Family law issues

 

Many children in Victorian schools come from families where parental relationships have broken down. Therefore, schools or teachers may become directly or indirectly involved in family law issues. Disputes may involve parents and other carers of children, family violence or child welfare, including dealing with children who are in the care of child welfare agencies. See Section 4: Relationships, families and young people, for discussion of these areas.

Care and legal control of a child

The Family Law Act 1975 (Cth) (“FLA”) emphasises that children have certain rights and that parents have duties and responsibilities towards their children. Both parents equally share these duties and responsibilities, even after separation, divorce or re-marriage. These parental responsibilities can only be changed by a court order.

Although step-parents can and do carry out parenting roles, they do not automatically, as a matter of right, assume the legal parental responsibility. (See Parental responsibilities and child support.)

On 7 June 2012, changes were made to the FLA that were intended to better protect children from harm, and to improve the family law system’s response to family violence and abuse.

The FLA requires a court to regard “the best interests of the child as paramount consideration” when making a parenting order. The changes mean that the court must take certain matters into account, including both the benefit to the child of having a meaningful relationship with both of their parents, and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. A court may give greater weight to protecting the child from abuse, than to strict adherence to the principle that the child should have a meaningful relationship with both parents.

A court may also take other factors into account, such as views expressed by the child, and the kind of relationship that a child has with their parents, grandparents or other family members.

These changes to the FLA acknowledge the importance of other people in children’s lives, and recognise the value of children spending time with their grandparents and other relatives, provided this does not put children at risk of harm. The most important principle is that children’s safety should come first, before other factors in a child’s care can be considered.

Arrangements between separated or divorced parents about who has responsibility for various aspects of the care and welfare of their children may be written out as a parenting plan and filed with a court. Courts may also make orders (called parenting orders) setting out:

who the child can see and when they can see them;

with whom the child will live; and/or

who has particular responsibility for other issues, such as decisions about medical treatment, religious upbringing, discipline issues and schooling.

It is highly advisable for schools to ask whether parents have any such arrangements in place for the care and contact of their children. It is equally important for the schools to ask and know whether there are court orders which prohibit children from seeing the other parent or family members.

Schools should keep the copy of such orders and all relevant teachers and other staff (such as after-school care staff) must be advised of them. If the school should allow a child to go with a parent or other family member prohibited under court order and the child should then suffer harm, the school may be liable in negligence.

Disputes over contact

Schools sometimes receive conflicting instructions from separated or divorced parents about contact with their child. Schools and teachers have a duty of care for the safety and wellbeing of the child in their care.

If a parent or other family member that the child does not normally live with arrives at school to contact the child or to take the child home, the senior staff must look at the copy of the court order. They may also contact the parent with whom the child normally resides, and seek their advice whether it is appropriate to release the child to the other parent. If the residing parent cannot be contacted, the school may contact the Family Court or the Federal Circuit Court to check whether there is a court order restricting the non-residing parent’s contact with the child.

A school, as a matter of course, should ask for a copy of any court orders or parenting plan for a child at the time of the child’s enrolment in the school. A copy of such orders should be kept in the school records in case one parent arrives at school and asks for the child to be taken home, to the doctor, on an outing or any such activity. A school can refuse to allow contact with a parent if it is contrary to the court orders.

Separated parents are jointly responsible for the care, welfare and development of their child. When they have obtained a relevant court order regarding that issue, schools and teachers must treat both parents in a fair and non-discriminatory manner. In Hudson v South Australia [2008] SAEOT 8 (22 May 2008), the father of a child brought a series of complaints to the Equal Opportunity Tribunal of South Australia against the Department of Education and Children’s Services alleging that he was discriminated against on the grounds of sex. He claimed that the department treated him less favourably because he was a man than it would have treated a woman in an identical or similar situation.

Among other complaints, the father alleged that the Federal Circuit Court order required that the mother entered the father’s name and contact details on the school enrolment form as the second person to be contacted in case of emergency. It was accepted that the school was aware of the order. The father claimed that the court order was not strictly adhered to when the child was enrolled in the school as the mother provided incorrect details about him on the enrolment form. He further alleged that the school’s principal failed to check the adequacy or correctness of his child’s enrolment details.

The tribunal held that the order was directed to the mother and did not impose an obligation on the school to ensure that the mother complied with it. The tribunal concluded that the school’s failure to ensure the accuracy of the details provided by the mother did not amount to discrimination on the grounds of sex against the father of the child. Though the complainant’s claim was unsuccessful, it highlights that school authorities should check the accuracy of details in enrolment forms, especially for children who are subject to a particular family law order, in order to avoid claims based on discrimination or negligence.

Family violence or stalking of a child

The Family Violence Protection Act 2008 (Vic) states the meaning of family violence to include the family members causing a child to witness, hear or otherwise be exposed to the effects of violence. The Act extends the definition of “family members” to include extended family relationships and violence against parents by children.

Sometimes a parent is violent towards another parent or towards their child. They may harass, molest or stalk a child before or after school. An intervention order (apprehended violence order) or anti-stalking order may be sought from the Magistrates’ Court against the violent parent.

Alternatively, the Family Court or the Federal Circuit Court may grant an injunction or restraining order on request of a parent on behalf of the child. The order prohibits the violent parent from having contact with the child or the family member with whom the child resides. The police can arrest the parent who is in breach of an intervention order.

Victorian Legal Aid has produced fact sheets explaining various aspects of family law relevant to children and those who care for them, available at www.legalaid.vic.gov.au.

Information on the Family Violence Protection Act 2008 (Vic) can be found at the Australian Institute of Family Studies (AIFS) website at www.aifs.gov.au. Look under “Publications”, then “Fact sheets and Family trends” for the fact sheet Family Violence Protection Act 2008.

Many Victorian schools run programs on respectful relationships, exploring issues of gender inequality, respectful relationships and prevention of violence against women and children. Domestic Violence Resource Centre Victoria has developed a Guide for Teachers on Respectful Relationships, available at www.dvrcv.org.au/teachers.

Sending information to parents

Unless a court order is made restricting parental responsibility, the school should send both parents copies of the school reports and other information concerning the school and the child. Similarly, both parents have access to their child’s teachers and to their child’s school progress report.

Changing a child’s name

Both parents have authority to decide their child’s name. Where separated or divorced parents cannot agree regarding the child’s name, a court order or an injunction may be required to resolve the issue. It is legal to use the name that appears on the child’s birth certificate until the court makes a ruling on the issue (see Changing your name).

A child can ask their teachers and peers to be called or known by others by a particular name (other than the child’s name). A child can change their name on turning 18 years of age.

Further information can be found on the website of Births, Deaths and Marriages Victoria at www.bdm.vic.gov.au. Click on “change a name” in the top menu, then “Change your child’s name”.

Further information

For further information on dealing with family law issues, contact:

Family Court of Australia

Tel: 1300 352 000

Email: enquiries@familylawcourts.gov.au

Web: www.familycourt.gov.au

Federal Circuit Court of Australia

Tel: 1300 352 000

Email: vicreg@fedcourt.gov.au

Web: www.federalcircuitcourt.gov.au

For general child welfare matters, contact:

Victorian Department of Health and Human Services

Child Protection Crisis Service

Tel (after hours crisis line): 13 12 78

Web: www.health.vic.gov.au

Victorian Department of Education and Training

Tel: 9637 2000; 1800 809 834

Email: edline@edumail.vic.gov.au

Web: www.education.vic.gov.au