Schooling decisions after separation

Enrolling your child at school

Your child must attend schooling from the age of six until they reach the minimum school leaving age. This is known as the compulsory schooling age.

This can include:

• schooling at a government or non-government registered school, or
• home schooling.

You and your ex-partner have a legal duty to ensure that your child attends schooling while they are of compulsory schooling age. This means you must enrol and send your child to school, or ensure that your child is registered for home schooling.

If you don’t enrol and send your child to school, or register your child for home schooling:

• you are committing an offence, and you may be prosecuted in the Local Court of NSW. If you are found guilty, you may receive a fine or a community correction order.
• a report may be made to the NSW Department of Communities and Justice that your child is at risk of significant harm
• the Secretary of the NSW Department of Education may apply to the Children’s Court of NSW for a compulsory schooling order. A compulsory schooling order can direct you or the Secretary of the Department of Education to do something, such as enrol your child at a public school.

School fees

You and your ex-partner are both responsible for financially supporting your child and meeting their needs. This includes covering the cost of their school fees, uniforms, books, school supplies, and excursions.

How you pay your child’s school fees is something you and your ex-partner should discuss and try to reach an agreement on.

Public school fees may be included in your child support assessment. Private school fees are usually considered an extraordinary expense and may not be covered by child support.

For more information, see Child support.

Public school fees

If your child is enrolled at a public school, their schooling is free. The school cannot ask you to pay fees for their education. The school can ask you to make contributions to enhance the schools educational and sporting programs. These payments are voluntary.

The school may charge fees for elective subjects that go beyond the minimum requirements of the curriculum. If you are unable to pay for elective subjects because of financial hardship, you may be eligible for assistance from the school. You should speak to the principal about what assistance you can receive.

You should also ask the school what financial support they provide to cover costs of basic compulsory items like school supplies, uniforms, and school excursions.

If you are having difficulty paying your child’s school fees, see School expenses on the National Debt Helpline website.

Private school fees

You may have to sign a school enrolment contract or agreement for your child to attend a private school. This contract will set out the of conditions of your child’s enrolment. This may include:

• the amount and due date of your child’s school fees
• the amount of notice you must give to withdraw your child from school
• the consequences of not paying your child’s school fees on time.

It is important that you understand your legal obligations before you sign any school enrolment contract. If you don’t understand the terms of the contract, you should get legal advice. You should also take some time to carefully consider whether you can meet your legal obligations under the contract, such as paying the school fees. Once you sign the contract, you are bound to follow it.

If you can’t pay your child’s private school fees, you should speak to the school as soon as possible. You may be able to set up a payment plan or get financial assistance to help cover the cost of school fees.

You should also speak to a financial counsellor.

If you decide to withdraw your child, you may be required to give the school a minimum amount of notice.

If you don’t pay your child’s private school fees, the school can ask your child to leave and take action to recover any money you owe.

For more information, see Responding to a claim.

In some circumstances, the school may not be able to enforce the contract if the terms are unfair. Under the Australian consumer law, the terms of a school enrolment contract must be fair.

For more information, see Unfair contract terms on the NSW Government website.

If you are unable to pay your child’s private school fees, you should get legal advice.

Making an agreement

If you and your ex-partner have parental responsibility and/or have joint decision-making for your child, you should consult with one another about any decisions relating to your child’s schooling if it is safe to do so. This includes decisions about:

• what school your child will attend – public, private or home school
• whether your child will attend the same school as siblings
• travel to and from school
• how you will pay school fees
• who will attend school events, such as parent-teacher conferences.

When making schooling decisions, you should consider not only the academic performance of a school, but also:

• the importance of your child having a stable, consistent routine
• your child’s friendships and social connections
• your child’s after school sports or activities
• whether you can afford the school fees.

If you need help to make decisions, you could speak to your child’s teacher, school counsellor, or allied health professionals for further advice. 

If you reach an agreement, you may want to put it in writing. 

In your agreement, you may want to specify the steps that you need to take when making future schooling decisions. This may include:

• the timelines for making schooling decisions
• the need to consult with one another
• attending mediation, if you have a dispute, before going to court. 

For more information, see Parenting agreements.

Resolving a dispute

If you and your ex-partner have a dispute relating to your child’s schooling, you must follow the pre-action procedures and arrange mediation to resolve your dispute, unless you are exempt.

For more information, see Pre-action procedures in parenting cases.

Mediation is a practical way for you and your ex-partner to resolve your dispute without going to court. It is much cheaper and quicker to reach an agreement at mediation than it is to apply for court orders.

You should arrange mediation well in advance of when your child needs to be enrolled at school. There can be significant delays in attending mediation, depending on the service that you are using. You need to allow enough time for mediation to take place, and an application for schooling orders to be heard by a court, before the final date of enrolment. If you attempt mediation too late, you may not be able to resolve your dispute and enrol your child before the new school year starts.

For more information, see Family law mediation.

If you make an agreement at mediation, you should put it in writing.

For more information, see Parenting agreements.

If you can’t reach an agreement at mediation, you will be given a section 60I certificate which will allow you to apply to a court for schooling orders. A section 60I certificate is valid for 12 months.

What the court will consider

When deciding your dispute, the court will determine what is in the best interests of your child. It will consider a range of factors, including:

• your child’s individual needs and each school’s ability to meet those needs, such as educational support
• your child’s views
• what school will allow your child to have a stable and consistent routine
• any disruption to your child’s friendships and any anxiety your child may experience changing friend groups
• the practicality of attending each school, such as the distance of travel to and from school from each parent’s home
• school fees
• any previous agreement that you and your ex-partner had.

The court won’t compare schools based on their reputation or academic ranking. It won’t determine which school is superior. 

Schooling orders

Schooling orders may state that you and your ex-partner:

• must do anything, including sign any documents, to allow your child to be enrolled and attend the relevant school from a certain date
• can’t change your child’s school.

Schooling orders will be legally enforceable against you and your ex-partner. They will remain in force until they are changed, or your child turns 18 years old. You must follow all court orders while they are in force. This includes taking all reasonable steps to comply with an order.

Schooling orders are not enforceable against your child’s school. If the school doesn’t accept your child, you can’t apply to enforce the orders. For this reason, it is important that your child is accepted into the school you want them to attend before you apply for schooling orders. You should attach a copy of their acceptance letter to your affidavit.