Question 1

What is the primary consideration in determining a child's best interests in a schooling dispute?

Accepted Answer

The primary consideration in determining a child's best interests in a schooling dispute is set out in section 60CC(2)(b) of the Family Law Act. This consideration is given greater weight and focuses on the benefit to the child of having a meaningful relationship with both parents.

Question 2

Are the views of the child taken into account when deciding which school they should attend?

Accepted Answer

Yes, the views of the child are relevant in the decision-making process. Section 60CC(3)(a) of the Family Law Act states that the child's views should be considered, although they are not usually determinative unless the child is actively unhappy in their current school environment.

Question 3

Does the proximity of a school to the child's residence play a role in deciding which school they should attend?

Accepted Answer

Generally, it is considered in the child's best interests to attend a school close to their residence. While this is a relevant factor, it is not the sole determining factor. The convenience of both the residential and non-residential parent is taken into account, and evidence of any greater effect on the resident parent is also considered.

Question 4

Is a prior agreement between parents about the child's schooling influential in the decision-making process?

Accepted Answer

There is some conflict in the authorities regarding the influence of a prior agreement between parents concerning the child's schooling. However, it is generally considered a relevant factor to be considered, although not necessarily determinative. The court will analyze the evidence discursively, with the factors outlined in section 60CC in mind.

Question 5

What other factors are relevant in determining the child's best interests in a schooling dispute?

Accepted Answer

In addition to the primary considerations outlined in section 60CC(2), there are several additional factors to be considered. These include the child's relationship with each parent and other persons, the parents' involvement in decision-making, the likely effects of any changes in the child's circumstances, the capacity of each parent to meet the child's needs, the child's background and characteristics, any family violence, and any other relevant facts or circumstances. The court must consider all of these factors when making a decision on the school the child should attend.

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