Mediation in family law is not always only centred around money. Often parents are also concerned about the correct way to raise their children. Each family and person has their own story and beliefs pertaining to this and sometimes a couple will differ on their opinions. Each case needs to be heard on its own merits and the facts and circumstances looked at on an individual case level as they can be very different. ABC recently aired a report on Family court rulings on how to raise children on Law Report. https://radio.abc.net.au/programitem/pgOVkyyXJG?play=true
Some of these cases can refer to school choices and the child’s name. The primary consideration should always be the welfare of the child and in the majority of circumstances it is better to have mediated resolutions rather than litigation, not only to save on legal fees, but these fees could be better spent on the child’s education and welfare. Couples should participate in counselling and family dispute resolution, or mediation, to lower the effect litigation and the ensuing pressure and arguments a court case can have on children.
As one judge commented, “They should take a deep breath, look around and think and find better ways to cope with the anger, bitterness and aggression that they have for each other and consider the devastating impact that these proceedings may be having on their kids and the devastating impact on their economic circumstances.”
These thoughts are discussed here on ABC radio HERE.
Before attending any type of mediation or litigation regarding which school a child attends there are some things that a parent needs to consider such as:
1. That simply because the child lives with one parent primarily, that parent does not have the right to make the decision alone as to where the child attends school;
2. Decisions of schooling need to be made by both parents, unless a sole responsibility order is in effect;
3. Even where an equal shared parental responsibility order exists, the Court can make a final decision as to the choice of school for the child, but is very reluctant to do so and cannot chose between a private school and a government public school;
4. Whether the child is of an age to express a view and if so, what that view is, the court will consider the child’s views with significance and is unlikely to depart from them, where that view has been expressed without influence from either parent and where the child has the maturity to understand the implication of his/her view. This is not to say that the Court cannot depart from the child’s wishes and form its own conclusion as to what is in the best interests of the child;
5. The practical arrangements for the child travelling to and from the school and what impact this will have on a child. For example, if a child of 6 years of age needs to spend over an hour travelling to get to school, then this may be seen as onerous on the child and not in their best interests;
6. The nature of the relationship the child has with either of his/her parents and the attitude to the child and the responsibilities to parenthood that are demonstrated by each of the child’s parents. If one parent has been very involved in the children’s day to day education and learning and has attended all extra-curricular activities and the other parent has had non-involvement, then this may impact on the decision of the court;
7. The court will consider the likely effect of any change in the children’s circumstances. For
example, if the child is moving from one high school to another, then this will be an important issue;
8. Whether the parties had agreed to the child attending a particular school and any evidence that is available to support this, such as a signed enrolment form;
9. The court will consider who will pay the school fees, if that is an issue and may consider anything else that it relevant to the determination of the choice of school;
10. Finally, the overriding, paramount principle that governs the decision about which school a child attends is what is in the best interest of the child.
As previously stated, each case is considered by the Court on its own extenuating circumstances and individual merit, so will be different from one another. During mediation both parties will have an opportunity to express their ideas, opinions and beliefs about their own circumstances and an unbiased mediator can assist parents in making their own decisions and reaching a resolution which is beneficial for all involved.