07 Jan Do Schools have an obligation to comply with Family Law parenting Orders?
Parents will often ask us whether School staff have a say in whether Family Law Parenting Orders should be followed or not.
Whilst it is not the School’s role to enforce or police parenting Orders, the School Principals and Teachers will often find themselves in a difficult position trying to manage a situation where two separated parents are in conflict with each other about who has the care of the child that afternoon. The situation becomes even more difficult for the school staff when there are no court orders in place.
When the children are in the school’s care, during the day each school day, the school has a responsibility to make sure that the children are safe and that their educational needs and welfare are met. This responsibility extends to making decisions about which parent the child goes to at the end of the school day. For that reason, the school staff need to be aware of the existence of any Family Law Orders, Parenting Plans and/ or Agreements that separated parents have in place about their children’s care arrangements. Parents should keep the school regularly informed of any changes to those arrangements to assist the school to monitor this.
The NSW Department of Education has their own Guidelines to assist Schools to handle situations in relation to family law disputes between parents occurring at school. It is often the case that the disputes will result in the Principal needing to obtain advice from their legal department, whether it be through the Department of Education, the relevant Catholic education office or the board of the individual Private school as to what is best to do in certain situations.
The Department’s Guidelines assist the School if those situations arise. Some of the key points are identified in the guidelines below:
• it is not the role of schools to enforce family court orders or resolve family law disputes.
• the primary focus for schools in dealing with family law matters which impact on a child’s education should be ‘the educational and welfare needs of the child’
• where the views of a student are in conflict with those of his or her parents, decisions made should be based primarily on what is considered to be ‘the best educational and welfare interests of the student’
• parents have a responsibility to provide the school with copies of any court orders that impact on the relationship between the family and the school
• the guidelines alert staff to the possible impact of Apprehended Violence Orders and the need to be careful when dealing with families subject to such orders
• staff should not place themselves in positions of danger when trying to resolve any problems that may arise, but rather should contact local police if necessary
• advice is provided on issues to be aware of if and when school staff are requested to provide written statements or give evidence on behalf of families involved in family law related legal proceedings
The comprehensive guidelines are available on the Department of Education website. It also provides a range of examples based on actual cases encountered by schools for assistance of the schools and families generally.
Are schools bound by parenting orders?
At the end of the day, a School is not bound by parenting orders. The Court Orders impose responsibilities on the parents/carers of the child (as named in the Court Orders). The parents/ carers are legally bound to comply with the order and not the school.
Whilst it is not the school’s role to comply with, enforce or police Family Law Orders, there are often situations where School staff are asked to make decisions about which parent would be collecting the child, if and when there is a conflict between the parents. A Principal may often make that decision, based on advice.
Ordinarily, the school will have regard to whether there are any Court Orders are in place and what the terms of those Orders are. The school will, in most cases, try and follow the Orders by ensuring that the child is sent home with the parent who is responsible for the child for that afternoon (as set out in accordance with the Orders), unless there is some agreement to the contrary or if there is some risk concern that gives rise for a basis for the staff to not to follow them.
If the School perceives that a child is at risk of harm being in one parent’s care (even if a court order allows it) the school may decline to allow the child to go home with that parent. If the School staff considers that a child is at risk, the staff have a legal obligation to report the situation to the relevant state authorities whether it be the Department of Communities and Justice (in NSW) or the Police where appropriate.
Sometimes a Family Law Order will prohibit a parent from either collecting a child from the school and or from attending at the child’s school. In those circumstances the School would have to follow the orders, so as to not expose the child to a risk of harm by virtue of being in that parent’s care when a Court Order prohibits it.
It may sometimes be appropriate for the School to contact the other parent so as to ensure that the School is satisfying their obligation to ensure that the children leave with the appropriate parent.
If there are current court proceedings on foot and an Independent children’s lawyer has been appointed by the Court, then it is often a good idea for the School Principal to be in contact with the Independent Children’s lawyer about any issues of concerns pertaining to the child.
Different Principals will have a different approach based on what they perceive is best for the individual child, based on the individual facts of the situation. They will largely make decisions on advice.
At the end of the day, a child’s school is intended to be a safe haven for a child; a place where a child can concentrate on his or her own educational needs and personal development, free of the stress of the conflict between his or her parents. Consequently, it is always better for children when their parents can keep their family law disputes away from and outside of the school forum.
It can often be unhelpful or embarrassing for a child to see both his or her parents in conflict with each other at their school. It can be particularly traumatic or distressful for a child to see the Police arrive at the school after an incident at the school.
That is why, parents should try to;
• Avoid any conflict with the other parent at the school;
• Make sure that they have agreed arrangements as to who will be responsible for collecting the children;
• Have boundaries/ rules in place about who will be attending what activities at the school and when to avoid any uncomfortableness if there are issues between the parents;
• Speak to their child’s School Teacher or Principal in relation to risk issues;
• Make sure that the School has copies of any relevant paper work including Court Orders, Agreements or AVOs (Apprehended Violence Orders) and that the school is made aware of any current court proceedings relating to the child/ren.
We trust that this article assists you in understanding a School’s role in relation to following parenting Orders when there is a dispute between parents and that it provides you with some useful tips and strategies to consider if and when problems occur at your child’s school.
Do you have concerns relating to Parenting Orders? Please contact Solari and Stock Miranda on 8525 2700 speak with one of our Family Law Team or click here to request an appointment.