Amendments to the Family Law Act 1975 (Cth) which took effect on 6 May 2024 significantly change the way the family law matters will be decided. While previously the law focused on the rights of the child and the responsibilities of the parents, the amendments now bring into sharp relief that the focus should be on the best interests of the child, including ensuring their safety.

Changes to the Family Law Act

Parental responsibility means all the duties, powers, responsibilities and authority which parents have in relation to children. Unless there is a court order allocating parental responsibility to a particular parent, each parent can make decisions relating to the long-term care, welfare, and development of a child, for example, enrolling them in a school. Where there is no court order, parents can exercise this decision-making power either in agreement with the other parent or on their own. This understanding of parental responsibility is not changing under the amendments.

However, a significant change to the law is the removal of the presumption that it will be in a child’s best interests for parents to be allocated equal joint decision-making responsibility for decisions about long-term issues, such as schooling, health, and education. Further, the requirement that a court must consider an ‘equal time’ arrangement has been removed.

What the changes may mean for schools

  • There may be more variety in the types of parenting orders that are made, and schools should not assume that parents have equal joint decision-making power, even if the child is living in an “equal time” arrangement.
  • There may be more orders that allocate decision-making responsibility to only one parent for some matters (such as schooling) and to both parents for other matters (such as religion and health).
  • Where there are no court orders or there is an order for equal decision-making for all matters, schools can continue to rely on one parent’s communicated decision as if it is a joint decision of the parents.
  • However, if there is an order for joint decision-making and parents communicate conflicting instructions, there is no decision the school can make – they should put the responsibility back on the parents to resolve the dispute between themselves.

In the context of a school, some examples of major-long term issues relating to the care, welfare, and development of a child could be:

  •  Enrolment of a student
  • Termination of an enrolment
  • Providing counselling services to a student
  • Senior subject selection
  • Long camps
  • Inherently dangerous activities like horse-riding and contact sports

Whereas some examples which may not require the consent of both parents are:

  • Participation in a workshop or series of workshops designed to improve a student’s social interactions
  • Sporting events
  • Most camps

What about Domestic and Family Violence?

In the wake of recent public outcry, there are significant changes on their way in many states in relation to their domestic and family violence laws.

In Queensland, for example, laws to try to address coercive control were passed on 6 March 2024 and will come into force in 2025 (click here for more information).

It is very important for schools to be aware of any Domestic Violence protection orders that may exist between parents, to ensure that they do not accidentally enable a breach or otherwise expose children and other adults to domestic and family violence.

It is important to remember, however, that it is not the responsibility of a school to enforce the requirements of a protection order or otherwise protect a victim-survivor from abuse.

Schools should have specific policies for dealing with protection orders and violent incidents on-campus to ensure that they are meeting their obligations to protect students and staff.

Next Steps

We regularly provide advice to schools about how to interpret family court orders, how they interact with domestic and family violence orders, and the school’s obligations generally when dealing with separated families. We can also assist to prepare formal family law and domestic and family violence policies.

If you require advice in this area, or would like one of our family lawyers to give a presentation to your school on any of the matters raised above, please contact us.

This article was written by Tabitha Gulley.