Berry Family Law Special Counsel Bernadette Johnston discusses Family Law Orders and the Position of Schools: Who is Bound by Orders? Bernadette and Berry Family Law Partner James Turnbull will present on the topic, Family Law and Your School: An Overview, at the School Law Symposium on Risks, Duties and Liabilities on Wednesday, 5 June. 
Many families manage to navigate their way through a relationship breakdown with dignity and mutual respect. In such situations, while it is relevant for the school to be aware of such personal matters so as to assist in dealing with the emotional and practical issues which impact the child, no legal issues are created. Usually the parents remain jointly responsible for educational matters, and both retain the right (subject to orders) to attend the school for school collections, parent-teacher interviews and functions). This article is to assist educationalists to deals with the less common but potentially highly charged scenario of a family breakdown being played out in the school.
While many issues potentially arise in such situations, this article will be confined to:
- Who is bound by Court Orders?
- The distinction between “compliance” and “enforcement”
- Family Violence – the school in the middle
A further article next month will deal with the issue of the school’s involvement in court proceedings – evidence, subpoenas, being a witness and litigant parents using schools as an evidence-gathering mechanism. It will also deal with the issues of allegations and alienation – how to avoid being drawn into the agendas of competing litigants and the issue of teacher safety.
WHO IS BOUND BY ORDERS?
It is important to recognize that orders are the result of civil (ie not criminal) proceedings between private citizens and bind the parties to the proceedings or (in some circumstances) third parties who are named in the orders. Usually such third parties have been provided with the natural justice of prior notice (for example, they are prepared to supervise time between a parent and child and are subjected to the restrictions imposed by such an order having had these explained by the Court).
It is also important to note that children are not bound by orders. While their parents are required to facilitate and encourage compliance with orders, there are situations where children (particularly teenagers) simply refuse to spend time with a parent if they don’t wish to, even when this is ordered by a court. Defiance is a common reaction to imposed situations – sometimes this defiance is the result of a fractured relationship caused by violence, abuse or other genuine cause. Sometimes it is the result of a cynical campaign of undermining by the other parent. This (and the role of the school) will be discussed in a future article.
Clearly a school is not a party to a court order and is therefore not bound. However, it is still prudent for school personnel to respect court orders, and certainly acting in “contempt” of court orders by assisting a party to actively breach orders could have severe consequences. Extreme cases of individuals assisting a parent to act in contempt (such as hiding a child under an assumed name) have occurred.
In most cases, a school’s responsibility is a simple matter of enrolling a child or refusing to enrol a child, altering records to ensure the correct persons are obtaining copies of school reports and notices and other administrative activities to facilitate the operation of orders. There is, however, a line to be drawn between a school appropriately facilitating compliance with the court order and a positive duty to enforce if there is a breach of court orders by a parent.
“COMPLIANCE” AND “ENFORCEMENT”
It is not the school’s responsibility to actively enforce orders if they are being breached by a parent. This is the job of the courts. This may sound obvious, but the moral authority and personal relationships of trust and respect built up over time (particularly when parents have lost the respect of their children through undermining each other’s authority) can blur this line. Parents sometimes request a school to step in and this should be avoided. Appropriate referrals to mental health professionals are warranted when welfare issues arise.
The most graphic example of the “school in the middle” is where the “wrong” parent arrives to collect a child. On a practical level, it is unlikely the teacher at the gate will have a copy of the relevant order in their pocket and be aware of whether it is a “family violence” order obtained under state law or a “parenting” order obtained in a federal jurisdiction, assuming it has not been amended, suspended or discharged. Even were the teacher to have thorough knowledge of the legal situation, it is not the duty of the educationalist to interpret and enforce an order. The following comments must be read in that context.
If there is a family violence order in place (such as an “intervention” Order which prevents a parent from attending at the school or being in the vicinity of the child as an “affected family member”) a breach of such an order is a criminal offence. Accordingly, it is appropriate to contact the local police as would be the situation were a member of the public to witnesses a crime.
If there is a “parenting” order which specifies which parent should be collecting on a given occasion, again it is not the duty of a teacher to step between a child and their parent or to umpire a dispute. Even if not couched as “family violence” orders, doing so is potentially dangerous. Many orders are put in place due to concerns as to mental health, drug use and violence. The vast majority of assaults and homicides are perpetrated by family members of the victim.
In both scenarios, situations can quickly escalate and both the teacher and child can be endangered. It is appropriate for the police to be called if there is any breach of the peace or the potential for a situation to escalate. Police have the training and equipment to diffuse or otherwise handle such situations. They can also deal with any welfare issues which arise through a parent being under the influence of drugs or alcohol.
Bernadette Johnston is Special Counsel at Berry Family Law and has been practising in the area of Family Law since 1989. Having a Dip Ed from the University of Melbourne has lead to a particular interest in high conflict parenting disputes which often impact school-aged children (such as relocation and parental alienation matters) and the issue of educationalists caught in the crossfire of Family Law matters. Bern is a member of the Law Counsel of Australia and the Law Institute of Victoria, where she is a member of the Family Law Executive Committee and Courts Practice Committees. Bern may be contacted at Bjohnston@berryfamilylaw.com.au or (03) 9321 3105.
You can also connect with Bernadette via LinkedIn or Berry Family Law via LinkedIn.
