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

 

Schools may, of course, prefer to adopt a policy where accounts are sent to both parents separately.  However, in keeping with one of the themes of this paper – reducing school administration – it is reasonable to nominate in the Enrolment Contract where the accounts are to be sent.

 

3.      What if someone other than a natural parent signs the Enrolment Application?

 

It is common that third parties, such as step-parents, take responsibility, with a child’s natural parent, for the child’s upbringing.  Sometimes that step-parent will have taken formal process such as adopting or obtaining orders from the Family Court granting parental responsibility rights (ie. becoming a legal guardian).

 

Whilst it is prudent to ask step-parents if there is any formal recognition of them having parental responsibility, we see no legal impediment to a step-parent signing the Enrolment Application.   By signing the application, the step-parent is likely made a party to the Enrolment Contract and will be under an obligation to pay tuition fees.

 

However, in the absence of the step-parent having been properly made a legal guardian, the school should deal primarily with the natural parent in matters, including:

 

• Discussing important educational or discipline issues with the child;
• Obtaining parental consents for attendances at excursions etc.

 

Schools would also be acutely aware that allowing step-parents to be parties to the enrolment contract may lead to stiff opposition to the other parent.

 

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

 

Sometimes the non-resident parent approaches the school wanting copies of school report cards or other documents about their child.  At other times the non-resident parent may want to speak to a teacher about the progress of their child.   Alternatively, some resident parents specifically request that the other parent not have any right to participate in or receive information about their child’s education.

 

Some schools have adopted the policy of mailing all material documentation, such as report cards to both of the separated parents.  This creates an administrative burden in ensuring the “database” of parents is kept up-to-date.

 

Everyone appreciates that the breakdown of a family is a sensitive issue; however, at times it is reasonable to question whether it is appropriate that schools are left to deal with many of the consequences. 

 

As discussed earlier, the presumption at Family Law 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, however, one thing for parents to have a joint responsibility over a child’s education 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 does not place any direct obligation on educational institutions to be the facilitator of information flows between parents.  The obligation is on parents to share sufficient information to ensure decisions about the child’s education can be made jointly. Accordingly, there is no automatic right in parents to insist, for instance, that reports cards are sent separately to each parent.

 

Whilst the school ought to be entitled to assume that separated parents who have shared parental responsibility will themselves properly share information it is preferable that the Enrolment Contract specifically deal with the issue.

 

Example:

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 third parties).

Where, after enrolment of the student has been accepted, one parent furnishes on the school a court order which expressly prevents 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.

The parents agree that the School will only be obliged to send school documents, such as report cards, newsletters and other correspondence, to the address in which the child ordinarily lives during school term.

In all other respects, the parents acknowledge that is it is their responsibility, where appropriate, 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 then 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.

 

4.             Can the school provide documents or other information about the child to step-parents or grandparents?

 

The general position is that unless these parties have been formally recognised a child’s legal guardian, it is not appropriate to provide the information or documents to them except with the parent’s consent.

 

A possible limited exception is a step-parent who lives with the child and has also signed the Enrolment Application.  Again, some regard should be had to whether the Enrolment Contract should provide for the access to documentation and information to a child to a step-parent living with the child.

 

The suggested draft clause referred to previously would grant the step-parent access to documents and information about the child.  It is a matter for schools to adopt their own policy in this area.

 

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, 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.

 

A suggested draft clause for the Enrolment contract follows:

 

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).

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.

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.

 

The final “reservation of rights” is necessary especially where the welfare of the child might be thought to be at risk.   For instance, a situation may 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 those circumstances to prevent the parent from having access to the child at that time until the resident parent has been contacted.

 

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.  I have heard of a situation where a school has adopted a policy where it will send out two lots of the same correspondence to the parents, one to the father describing the child by the father’s surname and one to the mother describing the child by the mother’s surname.  Schools might, quite legitimately, decide to adopt such a policy. However, it is an administrative burden which schools do not necessarily need to take responsibility.

 

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. 

 

It is somewhat more problematic where only one parent signs the Enrolment Application or the other parent, having signed the Enrolment Application some years earlier, refuses to have any further contact with the child.

 

The following is a suggested clause for an Enrolment Contract:

 

            Example:

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

Where both parents have signed this Enrolment Application, the parties agree that the school will not be obliged to change the child’s name on its records unless both parties agree, 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.

Where only one parent has signed the Enrolment Application, the school may, in its discretion, change the child’s name on its records on the request of that parent.  If the child’s other parent later objects the school will not change the child’s name again without the consent of the parents or an order of the Court permits.

 

Concluding remarks

 

This paper was meant to explain how schools can have the best chance of collecting fees and keeping all parents happy.  Unfortunately, it is not possible to keep all parents happy all the time.  Schools probably need to count the cost, particularly administrative costs, of trying always to keep parents happy.

 

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.  The Enrolment Contract is not, of course, designed as some form of draconian tool to be wielded by schools against parents.  Schools should be able to act instinctively to the many different circumstances they confront.

 

 

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.