There are many circumstances in which a school may find itself in a position of conflict as between a student and one or both of their parents when it comes to, for example, parent pick-up arrangements, accessing student information and involvement in school activities. A school is usually not a party to family court proceedings and must be made aware of any orders that may impact how it administers its duty of care to a student.
A school's obligations
Schools should have policies in place to manage family law related issues and Court orders to ensure they are in compliance with obligations under the Education Act 1990 (NSW) (Edu Act) and the Family Law Act 1975 (Cth) (FL Act).
The primary focus of a school is the continued education of a student. It is not the role of a school to enforce family court orders or resolve family law disputes. The FL Act gives parents joint responsibility for their children until they are 18 on major, long-term issues. However, as a child matures, the views of a child are taken into account by Courts in the determination of issues. A school should also respect the student's views and, where these views are in conflict with those of their parents, the school's decisions should be based on the best educational and welfare interests of the student.
Parents have a responsibility to provide schools with copies of any Court orders which may impact on the school. In the absence of specific Court orders, each parent is entitled to:
Know where their child is enrolled;
Participate in school related activities; and
Have access to documentation relating to their child unless subject to any privacy laws.
Conflicting court orders
In the event of an Apprehended Violence Order (AVO) being in place against a parent and protecting a student, the AVO does not of itself prevent that parent from having contact with a child. If a FL Act parenting order grants access to a parent and an AVO may be in conflict with these orders, the parenting orders would prevail over the AVO. However, a school should also balance the risks posed by a parent to satisfy the duty of care it owes to a student. In doing so, a school should ensure relevant staff are made aware of these orders but staff should not place themselves in possible harm in order to try and resolve issues between parents and contact Police if any conflict arises in this respect.
For any location or recovery orders, the school should ensure to comply with Police but approach these matters with sensitivity and care. Similarly, a school should ensure the same discretion and care is approached with any request for contact with a student from a person other than a parent.
The educational and welfare needs of a child are the primary consideration of a school in family law matters which may at times impact on a child's education.
Schools should have policies and procedures in place that:
Require parents to notify the school of relevant court orders and any implications they have on how the school administers its duty of care to a student; and
Train staff on how to deal with situations of conflict, including when and to whom an issue should be escalated.
Colin Biggers & Paisley can assist schools with creating policies to balance and manage their legal responsibilities under both the Edu Act and FL Act and respond to any issues as they may arise.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2023.