Separating with children can make the process of coming to a financial settlement quite difficult. This is especially true if you are divorcing and your children attend a private school. Who pays the fees after a separation can be a very contentious issue.
Private school fees can be up over $30,000 per year for some schools, and this can be a significant financial sticking point for parents after a separation or divorce.
It is the responsibility of both parents to cover the costs of raising a child including their education. Deciding on what contribution you make can be difficult when your relationship is financially and emotionally strained.
If you have a child at a private school, you do not have to contribute to the cost of a private education unless you have consented to it. Child maintenance can be decided in a variety of ways.
The most formal method is via the court processes. You can seek an administrative assessment to assess the education expenses such as school fees, uniforms, school trips and extra-curricular activities. They use the formula set out in the Child Support (Assessment Act) 1989 (Cth.).
If one parent wishes the child to be educated by private education, they can seek to a contribution from the other parent.
If one parent wishes the other to contribute to private school fees against their wishes, they can make an application to the court to depart from the administrative assessment.
The court would look at the impact of the child because the child is being educated in the manner expected by their parents. They would also look at whether it was just and equitable and otherwise proper to make the order.
The principles that came out of the precedent case of Mee v Ferguson (1986) FLC 91-716 are relied upon to give some guidance in how the court sees the claim for a contribution to school fees.
In this instance the court looked at whether the “non custodian” parent had agreed to the child attending private school. This can be evidenced by signing enrolment forms for your child at school.
If so, that parent could be liable to contribute to the fees depending on your financial capacity.
Where a parent hasn’t consented, they are not required to make a contribution. However, there can still be liability if the child’s welfare is a deciding factor in the child attending a private school. Again, the extent of the contribution would be assessed on their financial capacity.
The court will not decide solely on whether the “non custodian” parent can afford to pay the fees. The other factors such as consent, child welfare and if it is just and equitable must be a consideration.
School fees can be a complex matter to resolve and should be formally resolved to protect both parents financially. With most private schools both parents have signed a commercial agreement making you both liable for the school fees.
There are several other ways parents can reach a formal agreement on child maintenance:
We make every attempt to avoid court proceedings and we seek to help our clients resolve their issues without the intervention of the Court. Court may be necessary if issues cannot be resolved via the other family law dispute resolution methods.
If you have a query regarding child maintenance and support you should ensure that you get professional family law advice. This will ensure that you are protected and you are not unfairly financially burdened by school fees after a divorce.
If you are considering your options or have already separated speak to one of our family lawyers today, we can help.
Please note: The above is not intended to be legal advice. Every circumstance is different. Always seek legal advice in relation to your individual situation.
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Theresa is the Team Leader of our Family Law and Estate Planning practice groups. Theresa's practice includes acting for clients...