Schools are home to students from a wide variety of cultural, social and economic backgrounds. A particular challenge for schools associated with having such a diverse student base is keeping track of students’ familial arrangements, particularly in circumstances where a Court has made a Parenting Order under the Family Law Act allocating parental responsibility.
Schools should be aware of how the provisions of the Family Law Act 1975 (Cth) (“the Act”), especially as they relate to Parenting Orders, may apply to the provision of the school’s services. Some key reasons why a school should keep track of any parenting orders include the following:
- schools must ensure that a person enrolling a child has the legal standing to do so;
- knowledge of Parenting Orders assists a school to fulfill its duty of care to a particular student;
- school staff are likely to find themselves placed under pressure by a parent/guardian to enforce a Parenting Order; the school will need to be aware of the orders to fulfil its workplace health and safety obligations;
- a school, even as a third party and not being bound to comply with a Parenting Order, may be held to have contravened the Parenting Order if the school intentionally prevented compliance with the order by, or aided/abetted a contravention of the order by, a person who is bound by the order. While this may be an unlikely situation, schools should be aware of this possibility.
With a wide range of recent amendments to the Family Law Act about to come into effect, schools should take note of these amendments and consider what they might mean for their own ongoing operations.
What are the amendments?
The Family Law Amendment Act 2023 (Cth) (the “Amendment Act”) was passed by both Houses in October 2023, outlining some significant changes to the current Family Law system. Many of its key provisions are set to commence on 6 May 2024.
Whilst the majority of changes will impact upon how parenting decisions will be made by the Court, there are a number of points that may be relevant to schools.
“Parental responsibility” refers to the duties, powers, responsibilities and authority which parents have in relation to their children. From 6 May 2024, Courts will no longer make decisions based on the presumption that it is in the child’s best interests for both parents to have equal shared parental responsibility. Instead, the Courts will use a simplified set of criteria to determine what is in a child’s best interests and will allocate parental responsibility accordingly.
The simplified list of criteria will allow the Court to consider the unique circumstances in each parenting matter in a way that places the best interests of the child at the forefront of decision making. The amendments also require consideration of family violence orders, past family violence, abuse, and neglect in determining future parenting arrangements. The factors the Court will base decisions on are as follows:
- what arrangements would promote the safety (including safety from family violence, abuse, neglect, or other harm) of the child and the safety of each person who has care of the child (whether or not a person has parental responsibility for the child);
- any views expressed by the child;
- the developmental, psychological, emotional and cultural needs of the child;
- the capacity of each person who has, or is proposed to have, parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
- the benefit to the child of being able to have a relationship with the child’s parents, and with other people who are significant to the child, where it is safe to do so; and
- anything else that is relevant to the particular circumstances of the child.
Schools should note that the definitions of ‘relative’ and ‘member of the family’ will be expanded to include Aboriginal and Torres Strait Islander concepts of family.
Schools should be attentive to the fact that Parenting Orders are likely to become less uniform and more tailored to the needs of individual families. This will mean that schools will need to look more carefully at Parenting Orders and parenting arrangements when considering issues of enrolment, or when seeking authorities and permissions from parents. There will still be allocations of parental responsibility, however, it is likely that there will be a higher proportion of Parenting Orders that generally allocate parental responsibility to one parent only, or allocate parental responsibility to one parent only in relation to education and/or healthcare matters.
How can Schools prepare for the new system?
Schools best equipped for dealing with the changing family law landscape are schools that have the following in place:
- systems which ensure that the school has copies of all relevant and up-to-date court orders;
- systems for ensuring that the school is aware of which parent has been allocated parental responsibility for education (and possibly religion and/or healthcare matters);
- systems which ensure that the school is made aware of any changes to the allocation of parental responsibility;
- an updated enrolment contract that sets out how the school will deal with parents who provide Parenting Orders with their child’s enrolment;
- a Separated Parents Policy which sets out what will happen if the school is notified during the child’s time at the school that their parents have separated;
- a thorough understanding of the school’s, and its staff’s, duties of care towards the school’s students; and
- processes by which school decision makers can seek advice about specific situations.
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Article written by Eustacia Yates and Jackson Litzow