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What happens when separated parents cannot agree upon which school their child will attend?

February 5th, 2019

After parents have separated, it is not uncommon for many issues in relation to their children to come into dispute.  These issues may have previously been agreed upon prior to separation.  One issue that we see often in family law is the choice of school which your child will attend.  When this issue comes into dispute it can cause a significant deterioration in the relationship between the parents, as well as anxiety and stress for both the parents and child.

Which school a child will attend is a decision that both parents need to make jointly, unless one parent has sole parental responsibility for the child.

With the new year fast approaching, here are some tips on steps to take to resolve your dispute about schooling prior to the commencement of the first term:

  1. Raise the issue of schooling early and well before the commencement of the school term. Communicate with the other parent about which school you would like your child to attend and the reasons why.
  2. If the other parent does not agree with the school you have proposed and they propose an alternative school, consider whether or not that school would be in the best interests of your child. At the very least you should make your own enquiries and research about the school before coming to any conclusion.
  3. If you still have not reached an agreement invite the other parent to attend family dispute resolution, also known as mediation, to further discuss the issue of schooling. You should prepare for the mediation by researching all schools that have been suggested or which your child could potentially attend and the reasons why you propose your child attends or does not attend those schools

If an agreement can’t be reached at mediation, you will be issued with what is known as a section 60I certificate which will enable you to commence court proceedings to have a court decide which school your child will attend.  This should be a last resort.  Prior to commencing proceedings, you should obtain expert legal advice from an experienced family lawyer about what considerations the court will take into account.  This may also assist you in your negotiations.

If you require assistance with your family law parenting matter, contact our team of expert Cairns family lawyers today on (07) 4036 9700 or enquiries@millerharris.com.au.

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Do you need to attend mediation or Family Dispute Resolution prior to going to court in relation to parenting matters?

September 25th, 2018

The Family Law Act facilitates what is known as compulsory family dispute resolution.  This requires parents to attempt to mediate their parenting dispute with a family dispute resolution practitioner (“FDRP“), prior to commencing proceedings in court.

If parties attend family dispute resolution and they are unable to resolve the issues in dispute, the FDRP will issue a section 60I certificate, which must be filed with any application made by a parent who asks the court to make orders about parenting arrangements for a child.

There are some exemptions to the requirement to file a section 60I certificate with an application for parenting orders.   Some of these exceptions include:

  1. where the matter is urgent; for example, the child has been relocated or abducted without the consent of the other party;
  2. if the court is satisfied that there are reasonable grounds to believe that the child would be at risk of abuse if proceedings were delayed, where there has been child abuse and/or family violence or if there is a risk of family violence;
  3. if one of the parents or parties is unable to participate in family dispute resolution because of some incapacity; and
  4. if the application is in relation to a contravention of an existing parenting order.

If a party is filing an application without a section 60I certificate, they must file with that application an affidavit non-filing of family dispute resolution certificate.

Depending on the circumstances, prior to filing an application for parenting orders without a section 60I certificate, based on the family violence exemption, it may necessary to discuss the potential to attend family dispute resolution with a FDRP.

In some circumstances, a FDRP will issue a section 60I certificate without the need to attend family dispute resolution, if they deem mediation is not appropriate due to family violence considerations.

If you would like further information on the requirement of obtaining a section 60I certificate or attending family dispute resolution, contact our Cairns family lawyers today.

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