When Schools are caught up in Family Court proceedings - Legalwise Seminars

Berry Family Law Managing Partner James Turnbull discusses what happens when schools are caught in the crosshairs of Family Court proceedings.  To hear more about how family law issues apply to schools, James and Berry Family Law Special Counsel Bernadette Johnston will present a seminar on the topic, Family Law and Your School: A Comprehensive Guide at the School Law Symposium: Risks, Duties and Liabilities on 5 June.

Introduction

A small portion of parenting disputes are not resolved and still need Court resolution.  In these cases, some parents either enlist or coerce the school to take a part.  Conventionally, Principals, Teachers and Counsellors eschew involvement in parenting litigation about their students.  This article focuses on how the school might be exposed to the Family Court.

Subpoena

A party to proceedings about parenting may request the Family Court to issue a subpoena to collect relevant evidence.  There are three types of subpoena.  They are to:-

a. Produce documents;

b. Give evidence; and

c. Produce documents and give evidence.

So what happens when a subpoena is received?

A practical checklist may assist.  In particular:-

1. To whom is the subpoena addressed? A subpoena for school records should be addressed to the person in control of the records.  In government schools, normally that would be the Director General of the Department of Education. In private schools there should be an administrator assigned for that role.  The subpoena must name a person.  If it is addressed only to the school or to the Department of Education, the subpoena is deficient and need not be answered.
2. Was conduct money tendered? A subpoena must be served together with “conduct money”.  This is a sum judged reasonably sufficient for the person subpoenaed to travel from the school or from the Department of Education to the Court in order to provide the documents, to give evidence, or both.  If conduct money is not supplied the subpoena is not properly served.  A subpoena issued from the Federal Circuit Court is required to be served with a minimum of $25 of conduct money.
3. Are there difficulties in complying with the subpoena? As a subpoena is a compulsive order from the Court. Because of this compulsive nature, the Court ordinarily places limits on what is required.  The subpoena should be very specific regarding the documents needed.  If for example the subpoena requested:-

“All documents in your possession regarding the student XYZ“,

there might be thousands of documents which mention that student particularly if they have been at the school for a long period of time. If the net of a subpoena is cast too wide, the party required to comply with it may object.

The subpoena should be served with a draft of a Notice of Objection.  If obtaining and gathering together the documents is overwhelming, difficult or oppressive you may say so in an objection. The Court may then rule upon whether compliance with the subpoena is required.

A well-crafted subpoena will identify specific documents which can be ticked off, making the task of compliance an easier one.  This should be the aim of the author of the subpoena.

4. Time for service – A subpoena to produce documents must be served at least 10 days before the date required for compliance. A subpoena to give evidence must be served seven (7) days before the date required for compliance.

In special circumstances, the Court may shorten the timeframe. However this is the exception rather than the rule.

The Family Report

A more common way for the school or teacher to be exposed to a parenting case is through a Family Report. The Court orders the preparation of a Family Report in many parenting cases. This Report is authored by a child welfare professional; often a psychologist or social worker. That author must gather information directly from the parents, teachers, and healthcare professionals and often from the student themselves.

A Family Report author may give the school or teacher an authority signed by the parents permitting the release of information. The author will often follow that up with a telephone call or a letter to gather information. It is important to carefully consider the authority provided and then give that author only information as should be provided under the authority.

Affidavits

Teachers may be pressured by parents to take part in their parenting case by executing an Affidavit. Under the Australian legal system, an individual cannot be forced to sign an Affidavit. A teacher should carefully consider all appropriate protocols. If in doubt, contact the Department of Education, or check the guidelines on the Department’s website. It is often unwise to become too involved. The teacher’s responsibility is to the student and not the parent. 

Managing Partner James Turnbull, LLB, ASLIV, B.App.Sc., became accredited as a Family Law Specialist in 1997. He has worked exclusively in family and relationship law for 25 years. James believes that while each case is unique, there are very few fact scenarios which he has not encountered. This experience allows him to work in conjunction with the other practitioners in the firm to generate positive options and outcomes. James lectures to the legal profession and to other groups including mental health professionals, school principals and school administrators in family law. While more of his time is spent in property cases, he still advises in the difficult parenting matters, particularly those which involve a request to relocate children interstate or overseas. James has never lost a relocation case. Connect with James via LinkedIn .