Family law guidelines
Guidelines to support schools dealing with family law issues.
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These guidelines attempt to balance the rights and obligations arising under the Education Act 1990 with those arising under the Family Law Act 1975 and other legislation.
Key points emerging from the guidelines are as follows:
- it is not the role of schools to enforce family court orders or resolve family law disputes.
- the primary consideration for schools in family law matters which impact on a child’s education should be the educational and welfare needs of the child
- where children are no longer living at home, the primary focus in decision-making should be the continued 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
- in the absence of any specific court orders, generally either parent has the capacity to enrol their children in school
- except in specifically defined circumstances which are outlined in the guidelines, it is mandated that a student must be enrolled using the name that appears on his or her birth certificate
- in the absence of specific court orders, each parent is entitled to:
- know where their child is enrolled
- participate in school related activities
- have access to documentation relating to his or her child subject to the provisions of privacy legislation and the department’s Privacy Code of Practice
- in relation to children who live with one parent only, the guidelines distinguish between contact with a child in accordance with a parenting order and incidental contact that arises as a result of a parent being present on a school site
- except in exceptional circumstances, permission will not be given to parents or other people to remove students during the course of the school day
- persons other than parents (for example grandparents) may seek to play a role in the education of children but such participation is always subject to parental approval
- the guidelines alert staff to the possible impact of Apprehended Personal 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 when staff are requested to provide written statements or give evidence on behalf of families involved in family law related legal proceedings
- special provisions relating to the operation of pre-school and other children’s services located in schools are also outlined.
A range of illustrative examples based on actual cases encountered by schools is included in the guidelines for assistance.
These guidelines provide advice for dealing with family law issues which impact on schools.
These guidelines apply to all NSW government schools.
The term “parent” includes a guardian or other person who has the custody or care of a child, as outlined in the Education Act 1990. A carer can either be appointed by a court, or a person can have the custody or care of a child even if there is no formal court order to that effect where the child’s parents no longer care for the child.
Sometimes someone who falls into the second category will provide the school with a Statutory Declaration for Informal Relative Caregivers to confirm the role they play. While this can indicate that a person has become a child’s primary carer it is not necessary for a person to have completed this statutory declaration for him or her to be considered a parent under the guidelines. Further information about Statutory Declaration for Informal Relative Caregivers can be found in Chapter 6 of the guidelines.
3. Superseded documents
These guidelines replace Dealing with family law issues in schools (2007)
A primary object of the Family Law Act 1975 (the Act) is to ensure that children receive adequate and proper parenting to help them achieve their full potential.
In relation to parents, the legislation is directed to ensuring that they fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. Parents share these duties. The legislation anticipates that parents should agree about the future parenting of their children.
Subject to any court orders to the contrary, each parent has parental responsibility towards their children, which includes having the opportunity to participate in decisions that affect their children.
In relation to children, the Act indicates they have the right to know, and be cared for by, both their parents regardless of whether their parents are married, separated, have never married or have never lived together. Generally, children have a right to spend time with and communicate with both their parents and with other people significant to their care, welfare and development on a regular basis. Parenting orders are child-focused and are for the benefit of the child. The court’s objective when framing parenting orders is to help the child have as normal a relationship with both parents as is possible.
It is important to note that the Act is drafted in terms which indicate children have certain rights whereas the position of parents is couched in terms of duties and responsibilities.
Family relationships can also be subject to orders made under the provisions of the Children and Young Persons (Care and Protection Act) 1998. Such orders often mandate that Communities and Justice undertake a supervisory role in respect of the welfare of any children. Staff need to be alert to these circumstances to ensure the safety and well-being of any children subject to the orders is met.
5. Department’s position
The department has an obligation, as far as practicable or appropriate, to ensure that every child attending a government school is given the opportunity to achieve his or her educational potential. In meeting this obligation, the department relies to a significant degree on the cooperation and assistance of parents.
The primary consideration for schools in family law matters which impact on a child’s education should be the educational and welfare needs of the child.
In order for the department to meet its obligation, and for parents to meet their responsibility, it is important that when a family breakdown does occur, parents reach agreement regarding issues which might impact on the school and advise the school of that agreement. When parents cannot agree it is expected that they take steps to obtain court orders that deal with the issues relating to their child’s schooling and provide a copy of those orders to the school.
In meeting its obligations to students and parents the department, relies on the following principles:
- the education of a child is primarily the responsibility of the child’s parents
- generally, it is assumed that both parents are involved in making decisions about major long term issues affecting their child’s schooling
- those decisions should focus on the child’s needs at school, when making decisions about the relevance to and impact of family court orders and a child’s education the principal should make decisions based primarily on what he or she considers to be the best educational and welfare interests of the child
- where parents cannot agree on what is in their child’s best interests, it is the role of the court, not the school, to determine those interests
- it is not the role of the school to enforce family court orders. The school is not the appropriate place for family disputes to be resolved nor is it appropriate for school staff to attempt to resolve such issues
- any decisions the school has to make which could affect the parents should be unbiased and, as far as possible, not favour either parent
- the obligations imposed by other legislation, such as the Privacy and Personal Information Protection Act 1998 and child protection legislation and policies, also need to be considered when dealing with family law-related issues
- the ongoing effective and efficient operation of the school and a parent’s obligations under the Education Act 1990 to ensure that their children receive an education takes precedence over any interests parents may assert they have
- where doubt arises in resolving issues, the educational interests and welfare of the child are to be the paramount consideration.
Principals should regularly remind parents to advise the school immediately of any change in family circumstances which may impact on the school. Attached at Appendix 1 is an information sheet that can be provided to all parents, especially at enrolment, which summarises the guidelines and makes clear the department’s position and its expectations of parents. Appendix 2 is an abridged version of the information sheet that can be distributed on an on-going basis in documents such as school newsletters.
6. Definitions of commonly used terms
- “Access” and “contact” have the same meaning as “spends time with”. It is an old term used by courts prior to June 1996.
- “Child” for the purposes of the Act, means a person under the age of 18 years.
- “Components of parenting” – is terminology introduced from 1 July 2006 and relates to matters previously addressed by specific issues orders.
- “Contact” is an old term and means contact one or both parents or other specified people have with children. The term “contact” is now used in a generic, informal manner. Since 1 July 2006, parenting orders relate to the separate issues of the time a child spends with a person, and the time when a person may communicate with a child. The word “communicate” has a wide meaning and includes telephone calls, letters, email and other forms of electronic communication.
- “Contact order” was a court order made prior to 2006 in favour of a person that allowed that person to have contact with the children named in the order in accordance with the terms and any conditions of the order. From 1 July 2006, orders made by the court refer to the time a parent is able to spend with a child and the times the parent will be able to communicate with the child.
- “Custody” has the same meaning as a residence order coupled with parental responsibility for the day to daycare of the child. It is an old term used by courts prior to June 1996.
- “Guardianship” has the same meaning as parental responsibility for the long term care of the child. It is an old term used by courts prior to June 1996.
- “Interim order” is a temporary order made by a court, sometimes in urgent circumstances. It remains in force until the court makes a further or final order in respect of the matter, or if a date is specified in the interim order, until that date.
- “Injunction” is an order regulating the behaviour of a person and can be directed to various aspects of the family relationship. Usually, injunctions restrict the interaction one parent may have with another but they may also restrict interaction with a child.
- “Location order” is an order made by the court requiring a person named in the order to provide information to the registrar of the court concerning the address of persons named in the order.
- “Major long term issue” is a new term inserted into the Act from 1 July 2006. While not exclusive, it refers to matters such as education (both current and future), religious and cultural upbringing, the child’s health (not including day to day issues), the child’s name and any changes to the living arrangements that make it significantly more difficult to live with one parent. “Education” includes apprenticeships and vocational education training. Both parents must be involved in any decisions concerning major long term issues.
- “Out of home care” means children and young people who:
(i) are subject to an order of the court that allocates parental responsibility to the Minister for Communities and Justice, or for whom the Secretary of Communities and Justice has guardianship or care responsibility, or
(ii) children in the parental responsibility of the Minister (where that includes residence) by an interstate transfer, or wards of another state or territory for whom the Minister is providing services while they are in NSW.
- “Parent” includes a guardian or other person who has the custody or care of a child.
- “Parental responsibility”, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
- “Parenting order” is an order made by the court dealing with the issues of contact, residence, maintenance or any other aspect of parental responsibility.
- “Parenting plan” means an agreement in writing between the parents of a child that deals with the issues of contact, residence, maintenance or any other aspect of parental responsibility.
- “Recovery order” is an order made by the court requiring a person to deliver a child to a person or persons named in the order.
- “Residence order” is an order made by the court prior to 2006 that directed a child is to live with a parent. A residence order did not confer any other duties, obligations or responsibilities upon the parent or other person concerned. Since 1 July 2006, any orders made by the court will not refer to “residence” but rather will indicate who the child will “live with”.
- “Specific issues order” is an order made by the court dealing with any aspect of parental responsibility for a child other than contact, residence or maintenance. From 1 July 2006, these aspects of parental responsibility are known as the components of parenting.
- “Statutory Declaration for Informal Relative Caregivers” allows a person to declare that they have primary responsibility for the regular care of a child (or children). It must be made by a relative of the child. The person making the declaration must be over 18 and live with the child. It is valid for 6 months or until the child stops living with the person. It does not have the status of a court order and does not give the person who makes it any additional rights or powers over the child. Whether the person who makes the declaration is to be regarded as a parent for the purposes of the Education Act and these guidelines will depend upon the nature of the relationship. Advice can be obtained from Legal Services if a staff member is uncertain about the accuracy or effect of the Informal Relative Caregivers Statutory Declaration
When dealing with families subject to family or marital breakdown, principals should ask for a copy of any court orders, including a copy of any orders that vary earlier orders provided to the school. Principals should advise parents that the orders will not be enforced by the school but will be used to ensure the educational and welfare interests of the student are properly addressed. Principals should ensure that the orders are treated as sensitive, are held securely and are only made available to staff required to make relevant decisions about them.
Generally, it is for individual principals to determine where copies of court orders are kept and who has access to them. As a minimum, a copy of any orders received should be retained with the student record and be included in any information forwarded to another government school when a student changes schools. It is also important that relevant staff who may have to act as principal are also aware of and are able to access copies of the orders. Principals must also consider whether it is appropriate for any other staff who have supervision responsibilities be made aware of the provisions of any orders.
Changes to the Act in July 2006 altered the meaning of the term “contact”, as indicated in paragraph 6.1. Principals should note that when dealing with disputes or other issues concerning contact, they will need to consider that two separate concepts may be involved – that is the time one parent is spending with a child and the times when the parent may otherwise communicate with the child.
7. General issues relating to children
The Act states that parents retain parental responsibility for their children up until the age of 18 years. The Act also states that both parents must be involved in making decisions about major long term issues involving their children. Persons under the age of 18 are generally referred to as children, though some specific acts may also refer to young persons – for example, the Children and Young Persons (Care and Protection) Act 1998 defines a “child” as being someone under the age of 16 and a “young person” as someone aged 16 or 17.
While parents have parental responsibility for their children up to the age of 18, it is generally accepted that as children become older and more mature, they are more capable of making their own decisions about a wide range of issues. In family law matters, the views of the child, particularly an older child, are generally taken into account by courts when determining issues affecting their relationships with their parents. The courts often appoint a separate legal representative for the child who will then advocate for the child or children.
There is no specific law about when the views of a child might take precedence over those of a parent or both parents. A number of factors are relevant including the issue in question, the age and maturity of the child and what, objectively, is in the best interests of the child.
Sometimes students under the age of 18 leave home and live separately to their parents. This can happen with or without the permission of the parents. The students may live with the families of friends, older siblings, other relatives or in hostel-type accommodation. They may indicate they do not want their parents to be informed about any issues arising from school. They may or may not be financially independent of others.
While this situation involves sensitive issues, the primary focus of the school should be the continued education of the student. The principal should ask the student for details of an adult who can be a point of contact for the school regarding issues such as permission notes, emergency contact etc. If the student is not able to provide details of an adult, a note of this should be made and any further dealings regarding school activities can be undertaken directly with the student. See legal issues bulletin 53.
Principals should always consider the age and maturity when deciding what if any, action needs to be taken when students choose to live independently of their parents. Principals should consider, for example, whether it is appropriate to arrange for assistance for the student in resolving any on-going difficulties they may be having with the parents. It may be necessary to make a report to Communities and Justice as required by relevant child protection legislation and policy guidelines if the principal or other staff member has reason to suspect that the student is at risk of harm.
It should be noted that the Children and Young Persons (Care and Protection)Act 1998 provides that a person can make a report to Communities and Justice that a child (that is someone under the age of 16) is homeless. A report can also be made about a young person ( that is aged 16 or 17), provided the young person consents.
Principals may have to deal with situations where the student’s views are in conflict with their parents. It is important that principals take into account the views of the student, however, any decision made must be one that the principal believes is in the best educational interests of the student.
Principals should consider the maturity of the student and asses their capacity to make a reasonable decision in their own best interest. If a principal believes that a request or an action by the student is not in their best interest the department’s Privacy Code of Practice allows principals to disclose information to a student’s parents if it is believed that such disclosure is in the best interests of the student. If a decision is made contrary to the student’s request, the Privacy Code of Practice allows for the student to seek a review of that decision. Any such review will take into account the capacity of the student to make a decision which is in their own best interest.
In cases where the Minister for Communities and Justice has either sole parental responsibility over a child or parental responsibility for educational issues, decisions in respect any educational issues, including the provision of information, may be directed to the relevant designated agency (that is the Department of Communities and Justice or other authorised agency) if requested.
Enrolment in a school is regarded as a major long term issue. Unless there are court orders to the contrary, any decision about enrolment must be made jointly by both parents. A school’s decision should, subject to the Education Act 1990 and Departmental policy, accord with the parents’ decision. There is no requirement however for school staff to independently establish that any decision to enrol in a particular school has been made jointly by the parents.
Sometimes parents cannot agree about the school at which their child is to be first enrolled. The department’s primary focus is to ensure that all children of compulsory school age are either enrolled in and attending school or are registered for and receiving homeschooling. In circumstances where parents are in disagreement about a child’s first school, the child is to be enrolled in the school chosen by the parent with whom the child is living. This may be subject to change as a result of a subsequent court order specifying a different school.
There are times when a parent will attempt to enrol a child in circumstances where the child is already enrolled in another school, either in New South Wales or interstate. This situation can occur when families break up and one parent moves to a new location. Sometimes the other parent does not agree that the enrolment should take place. This can be in circumstances where the child may have been living with the non-enrolling parent.
If principals are unaware of any dispute between parents regarding enrolment, they can accept the enrolment in the school chosen by the parent with whom the child is then living and according to relevant policy requirements such as location within the school’s catchment area.
Any action taken by principals in relation to a dispute regarding enrolment should always be in the best educational and welfare interests of the child.
If it is known that a dispute exists between the parents, and there are no Family Court orders in place which specify the school the child is to attend, the primary consideration should be the welfare and educational interests of the child. As such, if a child has previously been enrolled at only one school, or has been enrolled at a number of schools and the principal of the most recent school considers the child to be settled in that environment and continuation at that school is in the child’s best educational interest, the application to enrol at a different school should only proceed with either the consent of both parents or in accordance with a court order specifying the school.
If a parent seeks to enrol a child or children at a school following a relocation which is a significant distance from the previous school, or following relocation due to safety concerns for the children, the enrolment can be accepted if the school is of the view that it is in the best educational interests of the child or children to do so. In these cases, principals should have regard to paragraphs 10.2 and 10.7 in the chapter Advising parents and other people that children are enrolled in a particular school.
If a parent seeks to enrol a student in a school and the best educational interests of the child are not apparent, perhaps due to the child only recently enrolling at a school prior to the parents separating, a short term attendance can be accepted for a period of time sufficient to allow the parents to seek an urgent court order determining the school the child is to attend. The length of the short term attendance should accord with the time taken for the court to deal with the matter. Principals should confirm that a legal action has been commenced by one or both of the parents, or that litigation is pending, and request that they are regularly informed about the progress of the litigation.
If there are Family Court orders in place which nominate the school the child is to attend, principals should only allow enrolment at a different school when both parents give consent or when there is a new court order specifying the school.
If the application to enrol involves a young person of high school age the principal should consider the views of the young person. A separate interview with the young person may be appropriate. Matters for consideration are whether the young person appears to be under duress or pressure from a parent when expressing a preference for one school over another, or whether the young person appears to make a reasonable and informed decision in their own best interest. If the latter, then significant weight should be given to the young person’s views, as would occur if being determined by the Family Court.
When the Minister for Communities and Justice has responsibility for educational issues, it is expected that an officer from the Department of Communities and Justice, and/or the carer or person representing the designated agency providing care be in attendance at the time of enrolment. It is the responsibility of the Department of Communities and Justice or the designated agency to inform the principal of the aspects of any relevant Children’s Court order as well as the name, address and contact details of persons authorised as signatory for medical treatment, school excursions etc.
Case study 1
A mother arrives at a school and applies to enrol her child in kindergarten for the first time. She indicates she has recently separated from her husband. There are no court orders in place. She is unaware of her husband’s view on enrolment at the school but believes there is a good chance he will object. The child has not previously been enrolled in a school.
In this situation, the enrolment should proceed and the parent advised that in the best interests of her child, she should obtain agreement from her husband about child-related issues or alternatively seek court orders.
Case study 2
A father applies to enrol his children at school X. He advises that he has separated from his partner and the children are living with him at the moment. He advises the children are currently enrolled in school Y. When school Y is contacted, the principal of school X is advised the father has not returned the children in accordance with the mother’s expectations and the mother does not agree to the enrolment at X taking place. There are no court orders in place. The principal of school Y considers the children settled and performing well at school.
School X should not accept the enrolment, and both parents should be advised that any changes to the school enrolment will only take place with the consent of both parents or in accordance with an order from the court specifying the school the children should attend.
Case study 3
A father applies to enrol his child in school. He indicates that there is an order that the child lives with her mother as well as other orders relating to the day to daycare of the child. The child is of teenage years and has expressed a desire to live with the father despite the court orders that she live with her mother. The mother objects to the child being with the father or enrolling in the school. The child is currently enrolled in another school.
The principal should seek the views of the young person and if her decision to live with the father does not appear to be made under duress the father should be advised that enrolment application can proceed. In the absence of any agreement able to be reached with the mother, the mother should be advised to seek amended court orders as quickly as possible. If the daughter applies to enrol herself at the school the principal should make the decision based on an assessment of the maturity of the young person.
Case study 4
A mother applies to enrol her child in school. There is a court order indicating that the child live with her and she lives in the school’s intake area. She advises the school that the child was previously enrolled at a non-government school but this has now ended. The father of the child contacts the school and advises that the child is not to be enrolled because he does not consent to the enrolment at the DoE school. He asserts that the child is still enrolled at the non-government school and is adamant that the enrolment should not proceed.
Confirm with both parents that there are no orders made by the court regarding the type of school that the child should attend. If there are no such orders, the enrolment can proceed and the parents advised that they should consider whether it will be necessary for either of them to seek an order from the court in relation to which school the child should be enrolled.
Case Study 5
Scenario A: A child is enrolled by his father in Kindergarten. Some weeks later the mother arrives at the school during the school day with her new partner seeking to take the child with her and enrol the child at a different school. The mother provides court orders stating she has parental responsibility for long term care, welfare and development of the child, and the father is to spend time with the child at specified times and both parents have care responsibilities when the child is with them. The principal contacts the father who indicates the child is not to be released to the mother and that he will come immediately to the school. He confirms the orders presented by the mother are the current orders relating to their relationship. The mother insists on taking the child.
Scenario B: The child tells the principal that though he loves his mother, he is afraid of his stepfather because he had hurt both him and his mother on previous occasions.
Scenario A: As the mother has orders indicating that she is the parent with whom the child is to live the principal should indicate to the mother that the child will be released into her care at the end of the school day. The mother will then be able to enrol the child at a school of her choosing. Both parties should be asked to resolve their differences away from the school site and if necessary, seek new court orders.
Scenario B: In view of the information provided by the child, the principal should not allow the mother to remove the child from the school even though the court orders are in her favour. The principal will also need to lodge a mandatory report to Communities and Justice based on the information provided by the child in accordance with relevant child protection procedures.
Case Study 6
A child is enrolled at School X and is currently in Year 3. The child has attended School X since the beginning of Kindergarten and is well settled. There are no court orders but the child has lived for some years with the father and has regular contact with the mother on alternative weekends and during school holidays. At the end of term 3 the father applies to enrol the child at School Y, School Y is 5 km away from School X. The mother has rung both schools and said she doesn’t agree with the change of schools.
In this situation, a dispute exists between the parents and there are no court orders specifying which school the child is to attend. The primary consideration should be the welfare and educational interests of the child. Matters that should be considered include that the child has only attended the one school, they are well settled and a move to a new school during a year might unsettle them, the close location of the two schools and the reason for the proposed move. Unless there is consent of both parents or a court order is provided specifying the school the child should attend the application to enrol at School Y should not be accepted.
Case Study 7
Two children are enrolled at School X. One is in Year 1 and the other is in Year 3. The children have each attended School X since the beginning of Kindergarten. There are no court orders but the parents were separated before the eldest child commenced school. The children have lived with the mother since separation and currently have irregular contact with the father. The eldest child has reported to their classroom teacher that they are worried that their father will come to the school and take them from their mother and that she is afraid of him. The mother attends School X with a copy of a recently made AVO against the father. She advises the Principal of School X that she intends to move 300kms away to live with her parents in the country, as she and the children feel safer with them, and enrol the children at School Y. The Principal of School Y has rung the Principal of School X to say he has received an application to enrol both children in his school. The father has rung School X and said that he does not agree to his children moving to the country away from him and his family.
In this situation, a dispute exists between the parents and there are no court orders specifying which school the children are to attend, the primary consideration should be the welfare and educational interests of the children. Despite the distance and disruption, it may cause, given the allegations of domestic violence by both the mother and the child, and the fact that an AVO has been granted by the local court, it may be considered in the best welfare and educational interests of both children to proceed with the enrolment at School Y.
9. Name used for enrolment and name changing
A person over the age of 18 can be known by any name they wish and the exclusive use of the new name is all that is required to effect the change provided it is not for a fraudulent or improper purpose. Subject to certain requirements of the Registrar of Births, Deaths and Marriages, people over the age of 18 can also change the name that is recorded on their birth certificate and have a new certificate issued in their changed name.
Children and young people under the age of 18 cannot, of their own volition, change their name either by common usage or by amendment of their birth certificate. Generally, both parents and the child need to consent to any proposed change of name. If parents have separated, one parent cannot change a child’s name even if the child resides with that parent. If a child’s parents cannot agree, ultimately the Family Court may have to settle the dispute.
Where a child is adopted, information about the child is recorded by the Registrar of Births, Deaths and Marriages. Birth certificates can be issued for adopted children which will indicate their name following the adoption.
Generally, students under the age of 18 must be enrolled in and be known by the name which appears on their birth certificate, except that:
- if a birth certificate cannot be produced because a child was born outside Australia, enrolment should be in the name indicated in a passport, immigration papers, Medicare card or other documentation which indicates the name the child was first known by after birth
- if the enrolling parent says that a birth certificate, passport, immigration papers or other documentation cannot be produced, enrolment should be in the name indicated in a statutory declaration as to the name the child was first known by after birth
- if the enrolling parent says that a birth certificate is not currently available, but will be available in the future, the child can be enrolled under the name that the enrolling parent says will appear on the birth certificate on the understanding that the parent will provide a copy of the certificate. The parent should be advised that if a birth certificate is subsequently provided (by either parent) indicating a different name to that advised to the school, the school’s records will be changed accordingly.
The name by which a child is known is regarded as a major long term issue to be determined, in absence of a court order, by both parents. Enrolment can occur in an alternate name or changes can be made to existing records to indicate a different name to that appearing on the birth certificate or other relevant enrolment documentation only if one of the following conditions apply:
- a signed consent from both parents indicating approval to use the new name is provided
- a court order is provided authorising the use of the new name
- a signed consent from one parent and proof that the other parent is deceased. This can take the form of a statutory declaration by the enrolling parent or a death certificate
- a birth certificate has been issued in the new name
- proof of adoption authorising the new name is provided
- Communities and Justice or a designated agency is responsible for the care of the child and the Department of Communities and Justice indicates in writing that the use of a new name for the child is appropriate or
- evidence is provided that the parent and/or child are subject to witness protection or some other similar scheme designed to ensure their safety and the use of the new name for the child is necessary to maintain the safety and well-being of the parent and/or child.
If a change of name for a student is made following one of the above conditions being satisfied and a parent objects to the change, or a parent or other person requests a further change, the parent or other person should be advised that any further change will only be made if one of the conditions in paragraph 9.5 is met.
A child’s first name, like his or her surname, is regarded as a major long term issue. It is not unusual however for children to use alternate first names or nicknames at school. It is neither unlawful nor unusual for school staff to refer to children by those alternate first names even though all official documentation at the school and issued by the school may be in the name recorded on the birth certificate. Care should be taken to ensure the child consents to the use of a nickname and that it is not likely to be offensive.
Whether or not an alternate first name is used by school staff when addressing individual students is a decision to be made by the staff based on the circumstances of specific cases. Of paramount importance is the welfare of the child and the practicalities associated with maintaining a safe, secure and happy school environment for both staff and students. Factors that would be taken into account when determining if staff should refer to students by an alternate first name include:
- the views of the student
- the views of both parents
- the name used by fellow students when interacting with the child concerned
- the potential problems arising from using a name to which the child may not or will not respond
- what is in the best educational interests of the child.
If a parent is unhappy with issues concerning the name used for his or her children at school he or she should be advised that, in the absence of any agreement with the other parent, they should obtain a court order which deals directly with the issue.
Schools may receive requests from Centrelink and other government agencies to confirm the enrolment details of specific students. Sometimes the name the student is enrolled in at the school will be different to that on Centrelink records. Provided there is no doubt regarding the identity of the student, principals should, where applicable, indicate that the student is enrolled at the school in a different name.
Case study 8
The name appearing on the birth certificate of an enrolling student, aged 5, is Edward James Williams.
Depending on all of the circumstances, school staff may refer to that student by one or more of the following names – Edward, Ed, Eddie, Ted, or Teddy (but not, for example, “Big Ted”). In some circumstances, the child and family may alternatively wish the child to be known as James or Jim. All official documentation issued by the school would be in either the full birth certificate name of Edward James Williams or alternatively Edward Williams.
Case study 9
A 12-year-old student who is enrolling at high school has been enrolled at a primary school in another state under a different surname to that on the birth certificate. The mother wishes to enrol the child using the same name used at the primary school.
The principal could exercise their discretion and allow the student to enrol in the name they have been using after explaining some of the pitfalls the student may later encounter when the birth certificate name is required and school records do not match the birth certificate name, such as obtaining a driver’s licence or enrolling at a tertiary institution, and the parent maintains their request for use of the non-birth certificate name.
10. Advising parents and other people that children are enrolled in a particular school
Principals may be asked to confirm that a child is enrolled in a particular school. The requests may also ask for details of private addresses and or contact telephone numbers. The requests can come from a number of sources including parents, other family members, solicitors, private inquiry agents, police officers, Communities and Justice or through a court order.
Unless a school is aware that there are court orders that deny a particular parent parental responsibility for the child, generally confirmation can be provided to a parent that his or her child is enrolled in a particular school. Under no circumstances should the address or contact details of a child or a parent be given to the other parent without the first-mentioned parent’s consent. Details of any emergency contacts should also be withheld unless satisfied those persons consent to their details being provided.
Similarly, unless there are court orders that deny a particular parent parental responsibility for the child, confirmation of enrolment can also be provided to a lawyer or private inquiry agent acting on behalf of that parent. A signed authority from the parent authorising the release of information to the lawyer or private inquiry agent must be provided before confirmation is given. Address, contact details and emergency contact information must not be provided without appropriate consent.
If police are conducting criminal investigations and the information sought is essential for those investigations, the information can be provided. Requests for information should be provided to officers from Communities and Justice in response to a request for information under Part 16A of the Children and Young Persons (Care and Protection) Act 1998 or where the release of such information is otherwise authorised, such as where the Minister for Communities and Justice has parental responsibility for the child. Relevant details must also be provided to agencies such as Centrelink upon receipt of any “Notice to Produce Information” or similar directive.
If the school is served with a location order issued by the court, the details sought in the order must be provided according to the terms of the order.
Where a person asserts he or she is the parent of a child at the school, but is not known to school staff, the principal is entitled to ask the person for proof of identification (such as a driver’s licence) before releasing any information confirming the enrolment of the student. Special care needs to be applied in relation to telephone requests for information.
If principals are aware that a parent has obtained an apprehended violence order (AVO) against the other parent, the release of any information confirming the enrolment of the children at a school should have regard to the terms of the order and the views of the parent in whose favour the order is made. If the child is specifically named as a protected person in the AVO, confirmation of enrolment must not be given.
While confirmation of enrolment can generally be provided to parents, there may be circumstances where it will not be in the child’s best interests for such information to be released. There may also be situations where older, more mature students object to such confirmation being provided to a parent. In these cases, principals should have regard to their obligations under the Privacy and Personal Information Protection Act 1998 and the department’s Privacy Code of Practice prior to making a final decision about whether the confirmation of enrolment should be released. In particular, they must consider the best interests of the child.
Sometimes grandparents, siblings or other close relatives may contact schools asking for information about children who are enrolled. In the absence of consent from the residential parent or parents, these requests should be politely declined.
If any doubt arises concerning the release of address or contact details, principals should contact the department’s Information Access Unit on 7814 3525 for further advice.
Case study 10
A father telephones a city school wanting to know if his children are enrolled. The school records indicate that the children have recently transferred to another school in the country. Court orders are in place which state the children are to live with the mother and that she has responsibility for the day to day care and control of the children. There is an order stating the children will spend time with the father.
Unless the school is satisfied as to the identity of the caller, no information of any kind should be provided. If his identity is established, the father can be advised of the school to which the children have transferred. Neither school should provide any address or other contact details.
Case study 11
A father comes to the school and wants to know if his child is enrolled at the school. Staff are aware that the parents have separated and that the mother has an AVO against the father. The mother has been subject to domestic violence in the past and the AVO has provisions which direct the father not to contact, molest or otherwise interfere with the mother. There are no specific orders in relation to the child.
The father can be advised that the child is enrolled at the school. Contact details must not be provided.
Case study 12
A father telephones a school to find out if his child is enrolled. The mother has recently enrolled the child after separating from the father. There is a history of domestic violence and there is an AVO in place concerning both the mother and the child. The AVO indicates the father is not to have any contact with the mother or child except through a third party and is not to come within 50 metres of either the mother or child. The mother has indicated she fears for her and the child’s safety if the father finds out where they are.
In view of the history of violence between the parents, the nature of the court orders, the fact the child is specifically named in the order and the expressed fears of the mother, no confirmation of the enrolment should be provided without the express consent of the mother.
11. Parents picking up children after school or spending time with children during school hours
(Refer to paragraph 6.4 regarding the meaning of “contact”.)
Spending time during school hours
As a general proposition, school is not the appropriate place for a parent to spend time under a court order with his or her child. Generally, such contact should occur outside school hours and away from school premises.
While schools are not normally places for parents to spend time with their children, contact can be permitted to occur subject to the following:
- the child does not object to seeing the parent
- there are no court orders provided to the school which specifically prevent the contact from occurring
- the contact is to take place at a time which does not unduly interfere with the normal operation of the school
- there are no genuine concerns for the safety or well-being of the child, other students and or staff.
Regardless of the other inquiries made, if the child does not want to see the parent, contact should not be allowed to occur at the school premises.
Occasionally a separated parent who has limited contact with his or her child will seek to have telephone contact, leave birthday cards, presents, letters or other material with the school so that it can be given to the child. As a general proposition, the school ought not to be used for such purposes. (Refer also to paragraph 14.1 regarding contact by other persons).
- However, depending on the principal’s knowledge of the relationships and specific circumstances, including any court orders that may exist, the principal can use his or her discretion to, for example: deliver the material to the other parent at the end of the school day
- if the child is considered to be mature enough to make his or her own decision, ascertain the child’s views on accepting the material and if appropriate, provide the material to the child
- provide the material to the child and ask that he or she take it home and give it to the other parent.
Parents picking up children from school
In the absence of any court order specifically preventing a parent attending at the school, or an order requiring supervision when a parent is spending time with a child, a party with parental responsibility has the capacity to pick up children at the end of the school day, or during school hours for pre-arranged medical appointments, or in exceptional circumstances, see 11.7 below.
Parents should not be allowed to remove a child from school before the end of the school day unless the child has a pre-arranged medical appointment or there are exceptional circumstances, such as a grandparent being taken to hospital unexpectedly.
If a parent refuses to leave the school site or becomes agitated or aggressive in any way, he or she should be warned that failure to leave the premises may lead to police being called. If the parent continues to remain despite the warning, the police should be contacted.
Issues around picking up children after school can lead to confrontations between the parents at the school in front of other parents, students and staff. It is not appropriate for school staff to try to resolve these disputes. Parents should be advised of the need to resolve any issues about picking up the child prior to arriving at the school. If both parents arrive at the school and a confrontation occurs, or, if the principal has reason to believe that a confrontation will occur at the school, the parents should be advised about possible police involvement and the possibility of an Inclosed Lands restriction being issued
One parent may be spending time with his or her child over the weekend or for a number of days during the week. This may include a provision that the time is to commence from the conclusion of the school day. Sometimes the parent who is to spend time with the child will arrange for another person, such as a new partner or grandparent to pick up the child on their behalf and the other parent objects to the arrangements made. Again, it is not appropriate for school staff to try to resolve these disputes. Unless a court order specifically prevents a particular person from contact with the child, principals only need to ensure that the person picking up the child is either a person with parental responsibility for the child, or has made an arrangement for a nominated party to pick up the children.
Case study 13
A father asks to see his child at school. The father has had limited contact with the school during the child’s enrolment. The school is not aware the family have separated or of any court orders in place
Provided the child does not object to seeing the father, the contact occurs at a time that does not unduly disrupt the school routine and/or is in accordance with any relevant school policy on parental contact during the school day, the father can see the child on a “one-off” basis. Ongoing contact with the child at school should be discouraged. If the child objects or the principal believes the safety or well-being of the child is at risk, the father should not be allowed to see the child. The contact should be arranged to minimise any potential embarrassment for the child.
Case study 14
The parents of a child have separated and court orders are in place allowing the father to spend time with the child on weekends and during school holidays. The father comes to the school and asks to take the child because the child has to attend a medical examination. The principal is aware that some degree of animosity has existed between the parents though there is no suggestion the child has any problems being in her father’s company.
The principal should contact the doctor’s office to verify the medical appointment. If there is an appointment the school should allow the father to take the child to the appointment and if there is sufficient time, to return the child to school. If the father is unable to return the child to school the principal should contact the mother to inform her of the situation.
Case study 15
A mother contacts the school and tells the principal she objects to her ex-husband’s current partner picking up their child after school. The father usually spends time with the child every weekend commencing 3pm Friday in accordance with a court order and it has been the usual practice for the child to be picked up by the father’s partner as the father is at work. The mother states that the parenting order says the father is to pick up the child and that, to stop the partner from picking up the child, she intends to come to the school before the end of the school day to pick up the child. There is no suggestion the child does not want to go with the father’s partner.
The principal should tell the mother that the child will not be released from school before the end of the school day. There is nothing to prevent the father from nominating his partner or any other person as being able to collect the child on his behalf.
Case study 16
Both parents arrive at school on a Friday afternoon insisting that their child leave with them, each parent claiming it is their weekend to spend time with the child. Each parent has a copy of the same Family Court Orders that are current, but several years old. Both parents insist on taking the child.
The school should firstly advise the parents that it is not the role of the school to interpret Family Court orders, nor resolve family law disputes. The parents should be offered an area to privately discuss the issue and reach a resolution involving one of them taking the child. If they refuse to discuss the issue calmly on the school site they should both be asked to leave the school and given a short time to resolve the question of which one will take the child from school. The parents should be warned that if the issue is not resolved within a reasonable time either the Police or Communities and Justice will be called in the interests of the child’s welfare.
Case study 17
Family Court orders provide for the child to live with the father and for the mother to pick up her son from the high school at 3 pm on a Wednesday, which is sports afternoon at the school. The orders have been in place for a year, however, for the first time, the students are allowed to either leave the sports complex by bus to return to school or leave the complex 20 minutes early, that is at 2.40pm, with parental permission. The young person has indicated to the school that he is happy to be picked up from the complex by his mother, however the father claims that as the child lives with him he must give permission and he refuses to do so, insisting that the child return to school on the bus and the mother pick up the child at 3 pm in accordance with the orders.
The Family Court orders should be viewed from the perspective of the young person. Allowing the young person to leave the sports complex with his mother at 2.40pm would not impact negatively on the relationship between the child and his father while at the same time would be a normal occurrence between a mother and son. It is unlikely the Family Court would consider the school to have aided the mother to breach the Family Court Orders given there would be no negative impact on the father’s time with his son.
12. Parental access to school documentation, provision of permission notes and approval for counselling
Often parents who have separated will both want to play an active part in their child’s education. Sometimes a parent will not agree that the other parent should receive information about their children’s education.
Unless there is a court order saying otherwise, each parent has equal obligations, duties and responsibilities in respect of their children. To meet those obligations, duties and responsibilities, it is reasonable that each parent has access to relevant information from a school concerning their children’s education.
Where the parents have separated and the children live with one parent, whether due to a court order or not, school documentation should be sent to the parent that the child is living with.
If the non-resident parent asks for school documentation, copies of the material should be provided unless there are orders that have taken parental responsibility for the child away from that parent, see 12.5 and 12.6 below. Principals should make sure that any material sent to non-residential parents does not include any address or other contact details of the other parent. Refer also to paragraph 10.2 regarding specific requirements around enrolment documentation.
If a court order is made that denies parental responsibility for the long term care of a child, or gives sole responsibility for educational matters to one parent, the other parent is not entitled to any documentation or information about their child from the school, subject to 12.6 below.
In cases where the court has removed parental responsibility from one of the parents but the court orders are clear that the court wishes the parent who has had parental responsibility removed still receive information from the school about the child’s progress, the school can provide the information to that parent as outlined in the court order.
Documents of a minor and day to day nature, such as notices that the school canteen will be closed or that specific minor school activities are cancelled, need not be sent to non-residential parents, however, this is at the discretion of the principal.
The material provided to non-residential parents should include copies of documentation that the principal considers significant and which is ordinarily provided to the resident parent. This includes school reports, test results, school welfare and discipline documentation, school newsletters, notices about major excursions and major school activities such as school plays, presentation nights, parent-teacher nights and arrangements for school photographs. Principals must ensure that any documentation given to non-residential parents is provided in sufficient time to allow the non-residential parent to attend school activities, order school photographs and the like.
Principals may ask non-residential parents to contribute to the costs of providing the school documentation, however, any contribution is purely voluntary. Provision of the material must not be denied because a contribution has not been made.
In providing information to non-residential parents, principals must also be mindful of their obligations under the Privacy and Personal Information Protection Act 1998 and the department’s Privacy Code of Practice. Providing school reports to the non-residential parent should always be in the best interests of the child. Providing reports to both parents will, in most cases, be in the child’s best interests, however there may be times when it is best not to provide school material to the non-residential parent.
12.11Requests for a student to see a school counsellor can be made by either the parent the child lives with or the parent the child spends time with.
Permission notes for participation in school activities, such as excursions, can cause disputes between parents. Many excursions and other off-site school activities are organised well in advance. Generally, permission notes should be obtained from the parent the school usually contacts regarding day to day issues. Relevant material should also be provided to the other parent where that parent has asked to be provided with school documentation though it is not necessary to have that parent’s consent.
If both parents play an active role in day to day issues involving the student, the relevant material should be provided to both parents. Signed consent forms can then be obtained from one or both parents.
If parents disagree about a student participating in an excursion or other school activity, they should be asked to resolve the dispute away from the school. If the parents cannot agree, the principal must make a decision based on the specific circumstances, in particular, the educational value from the activity and the interests of the student generally. Principals should also consider the views of the student.
Case study 18
A father asks that copies of his child’s school reports be given to him. He is separated from his wife and court orders state that there is a residence order and a specific issues order which gives his wife sole responsibility for the day to daycare of the child. There is an order that the child spends time the father. The mother has told the school that she does not want her husband to be given the child’s school reports.
Unless there are specific circumstances which make it inappropriate, the father should be given copies of the material. The mother objecting to him being given the material is not a reason to deny his request.
Case study 19
A father, who is a non-residential parent, asks for copies of his child’s school reports. There are no court orders in place. The mother objects to the father being provided with a copy. The principal is aware that in the past, the father has acted violently towards the child when he has received reports showing the child was not performing satisfactorily. The child is 14 and has said she is fearful of what might happen if her father is given a copy of her latest report.
In view of the history of violence, and the views of both the mother and the student, it is reasonable to decide not to give the reports to the father as it is not in the best interests of the child. The principal should tell the father that a copy of the reports will not be provided.
Case study 20
A mother asks the school for copies of her child’s school reports. The student is 14 and until recently lived with her mother but now lives with the father. The principal knows the child has left the mother over a domestic dispute. The mother has always played an active role in the child’s education. The student tells the principal the she is not happy with the mother, she does not intend to return to her and she does not want the mother to be given copies of the reports. The student is mature for her age and the principal feels that she is capable of making a decision in her own best interests.
The mother’s involvement in the child’s education means it may be in the child’s best interests to allow that involvement to continue despite the child’s objections. If the principal determines it is in the best interests of the child to give the information to the mother, prior to providing the information, the student should be given an opportunity to ask for a review of the decision according to the department’s Privacy Code of Practice. This review is undertaken by the principal. If unhappy with the final decision of the principal, the student has a further right of review to the Director Educational Leadership. Alternatively, if the principal decides not to release the information to the mother because the student’s position seems reasonable then the mother can also seek a review of the decision according to the Code.
Case study 21
A child is having educational and behavioural difficulties at school. The principal believes it is in the best educational interests of the child for him to see the school counsellor. The biological parents have separated and the mother, who is the residential parent, is in a de-facto relationship. The biological father believes the child’s problems arise from his ex-wife’s current relationship. The mother does not want the child to see the counsellor.
The type of counselling that is envisaged can be characterised as a long term welfare issue for the child and as such is generally the responsibility of both parents. Despite the objections of the child’s mother however, it is appropriate for the counsellor to have an initial interview with the child to determine if any on-going support plan is required. If the child’s safety and wellbeing is significantly at risk it would be important for the school counsellor to approach the child regardless of any parental objection.
Case study 22
The school is organising a three day trip to Canberra in term 3. The parents are separated and though they both regularly deal with the school and teachers, the separation has been acrimonious and disputes about school issues often arise. In term 1, the father tells the school he objects to his child attending the excursion as the proposed dates conflict with his time with the child as set out in a court order. He says that he does not consent to the child going on the excursion if the dates remain unchanged. The dates cannot be changed and the mother wants the child to go.
Resolving the issue is the responsibility of the parents and they should be encouraged to come to an agreement. If this does not occur, the principal can make a decision based on the educational value of the trip and the student’s interests generally. If the principal believes the student should attend, the consent from the mother is sufficient. The principal can also take into account the views of the student in coming to a decision.
13. Parental involvement in school activities
Where court orders have not been made, both parents can attend school organised activities. Each parent has parental responsibilities and is able to visit the school and speak to the principal and teachers about their child’s education and participate in all activities which normally involve parents.
It is only when a parent or parents cause a disturbance, upset the school routine or refuse a reasonable request to leave that a principal should act to exclude that parent, or both parents, from the school.
Where court orders have been made, parents should not be excluded from school activities unless a specific order makes their attendance inappropriate. It should be noted that parenting orders are child-focused and are for the benefit of the child. Parenting orders are framed by the court to help the child have as normal a relationship with both parents as is possible.
When deciding whether both parents should participate at the same time in the school activity the primary concern is preventing disputes which could affect the operation of the school and jeopardise the safety and well-being of persons on the site.
Principals should aim for a compromise position so both parents can participate in school activities. Principals should not spend long periods of time trying to reach a compromise and they should not act as conciliators in family disputes. Principals should use their judgment based on their knowledge of the previous conduct of the parents, the attitudes of the children and the educational importance of the activity when deciding what compromise is appropriate.
Parents often volunteer for school activities, such as canteen duties, attending excursions or sporting activities. These voluntary activities often mean the parents will come into contact with their children and in many cases this contact will be outside times of contact specified in court orders. As already outlined, parenting orders aim to ensure the child has as normal a relationship with both parents as is possible. Orders that a child spend time with a parent do not set a maximum amount of time the child may see the parent unless the orders specifically state that there is to be no contact at other times, for example, “child shall spend time with father every second weekend and at no other time”.
If other court orders (for example an AVO) are in place that make the contact inappropriate or raise genuine concerns for the safety and well-being of the child, other students and/or staff if contact occurs, (or if the parent’s participation will unduly complicate arrangements for the activity and unreasonably divert the resources of the school) then the parent should not be allowed to participate in the activity.
Generally, parents should be allowed to participate in school activities on the understanding they may have some contact with their children that is incidental to the primary purpose for the parent being on the school site. For example, a parent may be sitting in an audience at a school concert or may see their child in the playground while working in the school canteen, this should not be considered contact within the meaning of family court orders, rather this should be seen as incidental contact.
A parent objecting to the other parent participating in a school activity is not sufficient reason to deny participation. Unless there is a specific court order preventing participation, any decision which does not allow participation must be due to genuine concerns for the safety, well-being, or the best educational interests of the child, other students and/or staff.
Case study 23
A parent requests permission from the school to attend parent/teacher interviews. There are no court orders in place and the other parent, with whom the child lives, is aware of the approach and objects to the request.
The parent should be allowed to attend the interview. If the principal is concerned that both parents being at the school at the same time might lead to a disturbance, they should allow both to attend the interviews at different times. If a compromise is not possible, both parents should be allowed to attend the interviews and if there is a disturbance, either or both parents can be asked to leave the premises.
Case study 24
Separated parents attend a school concert night. There is a residence order that the child lives with one parent and the other parent spends time with the child. The residential parent has told the principal he/she objects to the other parent attending the concert. During the course of the evening, they come into contact and a disturbance occurs. Upon investigation, it is determined that the residential parent has caused the disturbance.
The residential parent should be asked to leave the school site if they do not give an undertaking to behave appropriately. If the disturbance is serious enough, the principal can ask the parent to leave immediately. If the parent refuses to leave when requested there can be further action by the principal applying the Inclosed Lands guidelines and possible police involvement.
Case study 25
A mother volunteers for canteen duties at the school. She has a child at the school who lives with the father in line with a residence order made by the court. The mother spends time with the child on weekends in line with a parenting order. There is a real possibility she and the child will come into contact with each other at the school. The father is aware of the request by the mother and objects. There are no other court orders in place that make the arrangement inappropriate and the father cannot offer any real safety concerns.
The mother should be allowed to volunteer for canteen duties on the understanding that any contact she has with the child will be limited to contact that is incidental to the canteen duties. Any private one-on-one contact between the child and the mother should not occur.
Case study 26
A father asks to volunteer in reading classes at the school. It is inevitable that the father will come into contact with his child who attends the classes. It is not possible to structure the reading classes to avoid the contact. Court orders are in place which give the child contact with his father on a limited basis and under supervision at weekends. There has been a history of domestic violence against the mother and the child. The father has acted erratically at the school in the past but has not caused any problems for some time. The mother objects to the father volunteering in the reading classes due to safety concerns for the child.
Considering the history the father’s behaviour and the terms of the contact order requiring supervision, the principal is entitled to deny the father the opportunity to participate in the reading classes. Alternatively, the father could be allowed to volunteer on a trial basis. If it was a large school and the reading classes could be organised so that contact between the father and the child would not occur, the father could also be allowed to participate on the condition he would assist in another class and not be involved with his child.
Case study 27
A father volunteers to help at the school swimming carnival as a timekeeper. He tells the principal that he wants to both help the school and to see his children compete in the carnival. There are court orders which allows his children to spend time with him every second weekend and alternate school holidays. The carnival is on a weekday and there is a possibility contact between the father and the children may occur. The mother will be attending the carnival as well and she tells the principal that she objects to the father being there. She says that the father’s presence at the carnival may have a negative impact on the children but cannot be specific as to why. The father is known to the school and has not caused any problems previously.
The father should be allowed to attend the carnival. Both parents should be counselled on the need to conduct themselves appropriately at all times and if need be can be reminded that the parenting orders are for the benefit of the children and aim to ensure that the children have as normal a relationship with both parents as possible. A parent attending a swimming carnival and volunteering to assist the school, as well as being a spectator, is a normal activity between a parent and child.
Case study 28
A mother volunteers for canteen duties at her child’s school. This brings her into contact with the child. There are court orders making the father solely responsible for the long term welfare and care of the child. The child lives with the father and the mother has defined contact with a provision that the mother may have contact outside the specified times. The father advises the school that the ongoing contact between the mother and the child at the school is causing stress to the child. He asks the principal to deny the mother the chance to volunteer in the canteen.
Depending on the age of the child, the principal may need to interview the child to establish his or her views on the matter. If the principal is satisfied that the child is not stressed as alleged, the mother should be allowed to continue as a volunteer. If however, the principal feels the child is under stress because of contact with the mother then the mother should be allowed to undertake the duties on the condition she not approach, speak to or serve the child. The child should also be advised of the conditions and be encouraged to approach other persons in the canteen.
Case study 29
Parents have separated and the father has re-married. The father spends time with his child from the first marriage on weekends. His child and his step-son from his current marriage both attend the same school and are in the same class. He often attends the school to pick up his step-son. He often sees his son at the school and they may also briefly speak to each when the father is picking up his step-son. The mother objects to this and asks the principal to direct the father not to come to the school as it is in breach of the contact order.
The father has a legitimate reason to be at the school (that is to pick up his step-son) and unless there is inappropriate behaviour by the father, he is entitled to continue to do this. The incidental contact between father and son, while the father is picking up his step-son, does not matter. The principal may, however, counsel the father about not deliberately seeking out his son or engage in any extended contact with his son other than that which is reasonably incidental to him picking up his step-son.
14. Dealing with persons other than parents
The Act recognises the right of children to maintain on-going relationships with people significant to their care, welfare and development. Sometimes this results in conflicts at school between parents and other family members. Grandparents, for example, may wish to speak with their grandchild or ask staff to deliver birthday cards and gifts to them at school. Parents may object to this. (Refer also to paragraph 11.4 regarding contact by parents)
Principals must exercise caution in these situations. Any official relationship is between the school and the parents. Other persons such as grandparents may wish to have a close involvement with children attending school, however, they do not have a formal relationship with the school and cannot interact with the children while they are at school. Contact between a child and other relatives should take place outside of school hours and away from school premises. School should be a safe haven for children who are facing difficult family circumstances.
Principals should exercise discretion and any action taken will depend on the relationship between the parties. Principals should consider strategies similar to those outlined in paragraph 11.5.
Similarly, principals may be asked by grandparents and other relatives for copies of school photographs or other material relating to children in the school. These requests should be politely denied and the person told that such material must be obtained through the parents.
Step-parents often are closely involved in school matters involving their step-children. This involvement must always be with the consent (either expressed or implied) of the step-parent’s spouse or partner, who is a parent of the child. The parent is able to withdraw that consent at any time. If a step-parent has formally adopted the step-child however, (in which case there will be an adoption order), the adoptive step-parent has the same rights and status as the parent.
In some cases, the Minister for Communities and Justice may have parental responsibility over a child and therefore Communities and Justice or another designated agency will have a supervisory role. Authorised carers and their supervising designated agencies can ask for, and be provided with, information about student progress at any time. Requests by a person without care or custody of the child must not be met without the prior approval of the relevant government agency.
Centrelink is authorised by Commonwealth legislation to obtain information about a range of social security issues. Requests from Centrelink for information about parents and/or children should, therefore, be complied with.
Provision of information in these circumstances will not be a breach of any privacy legislation.
Case study 30
Parents are divorced and the mother has re-married. The children of the marriage live with the father and the mother spends time with the children every weekend commencing Friday 3 pm. The mother’s current spouse has been picking up the children on Fridays at the school with the mother’s express written consent. The father objects to the step-father picking up the children and insists the school not release the children into the care of the step-father. Instead, he insists that the principal arrange for the children to be placed on the school bus so that they can return to the father’s residence.
The principal confirms with staff that the children appear happy to go with the step-father. The principal should allow the step-father to continue to pick up the children after school. The principal should tell the parents that should this continue to be an issue they should seek a court order to resolve the dispute.
15. Same-sex relationships
Same-sex relationships often involve one partner being the biological parent to a child or children raised as part of a family in a same-sex household. Increasingly in same-sex relationships, both partners can be the biological parents to children being raised as siblings.
In cases of same-sex relationships, only the parent registered on the birth certificate can enrol a child at school, unless an order of the court has given parental responsibility to another party. All issues about the child’s schooling must be referred to the parent named on the birth certificate.
In some cases both parties are named as parents on a child’s birth certificate when only one is a biological parent. The Family Law Act states that a person named on a birth certificate is presumed to be a parent. When there has been a breakdown in the relationship the school should deal with both parties in accordance with section 13 Parental involvement in school activities.
As is the case with third parties, such as grandparents, anyone other than a parent seeking to be involved in a child’s schooling can only do so with the consent of the child’s parent.
When same-sex relationships break down disputes about the role of the non-biological parent and the biological child of their former partner can arise. Often the non-biological parent has played a significant role in the child’s life over an extended period of time, including involvement in school activities.
If the non-biological parent is a nominated emergency contact person, or has been picking up a child from school with the implied consent of the parent, these arrangements can only continue with the consent of the biological parent.
Many school activities can be open to the public in general, such as presentation nights, and school performances. Third parties should not be prevented from attending these functions unless there are concerns for the wellbeing of a child or children and staff.
In some cases, both parties in a same sex relationship may be registered as parents of a child through a parentage order. Also, a Family Court order may grant parental responsibility to a non-biological parent in a same-sex relationship. When there has been a breakdown in the relationship the school should deal with both parents in accordance with section 13 Parental involvement in school activities.
Case study 31
Children from a same-sex relationship have attended a primary school for three years. The school has been provided with a copy of a parentage order but has not known who is the biological parent. Following a breakdown in the relationship, one of the parents contacts the school to advise they are the biological parent and they do not wish the non-biological parent to receive information about the children from the school. The other parent contacts the school to provide a new address and request that copies of school reports and newsletters be sent to the address. The non-biological parent indicates they are prepared to pay $20 a year to cover the school’s costs.
The school should advise the parent claiming to be the biological parent that the parentage order places on onus on the school to provide relevant material to the other parent to allow them to meet their continuing parental responsibilities.
Surrogacy arrangements involve a woman carrying and delivering a child for another person or persons. Surrogacy arrangements can take a number of forms including family-based arrangements and commercial arrangements.
Each state has responsibility for surrogacy laws, in New South Wales the Surrogacy Act 2010 applies to surrogacy arrangements. The law aims to protect parties from abusive practices that may be involved in commercial surrogacy arrangements and, as such, only recognises altruistic arrangements. Commercial surrogacy arrangements are illegal and are punishable by a fine and prison sentence of up to 2 years.
The law in NSW is complex and contains numerous pre-conditions for surrogacy arrangements to be recognised at law, such as the parties involved being over the age of 25, the arrangement taking place before conception and the parties receiving counselling by authorised specialists in the field.
A child’s birth mother must be registered on the birth certificate regardless of any surrogacy arrangement being in place at the time of the birth. In order to be recognised as a parent or parents at law a party or parties must apply to the Supreme Court of NSW for a parentage order which transfers parentage of the child of a surrogacy arrangement. Once a parentage order is made the court notifies the Registry of Births, Deaths and Marriages and the order is registered.
All procedures and guidelines relating to enrolment, such as the need to produce a birth certificate, apply equally to children of surrogacy arrangements. If a person who is not registered on a birth certificate applies to enrol a child by claiming that a surrogacy arrangement is in place the school should request a copy of the parentage order.
Schools should be satisfied that the documentation provided by a parent addresses the parentage of the child. If a birth certificate shows the name of a parent who is not enrolling the child, or there is doubt surrounding a parentage order, the child can be enrolled under temporary enrolment guidelines and advice sought from Legal Services.
Any final decision regarding responsibility for a child and school enrolment should be made according to the best long term welfare and educational interests of the child.
Case study 32
A parent applies to have a child enrolled in Kindergarten the following year. The parent produces a birth certificate to support the application, however, the certificate does not have the name of either the parent making the application or their partner. The parent explains that they have obtained a parentage order from the Supreme Court which is produced, however, the birth certificate has not yet arrived from the Registry of Births, Deaths and Marriages.
The school should advise the parent that if the birth certificate has not been received by the beginning of the following school year when the child is due to start the school will enrol the child on a temporary basis pending receipt of the birth certificate.
17. Apprehended violence orders and other types of court orders that may regulate the relationship between parents
Apprehended personal violence orders and apprehended domestic violence orders (AVOs) are orders made under the Crimes (Domestic and Personal Violence) Act 1900. Such orders can limit the contact one parent has with another parent and/or children. AVOs carry criminal sanctions if breached.
An AVO includes a number of standard orders, including orders that prohibit a person from intimidating or stalking the protected person (that is the person seeking the order) and intimidating any person who has a domestic relationship with the protected person.
When making an AVO the court will typically make a specific order that a person in a “domestic relationship” with the protected person is also covered by the other terms of the AVO. Children have a “domestic relationship” with the parent they live with, however an AVO is often made by the court knowing the children will have contact with the person who is the subject of the AVO. Children living with a protected person are also sometimes separately named in the order as protected persons (that is as separate applicants for the order).
- There are a variety of orders that can be made by the court when issuing an AVO. Most commonly, the orders made will include:not to assault, molest, harass, threaten or otherwise interfere with the protected person
- not to approach or come within a certain distance of the protected person’s place of residence or work
- not to approach the school or other specified premises at which the protected person may from time to time attend for education
- not to approach or contact the protected person except for the purpose of arranging or exercising contact in accordance with a Family Law Act order.
An order which prohibits a parent from assaulting, molesting, harassing, threatening or otherwise interfering with a child does not of itself prevent that parent from having contact with the child. It should also be noted that a school is not regarded as a workplace of a student.
If an AVO is made that specifically prevents a person from approaching or attending a school and staff become aware that the order is being breached, the principal should consider informing the protected person. If immediate concerns are held for the safety of any child or other person on the site, principals should immediately contact the police.
Situations can arise where both a Family Law Act order and an AVO operate at the same time. While the courts try to ensure these orders do not conflict, there will be times when a conflict does occur. If a Family Law Act order relating to the time a child is to spend with a person is inconsistent with an AVO, the Family Law Act order will prevail. Principals should seek advice from the Legal Services about conflict issues that arise in respect of Family Law Act orders and AVOs.
Sometimes a parent may have bail conditions pending the completion of criminal matters before the court. Bail conditions can vary widely and may be similar in terms to those available under the apprehended violence order scheme.
Courts may also place persons on good behaviour bonds following completion of cases. These bonds may restrict the activities of persons and can include conditions similar to those available under the apprehended violence order scheme.
If principals become aware of breaches of bail conditions or good behaviour bonds, they should deal with such matters in the same way as outlined in paragraph 17.6.
Case study 33
The mother of a child at the school gives the principal a copy of an order that says her child will live with her. The father is allowed to spend time with the child at specified times. The mother also advises the school that she has an AVO against the father. The AVO does not cover the child. The father contacts the school and advises that he wishes to attend some school functions at which the mother will be present. The mother advises the school that under the terms of the AVO he cannot do this.
Ask for a copy of the AVO to clarify the orders. Depending on the terms of the AVO, for example, the order may limit the distance that the father can be from the mother, it may be necessary to advise the father that he cannot attend the school activity if the mother will be there. The orders may allow the father to be at the same location as the mother as long as he doesn’t approach her. If the AVO does not specifically prevent the father from attending he should be advised that he will be able to attend the activities, however, if he does not comply with all the relevant terms of the order while on school premises the police will be contacted.
Case study 34
The mother of a child at the school gives the principal a copy of an Apprehended Domestic Violence Order which names her husband as the defendant and both her and the two children from the marriage as the protected parties. The order contains the standard clauses that include the defendant will not assault, molest or harass the protected persons but also goes on to give additional orders that the father cannot come within 100 metres of the protected persons. The father has been attending the children’s class as a volunteer in the school’s reading program.
The principal should contact the father and advise that, in light of the terms of the AVO, that he cannot continue to attend the school as a volunteer reader during the period of the AVO.
18. What to do if parents deliberately breach court orders
It cannot be stressed too highly that it is not the role of the department to resolve disputes between parents in family law matters.
It is rare that family law orders specifically refer to issues at a school. Again, it is not the role of the school to either resolve or enforce family court orders, however if a parent conducts himself or herself at school in a way that is inconsistent with a specific order relating to the school, and the principal believes that the conduct is having a negative impact on the child the principal should discuss the issue with the parent. If the parent does not change their conduct to comply with the order then the principal should advise the other parent. Any breach action in a family law matter must be conducted by one of the parties.
If the behaviour is having a negative impact on the child and the parent continues the behaviour, the parent should asked to leave the school or police will be called. Under no circumstances should principals allow themselves or other staff to be placed in a position of danger when trying to resolve any problems that may arise. Staff are not expected to physically restrain parents. If parents abuse staff, use or threaten to use physical violence or refuse to leave the premises when directed to do so, the police should be immediately contacted.
19. Special provisions for government pre-schools
Department of Education pre-schools are subject to the provisions of the Education and Care Services National Regulations (NSW) which outlines the requirements for operating care centres in New South Wales.
Some of the obligations imposed on pre-schools vary from the provisions contained within this policy:
- parents have the right of contact with their children at any time the child is at the centre
- parents cannot enter the centre if a court order prohibits contact with a child
- only parents or persons authorised in writing are permitted to collect the child form centre
20. Recovery orders and location orders
Police sometimes attend a school with a warrant or a recovery order issued by a court for the return of children who may be enrolled at the school. Principals should view the details of the warrant, confirm the identity of the police officer(s), check the details referring to the child provided by the police and then assist the police to action the warrant. This may mean allowing the police to collect the children from the school or advising them of their location if they are not at the school.
Provided police have a warrant or recovery order, schools should assist police irrespective of any objections from the child concerned.
If police do attend in these circumstances, principals and staff should act with sensitivity and regard for the dignity and potential fears of the children concerned and for the wellbeing of other children and staff at the school. Police should be asked to wait in the principal’s office or general office area rather than proceeding directly to a classroom. Where children show fear or incomprehension about being taken by police, every effort should be made to work with the police to reassure the children that they are safe.
Location orders may occasionally be served on the department or individual schools. If they receive these orders, principals should provide any relevant details to the appropriate court outlined in the order.
The Commonwealth Government may also ask for help from the department to locate children who have been abducted from overseas, generally by a parent, and who are believed to be residing in Australia. Prior to commencing action to have such children returned to their rightful home, the Commonwealth authorities need to ascertain an address for the children so that appropriate legal proceedings can be commenced against the parent.
These matters are coordinated by Legal Services who usually request schools to provide any relevant information about the children to the Commonwealth. It is important that these requests are acted upon as quickly as possible and under no circumstances should any information be provided to the child in question or his or her parent about the request for information.
21. Requests that staff give evidence in family law proceedings.
Staff may be asked by parents involved in family law proceedings to give written statements or affidavits regarding the performance of children at school. These requests may also ask for details about the behaviour and appearance of the children.
Unless they have been served with a subpoena, it is up to individual staff whether or not they provide statements to parents in these matters. Staff cannot be forced to provide assistance in any way except when they have been given a subpoena. If served with a subpoena, staff must comply with its directions – that is either produce documents or attend to give evidence or both.
Before providing statements staff should consider the nature of family law litigation. Family law disputes are acrimonious and giving a statement to a parent in a dispute can be seen by the other parent as taking sides. The lawyers acting for the other parent might subpoena the staff member in order to cross-examine them and possibly bring their views into question. If staff do provide a statement or an affidavit, comments should be restricted to direct observations of the person making the statement or affidavit. Teaching staff can provide information based on their professional experience or expertise. Personal comments or observations about the fitness of respective parents or the merits of individual court proceedings should be avoided. Staff should only agree to sign any statement or affidavit once they are completely satisfied with its contents. If a staff member wishes to provide a statement in a family law matter they are more likely to avoid being subpoenaed to attend court if they ensure their statements are objective and professional and provide the same statement to both sides of the dispute simultaneously, thereby avoiding the appearance of taking sides.
Sometimes requests will be received from lawyers who are acting on behalf of children (as opposed to either of the parents) in contested family law proceedings. These lawyers are often referred to as the separate representative or “sep rep” and are appointed by the court in cases where the court is concerned that the children’s interests will not be addressed otherwise. Staff should be aware that the best interests of the child are always the court’s primary concern and they should assist the children’s legal representative as much as possible. Prior to giving any information, staff should confirm the lawyer’s appointment by the court, generally a letter from the court registry confirming the appointment.
Both parents and their lawyers will often assure the staff member they will not be required to attend court if they simply provide a written statement. These assurances cannot be relied upon as there is no guarantee that the lawyers for “the other side” will subpoena the staff member to attend court.
If a staff member receives a subpoena to give evidence in court, the staff member will be regarded as being on duty if the evidence arises because of his or her employment at the school. Staff should refer to legal issues bulletin 18 – Giving evidence in court and tribunal proceedings and legal issues bulletin 25 – Subpoenas for further information.
22. Responsibilities and delegations
Principals must make these guidelines accessible to all employees. There are no delegations necessary for the implementation of these guidelines.
These guidelines take effect from 2020.
24. Associated documents
While this document is the primary source document for guidelines on family law related issues, the following documents also assist:
- legal issues bulletin 44 - Apprehended Violence Orders
- legal issues bulletin 18 – giving evidence in court and tribunal proceedings
- legal issues bulletin 25 – subpoenas
- legal issues bulletin 53. young people living independently
- the department’s Privacy Code of Practice
- the department’s Privacy Bulletins
25. For further information
The officer responsible for these guidelines is the department’s General Counsel, telephone 7814 3896 or fax 9561 8543.
- Information for parents and students – family law issues and the Department of Education
- Important information for parents and students
References are to paragraph numbers or case study numbers
Access to school reports and documentation
- generally (12.1 – 12.7)
- privacy considerations (12.10)
- where parent does not have parental responsibility (12.5 – 12.6)
Apprehended Violence Orders
- ability of parent to have contact with child (17.6)
- effect on parental involvement in school activities (13.6 – 13.9)
- generally (17.1 – 17.4)
- where conflict exists with family court order (17.7)
- AVOs (No. 33 - 34)
- confirmation of enrolment details (No. 10 – 12)
- enrolment (No. 1 – 7)
- name of student (No. 8 - 9)
- parental involvement in school activities (No. 23 - 29)
- picking up children after/during school (No. 13 – 17)
- release of information to parents (No. 18 – 20)
- step-parents (No. 30)
- release of information to (14.7)
- capacity to make own decisions (7.2 – 7.3)
- conflicts with views of parents (7.8)
- definition of (7.1)
- living away from home (7.4 – 7.5)
Contact with children at school
- birthday cards, letters and presents (11.4 – 11.5)
- by grandparents and other relatives (14.1 – 14.2)
- defined (6.1 & 6.4)
- generally (11.1)
- when it may occur (11.2)
- copies to be provided by parents (6.2)
- deliberate breach of by parents (18.1 – 18.3)
- retention and storage of copies of orders (6.3)
- staff role when orders deliberately breached (18.2 – 18.3)
Decisions by department staff
- factors taken into account when made (5.4)
Definition of terms used (6.1)
Department of Communities and Justice
Department of Education
- obligations of in relation to family law disputes (5.1)
- principles relied upon when making decisions (5.4)
- capacity of parents to enrol child (8.1)
- confirmation of to non-enrolling parent (10.1 - 10.2)
- confirmation of to other persons or agencies (10.3 – 10.5)
- name to be used for child (9.4 – 9.5)
- out of home care children (8.11)
- use of short term attendance procedures (8.8)
- where child already enrolled elsewhere (8.3)
- where disputes exist between parents (8.6)
- action by parents if unhappy with name change (9.6)
- enrolment in non-birth certificate name (9.5)
- first names (9.7 – 9.8)
- generally (9.1 – 9.3)
- nicknames (9.8)
Out of home care children
- definition of (6.1)
- enrolment of (8.6)
- provision of information to Department of Communities and Justice or foster parents (14.6)
Parental involvement in school activities
Prior to school services
- DoE Code of Practice regarding release of child’s information (7.9)
Release of information
- location orders (10.5)
- parent’s contact details (10.2)
- to grandparents & close relatives (10.9)
- to non-enrolling parent (10.1)
- to other persons & agencies (10.3 – 10.5)
- when AVO applies (10.7)
- when identity not known (10.6)
- when student objects (10.8)
Removal of children from school
Information for parents and students
The department recognises that family breakdowns take place. The department relies on the following principles when meeting its obligations to students and parents:
- the education of a child is primarily the responsibility of the child’s parents
- decisions will be made to ensure the continued effective and efficient operation of the school
- generally, it will be assumed that both parents have been involved in any decisions made concerning major long term issues impacting on the school
- school decisions are based on what they believe to be the best interests of the child
- where parents cannot agree between themselves on what is in the child’s best interests, it is the role of the court, not the school, to determine those interests
- the school cannot enforce family court orders; school is not the appropriate place for family disputes to be resolved, and it is not appropriate for school staff to resolve family law issues
- a school’s decisions should be unbiased and as far as reasonably practicable, not show favour to either parent
- the obligations imposed by other legislation, such as the Privacy and Personal Information Protection Act 1998 also need to be considered when dealing with family law related issues
- the continued effective and efficient operation of the school and parents’ obligations under the Education Act 1990 to ensure their children of compulsory school age attend school or received home schooling take precedence over any interests parents may assert they have under the Family Law Act 1975.
Parents have a responsibility to advise the school immediately if any changes in family circumstances occur which may impact on the relationship between the school and the parents and/or students. If court orders are obtained by one or both parents, a copy of the orders should be provided to the school as soon as possible.
In the absence of anything to the contrary such as a court order, it is assumed that both parents retain shared and equal parental responsibility for their children. This means that the school recognises that each parent has equal duties, obligations, responsibilities and opportunities in relation to matters involving their children’s education at the school.
The department has developed a detailed policy to assist schools to manage family law-related issues. The main features of the policy are summarised below:
- in the absence of any court order to the contrary, generally, either parent can enrol a child in a government school
- parenting orders are child-focused and are for the benefit of the child. The court’s objective when framing parenting orders is to help the child have as normal a relationship with both parents as is possible
- except in specifically defined circumstances, a child must be enrolled using the name that appears on his or her birth certificate
- unless there are court orders stating otherwise, each parent is entitled to know at which school his or her child is enrolled
- generally, each parent, whether the child is living with them or spends time with them, will be allowed to participate in all school-related activities, including teacher/parent interviews and can have access to school documentation relating to his or her child
- unless there are exceptional circumstances, children will not be permitted to leave school during the course of a school day.
The following notice should be provided to parents on a regular basis. The notice can be incorporated into a variety of school documents: newsletters, emails to parents, information sheets, student diaries, websites. Principals can decide how and when the information is provided.
Important information for parents and students
The department recognises that family breakdowns take place. Unless there is formal notice otherwise, it is assumed that both parents have shared and equal parental responsibility for their children and both parents have been involved in decisions regarding their children’s education. This also means the school recognises that each parent has equal duties, obligations, responsibilities and opportunities relating to matters involving the school.
If changes occur in your family relationship which might impact on the relationship between the school and your family, you should advise the school immediately. This includes providing copies of any relevant court orders.