Family Law and Schools: Your Duties and Responsibilities as a School Leader

  1. Understanding parenting arrangements and shared parental responsibility

Current scheme of care legislation came into effect in 2006.  The 2006 amendments adopted a view that both parents would have a significant role in a child’s life unless a parent was an unacceptable risk. Care orders from then on included much more time with the non-resident parent. Until then, a typical care arrangement would have been 12 nights a fortnight with the resident parent and two nights a fortnight with the non-resident parent and with school holidays being spent usually with equal time but with the December school holidays often broken straight through the middle so that children who had spent two nights a fortnight with a particular parent were then spending three weeks with that parent.  It was also not unusual for the non-resident parent to have no contact with the children in the 12 nights that they were not resident with them and to have little opportunity to remain current about their children’s circumstances.

Section 60CC is the section of the Act that is described in this way – how a court determines what is in a child’s best interest.  The primary considerations are the benefit to a 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.

After those primary considerations, there are a number of additional considerations. I have included that section in the paper just so you are aware of the list.  I am not seeking to give you legal education, however, it is important for a clear understanding of the objects and principles of the Act.

Section 60B is also a significant section and it sets out to ensure that the best interests of children are met, and it sets out a series of steps to be taken and explains the underlying objects which are that children have the right to know and be cared for by both of their parents, they have a right to spend time on a regular basis with, communicate on a regular basis with both their parents and other people significant to their care, welfare and development, parents are to jointly share duties and responsibilities, parents should agree about the future parenting of children, and children have the right to enjoy their culture.

In reality, these goals operate in the pragmatic context of how many nights a parent will spend with the child per fortnight.

Section 65DAA is another important section. The court has to consider a child spending equal time or substantial and significant time with each parent in certain circumstances. Again, I have extracted that but the tagline on the section that is important is equal time or substantial and significant time.

More orders are made providing for substantial or significant time than are made for equal time.

The logic of that is that parents who have a high conflict parenting relationship are not found to be the best parents to share week-about care and that if you are litigating to work out your care arrangements, you may well meet the criteria to be seen as a high conflict parent.

Some parents are considered to be an unacceptable risk to their children.

In a family environment where one parent is not an unacceptable risk, where neither parent is an unacceptable risk, children spend four, five, six or seven nights a fortnight with the other parent. As a professional, I consider a 5/9 split as ordinary and everyday as the alternate weekend arrangement was before the 2006 amendments.

So, parenting arrangements then are tailored to accommodate children’s age.  Younger children need to see both parents more regularly, so in the situation of a 5/9 division, that might be three nights in one week and two nights in another for a younger child, but five nights in a row for an older child.

Another consideration is the number of transitions that children have to endure. Generally, with low conflict relationships, transitions are considered to be less difficult for children than in high conflict situations. Sometimes, parents think that they could look after children after school even when the children are spending the evening and overnight with the other parent. While this might seem to be a simple solution and to provide very good after school care arrangements, such an arrangement is actually very difficult on children as they settle into one home and their routines and expectations of one parent only to have to switch back to the routines and expectations and, indeed, personality of the other parent.

There are all sorts of arrangements that people engage in. They work to work rosters, they work to children’s after school arrangements and they frequently include new partners and grandparents, as you all know.

Time spent is considered in terms of days and nights. Parental responsibility is an entirely different concept. The old language for parental responsibility was once guardianship. Parental responsibility is given the meaning that it has in section 61B.  Parental responsibility includes the duties, powers and authority which, by law, parents have in relation to children.  Parents all have joint parental responsibility with or without an order. If a court makes an order for parental responsibility, it can define the ambits of responsibility, so it might be that the court would grant one parent sole parental responsibility for medical decisions, or sole parental responsibility for education decisions. These are not common orders and most people retain joint parental responsibility.  That means there is an obligation to consult with the other parent about decisions that have a long-term impact. They are traditionally described as decisions about schooling, medical matters and education.

When the 2006 amendments were first introduced, the court was very wary of ordering sole parental responsibility. However, as a response to the need to manage families where there is family violence, the court is now much more robust in making sole parental responsibilities so that the offending parent may find that they lose the right to exercise joint parental responsibility because the victim parent cannot realistically be expected to work with a person who has inflicted violence upon them.

Applicable legal principles

Actual extract from a 2020 Judgement:

When considering what parenting order is proper, I am obliged to apply Part VII of the Family Law Act 1975 (Cth) (“the Act”) which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[5]

A “˜parenting order’ is defined in s 64B of the Act and may deal with matters including:

  1. The person or persons with whom a child is to live;
  2. The time a child is to spend with another person or other persons;
  3. The communication a child is to have with another person or persons; and
  4. The allocation of parental responsibility for a child.

The objects and principles of Part VII of the Act are set out in s 60B (1) and (2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.

In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).

The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc. (s 60CC).

In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).

Family violence is defined in s 4AB and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.

The Court is not required to make findings of fact on every factual dispute raised by the parties.[6] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[7]

Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).

Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).

Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[8]

References

[5] Family Law Act 1975 (Cth), s 65D.

[6] Baghti & Baghti and Ors [2015] FamCAFC 171.

[7] M & M (1988) 166 CLR 69.

[8] Banks & Banks [2015] FamCAFC 36; (2015) FLC 93-637.

  1. Parent and student consent and privacy issues:

Best practices for working with separated parents and divided and blended families.

Many parents never have orders.

  1. Parental agreements about the care of their children can be recorded in two ways. One is a parenting plan. The other is a court order. It may be by consent but need not been.
  2. Many parents have nothing in writing. These are likely to be the low conflict parents and are of least concern to schools.
  3. Parents without orders have joint parental responsibility.

Information has a number or sources. Your management of information will be determined by its subject matter and its form and your school’s policies.

Parent to school about themselves

The school will have its own articulated policy which has been communicated to parents.

  1. The school should not share information about a parent to another parent unless permitted to do so.
  2. Act cautiously.

Parent to school about the other parent

I would recommend absolute caution. Don’t accept any anecdotal information and don’t reproduce anything.

Parent to school about a student of the school

  1. This is more complex as information that is relevant to the child’s achievement at school will become part of the ordinary working information for the school. If it is anecdotal about the child but relevant to education and the parent has not expressed concern about dissemination, the information is part of the working knowledge about the child.
  2. If the information is anecdotal about the child but is about the child’s experiences of the other parent, I suggest caution be assumed in reliance on the information and dissemination. Parties seek to co-opt schools into being on their side. This can create unconscious bias on the part of the school or the teacher which may result in difficulties for the child and or the other parent feeling disenfranchised from the school. Anything in writing can be seen. Remember the subpoena power which I will talk about later.
  3. You will be quoted, or your words will be heard to fit an existing narrative.
  4. If the information is in the form of a medical report, then the school itself has no need to disseminate such a report. The parents will have joint parental responsibility which has not be defined by a court order and such a report should not have been obtained unilaterally. If it appears to have been obtained unilaterally, be cautious about such a report. It is not the role of the school to ensure the other parent is informed.
  5. Information properly sought should be sought in the context of a written authority from both parents.
  6. Beware the perception that the paying parent is treated differently.
  7. What does your own contract with the parents provide for? Is the contract only with the paying parent?

Low conflict parents

  1. I would not accept oral information about variations of any arrangement. Oral information need not be reliable or can be misunderstood.
  2. Invite the parents to provide updates on an annual basis at least.

High conflict parents

  1. These parents are most likely to have orders. There may also be an ICL.
  2. The ICL is most likely to contact the school or subpoena school files.
  3. A Family Report is a document written by a family consultant or social worker appointed by the Court. It provides an independent assessment of the issues in the case and can help a judge make decisions about arrangements for the child or children the case relates to. It may also help the parties reach an agreement. A Family Report is often part of the parenting order process. The report writer may seek information from the school but would do so subject to court order or parental consent.
  4. These parents will quote you and seek to have the school on their side. Be very careful of everything that is said. Keep it formal and in writing. Individual teachers should avoid making anecdotal reports.
  5. When parents are high conflict they often litigate. Litigation is an adversarial process.  Someone wins and someone losses. In many respects it is the parent who loses you have to be thoughtful about. Children need school as a safe space.
  6. Be careful of responding to parent’s emails. This may be done by a busy teacher when tired.   Don’t put yourself at risk with this category of parent.  They are looking for an edge. Your email will get into evidence.
  7. Identify this type of parent and make sure you know the details of the orders if there is anything unusual.
  8. These parents collect children early to avoid the other parent, they withhold children when there is conflict. They question the quality of lunches, ironing of school clothes… anything they think might assist them.
  9. Fall back to school policy whenever you need to.
  10. You are entitled to feel safe.

Family Violence & Apprehended Domestic Violence Orders:

As we all know, Domestic Violence is a significant problem in Australia. Significant strides have been taken in relation to the manner with which society views domestic violence and the process for dealing with DV issues in family. As School leaders, you may be one of the first parties to engage with a child who has been exposed to, witnessed directly or has domestically violent home circumstance.

For context, Domestic violence has a broad definition. It is defined primarily in two acts. First in the Family Law Act at section 4AB. Second, in the Domestic and Family Violence Protection Act 2012 at section 8.

The definition in the Family Law Act is more general in terms of precisely what domestic violence is and in fact uses the term “family violence”. The definition is as follows: –

Definition of family violence etc.

  • For the purposes of this Act, family violencemeans violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member ), or causes the family member to be fearful.
  • Examples of behaviour that may constitute family violenceinclude (but are not limited to):

(a)  an assault; or

                          (b)  a sexual assault or other sexually abusive behaviour; or

                          (c)  stalking; or

                          (d)  repeated derogatory taunts; or

                          (e)  intentionally damaging or destroying property; or

             (f)  intentionally causing death or injury to an animal; or

(g)  unreasonably denying the family member the financial autonomy that he or    she would otherwise have had; or

(h)  unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i)  preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j)  unlawfully depriving the family member, or any member of the family member“˜s family, of his or her liberty.

(a)  overhearing threats of death or personal injury by a member of the child“˜s family towards another member of the child“˜s family; or

(b)  seeing or hearing an assault of a member of the child“˜s family by another member of the child“˜s family; or

(c)  comforting or providing assistance to a member of the child“˜s family who has been assaulted by another member of the child“˜s family; or

(d)  cleaning up a site after a member of the child“˜s family has intentionally damaged property of another member of the child“˜s family; or

(e)  being present when police or ambulance officers attend an incident involving the assault of a member of the child“˜s family by another member of the child“˜s family.

In the Domestic and Family Violence Protection Act 2012 it is defined as:

(1) Behaviour directed toward a person which is: –

  • Physically or sexually abusive;
  • Emotionally or psychologically abusive;
  • Economically abusive;
  • Threating;
  • Coercive; or
  • In any other way controls or dominates the second person and causes the second person to fear for their safety or wellbeing or that of someone else.

 (2) Without limiting subsection (1) , domestic violence includes the following behaviour:-

(a) causing personal injury to a person or threatening to do so;

(b) coercing a person to engage in sexual activity or attempting to do so;

(c) damaging a person’s property or threatening to do so;

(d) depriving a person of the person’s liberty or threatening to do so;

(e) threatening a person with the death or injury of the person, a child of the person, or someone else;

(f) threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;

(g) causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person;

(h) unauthorised surveillance of a person;

(i) unlawfully stalking a person.

This definition extends to procuring someone else to engage in behaviour that if engaged in by the person would be considered domestic violence.

In the Domestic and Family Violence Protection Act 2012, there are also definitions of “˜associated’ domestic violence, “˜exposed to domestic violence’, “˜emotional or psychological abuse’ and “˜economic abuse’. I would recommend that you take the time to read those definitions yourself.

One of the key parts of DV is that it is a civil charge not a criminal charge. Once an order is made, however, a breach of that order is a criminal offence which is prosecuted by the Police and/or the Department of Public Prosecutions.

I could stand her an inundate you with the ins and outs of what constitutes domestic and family violence, however, that will not necessary aide you in your employment and role.

For a school leader an understanding of what Domestic and Family Violence is, is important. The problem you will encounter will be: “what are my obligations, if a child comes to me and either discloses to me in relation to what they are experiencing which you feel may constitute DV.” The reporting requirements are different for each state and each state has a different standard which must be met. I focus in this paper on Queensland’s law.

Firstly, it is critical that you know your school’s internal processes. You must know who you can speak with within your organisation about the issues disclosed to you and where and how confidentiality impacts the extent of your disclosures.

Second, you must be aware that you are considered a teacher for the purpose of the Child Protection Act 1999. With that designation comes responsibilities for reporting. If you form a reasonable suspicion that a child has suffered, is suffering or is at an unacceptable risk of suffering significant harm caused by physical or sexual abuse and may not have a parent able and willing to protect them. This extends to neglect or any other form of abuse.

A critically important section of the law is s 13C of the Child Protection Act 1999. I suggest you take the time to read that section yourself, however, it says as follows;

Considerations when forming a reasonable suspicion about harm to a child

Section 13C – Considerations When Forming A Reasonable Suspicion About Harm To A Child

(1) This section applies to a person in forming a reasonable suspicion, for section 13A (1) or division 2, about whether a child has suffered significant harm, is suffering significant harm, or is at unacceptable risk of suffering significant harm.

(2) The matters that the person may consider include””

(a) whether there are detrimental effects on the child’s body or the child’s psychological or emotional state””

(i) that are evident to the person; or

(ii) that the person considers are likely to become evident in the future; and

(b) in relation to any detrimental effects mentioned in paragraph (a) “”

(i) their nature and severity; and

(ii) the likelihood that they will continue; and

(c) the child’s age.

(3) The person’s consideration may be informed by an observation of the child, other knowledge about the child or any other relevant knowledge, training or experience that the person may have.

So, if anything said to you by a child or anything observed by you that satisfies the above and result in you forming a reasonable suspicion must be report to Child Safety. It is important that you follow internal process prior to disclosing to Child Safety. Of course, if your internal processes are followed and you find yourself in a position where those processes are against you reporting and you still believe your obligation to report is still relevant then we suggest you contact Education Queensland and seek guidance from their legal team. The obligation to report is on the individual and so it is your suspicion that matters.

Dealing with requests for referrals and reports & navigating pitfalls

This is another area which might unwittingly involve you in parental dispute. If you give referrals you must make clear if you are doing that as a person or an officer of the school.  A classroom teacher might have thoughts and might know the local market as to which a leader is doing good work in a particular age group but does your employment contract or status permit you to you to express that opinion as an official position of the school.  I had a matter where the father submitted an application to enrol his daughters.  He filled in the mother’s contact information.  The school sent probably a generic acknowledgment of the enrolment to both parents.  The mother was outraged that he had shared information disclosing her home address without her knowledge. She consulted the police to decide if she considered it a breach of a Domestic Violence order.  I don’t know what the school could have done to avoid being caught up in that difficult moment.   Perhaps a question as to whether the other parent has consented to the provision of their details on the form?   These were not high conflict parents in that they had been able to resolve care arrangements by consent.

There are now many apps on devices. Often you will have one parent having to provide permission to add an app to a device.  Often parents can have covert oversight of the contents of children’s texts, emails or documents.

The other parent may be unhappy that the other has such authority and this might result in the child not having access to apps.  Tread carefully.

Dealing with Subpoenas

Ceteris paribus, confidential case notes by school leaders are able to be subpoenaed.

The duty of confidentiality for school leaders is one that may be overridden by a valid search warrant or being served with a valid subpoena from a court. Although documents may be seized under a valid warrant their use in a court as evidence may be excluded. As a measure of upholding the duty of confidentiality as much as possible, leaders are widely encouraged to implement a tactic or attitude of “aggressive submissiveness”. This term essentially is to be unyielding with confidential information until a judicial officer makes clear that compliance is necessary. Complying with subpoenas is allowed by privacy legislation.

When dealing with privacy legislation and important protection for school leaders is found in the Evidence Act which similar to the Health Practitioner Regulation National Law Act 2009 applies throughout Australia. Within the Evidence Act 1977 are provisions that contain “professional privilege”, information that is privileged is exempt from disclosure to courts. “Professional privilege” prevents the admission of “protected confidences” to the court.

These confidences are:

(a) communications from a person (the confider)

(b) to another person (the confidant)

(c) where the confidant is acting in a professional capacity, and

(d) there is either an express or implied requirement of confidentiality

Despite this protection under the Evidence Act, a court is at full discretion to admit or refuse to admit a protected confidence into evidence. This discretion is conditional on the harm that is caused to the confider being outweighed by the desirability of admitting the evidence. Should this harm to the confider outweigh the desirability of admitting the evidence the court must then refuse to admit the protected confidence (or any document comprising the protected confidence).

Having a perfect transcript opposed to notes can be seen as a disadvantage when dealing with subpoenas as there is more detail on exact transcripts than with notes. All private information can be subpoenaed from school leaders. This is a particular negative of online counselling as everything that gets talked about between client and counsellor has a perfect record of it. In this light it is negative as the client’s confidentiality is at higher risk with more accurate and readily usable information.

It is more sensible then for school administrators and teachers to be subpoenaed than it is for them to be forthcoming with the limited information they can give out as a Court is unlikely to twist information for support of particular positions of parents regarding welfare issues for their children.

  1. A guide to giving evidence in Court proceedings

Although parenting proceedings are to enhance the best interest of the children the subject of the proceedings, once a matter is before a court and there is a trial being held you are in an environment that is alien and a bit arcane.

The original advocate was appointed to replace more basic methods such a trial by ordeal and to attempt to balance power.

Most people giving evidence feel that trial by ordeal is not so remote.

We know from neuroscience that once people get upset, stressed and anxious, their capacity for their best cognition is lost or reduced. Cross examination really relies on your getting a bit rattled before the harder questions get asked!

The usual process is that you will have either provided an affidavit or been subpoenaed to give evidence and produce documents.

Once you are in the witness box:

Opposing counsel will cross examine you.   If a matter involves significant conflict you may have been called a s witness by the ICL. The ICL is the independent children’s’ lawyer and aids the court in gathering and presenting evidence and in adopting a view that is independent of either parent although may coincide with a parent.

Whoever calls you as a witness is usually unable to cross examine you. That means you will be cross examined by the barrister of the parties who may not agree with your position.

Usually there will be questions that appear to seek little information but in fact are laying the foundation for a more significant question or proposition.

Don’t try to guess where they are going.

Listen to the question.  Don’t engage with the person asking the questions. Your job is to inform the court about information relating to a child.  Give a short concise answer.  The more you say the more questions can be generated from your answer.

You don’t have the whole picture so just do you part and leave.

Before you get in the witness box

Please prepare your thoughts and be clear in your opinions or know the contents of the file you are producing.  If you are the author of a document, you may be asked to identify it. It may then be tendered into evidence.  That is a rule of evidence.

You may be considered an expert. Only an expert can express an opinion in the trial.  If you are to be an expert, then the person calling you as a witness will ask you questions about your qualifications and training. This process is called qualifying you as an expert. It may have already been done in the affidavit you may have provided.

This is not questioning you but taking a step required to permit you to give opinion evidence.   Another party may question your expertise for this task.  You may be an expert but not exactly on this topic perhaps.  Again, this is not about you so wait till those issues are sorted out between the lawyers and the judge.

You have one job: to give the judge the best information to make the best decision about the care arrangements for a child or children.

Remember, it is not possible for the adults in a court room to be more confronting than the pupils you habitually stand in front or did stand in front of.  Keep that in mind.   Some barristers have what I call a hectoring style.  It is unpleasant but works for them.  Some are very pleasant and intend you to trust them, so you drop your guard and say perhaps more than you meant to.

It is not personal. They have their client’s instructions and are doing a job.

So, know your topic.

Think about your position or preference in the information.

Listen to the question.

Give the shortest answer you can.

Don’t engage in argument and look at the judge as you answer.

You may what to say yes but and find you are cut off.  The person calling you as a witness has a right to reexamine. They will come back and give you the chance to say more if they think it is important.