School choice is one of the most important decisions that parents ever make. School environment plays an important role in a child’s academic, social, and future prospects. Sadly, nevertheless, it could be hardly possible to determine who has the right to decide the school placement, as the parents’ opinions can be conflicting. There are several factors of such a decision in Australia, in line with parental agency, law, and the child’s welfare.
Parental Responsibility in School Placement Decisions
In Australia, parental responsibility is equal between parents unless there is an order to the contrary by the court. Parental responsibility involves making top-level, long-term, life-long decisions for a child’s upbringing, such as education. That is, both parents should preferably reach the same decision over which educational institution to send their child.
When parents have joint parental responsibility, they have a joint responsibility in the process of decision-making about the schooling regime. However, in the event of conflict, mediation or litigation may be required to conclude the conflict. When disputes arise, who decides a child’s school placement becomes a crucial question. As when one parent has sole parental responsibility, the issue of whether to enroll the child in school is in the sole discretion of the parent, without any need for concurrence with the other parent.
What Happens When Parents Disagree?
Conflicts over school placement can occur for various reasons. One parent may be an advocate for private school, and the other may be an advocate for public school. Decision-making is also influenced by distance, tuition cost, religious/cultural affiliation, and academic performance.
If parents are unable to see eye to eye, they are driven to arrive at the decision they desire through negotiation or family dispute resolution services. Mediation is often a preferred method, as it allows both parties to express their concerns and work towards a mutual agreement without the need for legal proceedings.
When mediation falls through, one or both of the parents may petition the court to decide on school placement. The court will decide, taking into account what is in the best interest of the child, including, but not limited to, the following:
The child’s current school and its effect on stability.
- Educational opportunities at each proposed school
- Parental ability to support the child’s education
- The child’s mind (if the mind is old enough).
- Practical considerations like travel time and financial implications
The Role of Family Law Courts
In situations in which legal action is deemed to be appropriate, Australian family law courts shall form a judgment in accordance with what is in the best interests of the child. In the context of schooling, the courts generally prefer consistency and predictability, provided there is a proper reason for a change of school.
For example, when a child has already been attending a school for a long time and is doing well academically and socially, the court may be hesitant to interrupt the rhythm of their school life. Nevertheless, if there are fears of bullying, academic challenges, and/or the cost of a school choice, the court may look to an alternative placement.
At Pearsons Lawyers, our specialist family law group supports parents in dealing with these challenging legal issues so that decisions reflect the child’s best interest and educational development.
Legal Considerations for Sole vs. Shared Parental Responsibility
Parental responsibility (i.e., legal financial responsibility for a child) in Australia can be shared or exclusive (i.e., sole). However, if parents step forward to carry responsibility for their child, there is a need for agreement about the education of that child. There is a scenario in which, with respect to the parent who is refusing or who does not prioritize the child’s welfare, judicial intervention is the only option left open to the other parent.
If a parent is given sole parental responsibility, he/she is entitled to act unilaterally in matters of education. However, the other parent can still challenge the decision in court if they believe it is not in the child’s best interests.
Can a Child’s Preference Influence the Decision?
Occasionally, the school of choice and the school assignment preference of the child might be considered, if and only if the child is old enough to express a firm opinion. Counsel reviews the age, understanding, and reason for a child’s expressed desire. But who decides a child’s school placement ultimately? The choice is, regardless, taken in favor of the child’s interest, not of the one child’s interest.
Practical Steps for Resolving School Placement Disputes
- Open Communication: For the sake of parents, it is recommended to at least attempt to come face-to-face with, and approach in an objective and educational manner, their own preferences from a practical and educational perspective.
- Mediation and Family Dispute Resolution: When consultations do not work, mediation by professionals can be used to induce agreement amongst the parties, without recourse to the proceeding of the civil nature.
- Legal Advice: Seeking legal advice from family lawyers, e.g., Pearsons Lawyers, will at least clarify parental rights and responsibilities.
- Court Application: When there are no other possibilities, the court may be the last resort due to making a decision to “apply to the court. A judge shall decide the most appropriate placement for the child, according to the interests of the child.
Conclusion
The question of who makes the final decision of where a child will be educated can be complex, particularly when the parents have different opinions. In Australia, responsibility for this responsibility is generally shared between both parents, but that may not be the case if there is a court order to the contrary. Disputes are encouraged to be mediated, but, as appropriate, court intervention may also be required. For these issues, the paramount wishes of the child will continue to be a governing factor.
However, if your child is having trouble entering a school, it is important to get a legal advocate who can help explain his/her rights and options. At Pearsons Lawyers, specialist information and assistance is offered in family law in order to allow parents to plan appropriately for their child’s educational and emotional needs.
