Family Law and schools – managing separated families and complex family situations in a pandemic

Even in the midst of COVID-19, schools continue to navigate issues relating to separated families and complex family arrangements. Indeed, rules around travel and distancing have, in many cases, exacerbated existing issues and made matters more challenging for schools and families.

1. Rights and Responsibilities

It’s common for parents to interact with schools and assert their “rights” to access children or to require the schools to take certain steps they want. Parents may also do this via a lawyer. It is worth noting that the Family Law Act carries the overarching obligation that the best interests of the child is the paramount consideration when considering what time each child should spend with each parent.

Parents do not have “rights” under this legislation. This is consistent with a school’s duty of care, which provides that protection of students, rather than meeting demands of parents, is the school’s primary obligation.

The court considers that the best interests of the child are met by

  • firstly, encouraging a meaningful relationship between parent and child; and
  • secondly; protecting that child from harm or from being exposed to family violence.

Parental responsibility is defined as all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.

Equal Shared Parental Responsibility:

The legislation provides a presumption of equal shared parental responsibility.

This requires both parents to consult the other regarding any major long-term issue and make a genuine effort to reach a resolution in relation to their child, including education.

From a practical perspective, it is important that both parents be provided with all information regarding the child including school reports, newsletters and be able to attend school functions that parents would normally attend.

2. There is a dispute about school pick up. Are there court orders in place?

Separated families are frequently unable to reach an agreement regarding spend time arrangements for their child and will apply to the Family or Federal Circuit Court for orders.

Typically, Court Orders will stipulate if the parents have equal shared parental responsibility and what time each child spends with what parent. This includes which parents collects which child on which day. Notably, step-parents are allowed to have time with their step-child during their spouse’s time/days, so requests from parents that step parents “should not be allowed” to collect children will often need to be disregarded.

Critically, it is not the job of the school to “police” the separated families’ parenting arrangements. The onus is on the parents to continue to provide updated orders to the school. If they continue to disagree and give conflicting instructions to the school, the school can require the parents to sort matters out between them and then report back.

3. What do we do if there are no court orders?

If there is no formal documented agreement between the parents, the school should request a parenting plan or an agreement in writing between the parties about the spend time arrangements for the children.

For example, if the parent who does not have primary care of a child requests they be allowed to collect the child on a Tuesday afternoon, you should ask for an agreement in writing between them and the other parent.

4. Is there an intervention order protecting a student?

Intervention orders are becoming increasingly common in family law proceedings. Most of our education community will be familiar with family violence intervention orders which is typically an order, in place between family members.

An intervention order is a civil order and can be applied for by an individual personally or Victoria Police can apply for an intervention Order on behalf of a person and their children. An Intervention Order is made in the Magistrates Court, not the Family or Federal Circuit Court

5. Does the intervention order override the family law orders?

Typically, the interaction between intervention orders and family law orders can be complex, however, they do exist together. Importantly, a family law order will typically prevail over an intervention order to the extent of any inconsistency between the two documents.

This means that it is possible a parent, who is subject to an intervention order prohibiting that person from attending school, may still be permitted to collect their children on their spend time day under Family Court orders.

Because of this, and especially where family violence is of concern, it is important for the school to seek independent legal advice about how best to manage that family and the safety of the child and protected parent.

In an emergency situation where a school fears for the safety of a child (for example, when a parent who is clearly agitated or affected by drugs or alcohol is insisting they pick up their child), the safety of the child comes first. If necessary, keep the child in a secure location while seeking advice and contacting the primary caregiver and police.

Enrolment Procedure:

6. Who should sign the enrolment form?

Wherever possible, both parents sign the enrolment agreement so they are jointly and severally liable for fees. A school is not obliged to “re-jig” payment arrangements where one parent contacts the school, notifying of a separation and advising they intend to cease payment. The school may change arrangements if it chooses, or may need to if there are interim orders or other evidence as to the parents’ agreement regarding fees.

7. Can a parent withdraw a child from school without the consent of the other parent?

In most circumstances, no. Given the parents will likely have equal shared parental responsibility they need to consult the other before making any long term decisions regarding that child, such as changing their school enrolment.

8. What should we do if we are served with a subpoena?

A subpoena is a document that is issued by the Court for either the production of documents or attendance of a staff member to give evidence at a contested hearing.

A subpoena, similar to court orders, will always have basic form requirements such as being addressed correctly to your organisation, comply with timeframes for service and be accompanied by conduct money.

Parents who are before the court often want access to confidential material such as counselling records, to gain evidence about a child’s wellbeing.

In certain circumstances, your school may be able to object to a subpoena on specific grounds – most commonly if a subpoena is too broad or compliance may adversely impact a student’s wellbeing. Please note, the inconvenience of complying will not be considered adequate basis for a school to refuse. If you are responding, you should always seek independent legal advice, and this includes regarding privacy, so you do not inadvertently breach privacy of staff or students by complying with the subpoena.

Please note, if you do not raise an objection to a subpoena, you need to comply in full or risk being in contempt of court.


9. Do parenting orders continue to operate despite COVID-19?

All separated families have a continuing obligation to act in accordance with Court Orders. COVID-19 is no excuse. If parents are making demands on the school and failing to agree, the school can advise parents to apply to the COVID-19 list at the Family Court to seek urgent orders.

How we can help

If you would like any further assistance managing separated families, responding to subpoenas or assistance with enrolment documentation, please do not hesitate to contact us.