Where schools stand in Family Law Orders

Berry Family Law Special Counsel Bernadette Johnston explains what Family Law Orders are and discusses the position of schools in this context. While most schools take the sensible precaution of keeping copies of any relevant orders relating to their students on file, this is usually only the beginning, she writes. Bernadette is scheduled to present for Legalwise on this topic during the June seminar series, which will be published online in coming weeks. 

The prevalence of family breakdowns and family violence in Australia is well known and our schools are charged with the responsibility of educating the significant proportion of children and young people impacted by these situations. Unfortunately, discharging this responsibility is rendered more onerous when schools (and the individuals working within them) are drawn into family conflicts.

While most schools take the sensible precaution of keeping copies of any relevant orders relating to their students on file, this is usually only the beginning. I am often asked:

• • What do these documents actually mean?
  • Is the school bound to act in compliance with them?
  • What is the legal situation when there are no orders in place and a dispute erupts?
  • What is the difference between the state and federal laws relating to families, and what happens when different orders seemingly contradict each other?
  • Who is entitled to speak to teachers and receive the newsletters and reports?
  • What is the position of the school when there is a dispute at the school gate?
  • Can the law be used to protect teachers?

It is clearly important for teachers, counsellors and administrators to have a working knowledge of the relevant law and the consequent extent and limits of their responsibilities. This is the first of a series of articles aimed at guiding educationalists through the maze of family law that impacts them professionally.

Let’s start with the basics – Separating parents often obtain parenting orders in the Federal Circuit Court or Family Court but what do such parenting orders actually mean?

• • Parenting orders are made under the Family Law Act, which is Commonwealth legislation. Save for extreme cases of contravention, orders under the Family Law Act are the result of civil (non criminal) court proceedings between the litigants.
  • Orders commonly cover whether parental responsibility for long term issues (such as where a child attends school or if they may undergo medical treatment) remains shared or is restricted to one parent.
  • Orders commonly specify the parent with whom the child lives or set out a timetable in which the child’s living arrangements are divided between both.
  • Orders can specify times a child spends with parents and the manner in which they communicate in addition to the living arrangements.
  • Orders can also deal with specific issues, ranging from the trivial (such as whether a child may partake in extra-curricular activities) to major issues of whether a child may attend a particular school. Be on the lookout for orders dealing with the school as a changeover location, whether a child may attend the school counsellor or whether either parents is restricted from attending school events.
  • Other interested people, such as grandparents and step parents (ie not just the parents) can also seek “parenting” orders.
  • Orders imposed after a contested hearing or made with the consent of the parties are equally valid.
  • Sometimes litigation can take many months and involve a number of “interim” hearings along the way, which can result in a series of orders. Care should be taken to look at the most recent order.
  • In extreme situations, orders can be made without notice to the other parent (“ex parte“) but are usually temporary given that natural justice requires that all parties impacted by orders be heard.
  • Orders which impact families can also be obtained in local/state courts. These more commonly deal with allegations of family violence (“intervention” orders, “apprehended violence orders”, and “stalking” orders fall into this separate category) and will be discussed in a separate article.

While parents often refer to their “rights” pursuant to orders, this is misleading. It is more useful to view orders from the perspective of a Court imposing responsibilities on parents in relation to the care, welfare and development of their children. It is the children whose rights the Court seeks to promote and protect. It is therefore the parties to the orders who are bound by them and who bear the risk of contravention proceedings for any non-compliance.

Whether a parent is contractually bound (or ordered) to pay fees to a private school is irrelevant to the operation of parenting orders.

It is common for parents to expect conformity with the terms of parenting orders from a school, but it is in relatively limited circumstances (such as when a subpoena is issued) that a school has obligations imposed on it directly. Likewise, parents often mistakenly assume their children are bound by orders. Again, while the respective parents are obliged to encourage compliance with the orders, their children are not directly bound.

You may notice the lack of familiar terms such as “guardianship”, “custody” and “access” in the above explanation, and indeed many people look for such terms when reading and interpreting family law orders. In fact, these terms have not been used by the Family Law Act since 1996. The term “guardian” may remain relevant under state law in limited circumstances (eg if appointed in situations where child welfare is an issue) or in an informal sense when an adult (such as a babysitter or grandparent) has the responsibility for a child delegated to them by a parent. Many schools therefore continue to correctly place the term “parent/guardian” below the signing clause on permission forms.

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.