At Coode & Corry solicitors we are often asked to act in parenting matters where parties are unable to come to an agreement regarding what is best for the children.

In the recent case of Stewart & Stewart[2017] FamCAFC 67 the Full Court of the Family Court of Australia was asked to decide whether the parties children should be sent to an expensive private school.


At first instance the Federal Circuit Court held that the parties were not able to afford the costs of private school tuition for their two children, which amounted to almost $50,000 a season.

 The Mother, Ms Stewart (Stewart is a court appointed pseudonym to protect the identity of the children), had substantial debts and her only source of income was $370 a week in social security and $491 in child support.  She submitted that she would be able to pay 40% of the child's private school fees (approximately $385 per week) and that the Father should be ordered to pay 60% of the children's school fees.



Judge Coates ordered that the children attend the local government high school and that the mother had not proven that she could afford 40% of the children's school fees if they were to attend a private school.

Ms Stewart appealed the decision to the Full Court of the Family Court of Australia. The Court dismissed Ms Stewart's application and found there was no substance in Ms Stewart's claims that the trial judge had made an error in finding the parties were financially incapable of affording private school tuition for the two children.

 The Court also ordered Ms Stewart pay the costs of the appeal, which were likely to be substantial.  


While the Court did consider whether the children would be disadvantaged at a public school, as submitted by the mother, and did consider whether the original court had made an error when it didn't order the father to contribute to private school fees, there was also the issue of whether the mother wasted the Court's time.  It would appear that at the last minute the mother sought to introduce new evidence, and sought an alternative order that the children attend the private school and she would pay 100% of the private school fees by selling assets.  Neither of these appear to have formed part of her original case (that is she offered to sell assets to pay her 40%, but she did not appear to offer in the original case to pay 100% of the fees).  This makes the case, at least in part, not an appeal but a new case, and is a timely reminder of how the Court reacts when you waste their time.

The decision is also a reminder that what parent's believe is best for the children (in this case, private school vs public school) may not always be best for the children.  Also, what parents wants can sometimes impracticable.  

You can read more about this case in the Sydney Morning Herald or you can read the Family Court's published judgement.



Are there situations where you can force your ex to send the kids to private school?

Most decisions about the funding of private schools are dealt with through the Child Support Agency, not the Family Court, however in either case it comes down to the intention of the parties.


What is meant by that is, if both parents wanted the children to go to private school, and made that decision jointly and had committed to paying the fees then the Child Support Agency or the Family Court will order that one or both parents must pay for the private school fees (depending on their financial means).  The problem is that evidence around joint intention is very difficult to get.  Almost every private school requires both parents to sign the admission forms, including the promise to pay the fees, before enrolling the children.  Therefore this signed form on it’s own cannot be enough evidence as otherwise these cases would almost always have one outcome, that of forcing the parents to each pay for the private school fees.


There are also pragmatic issues to take into concern, such as the fact that both parents will need to sign the forms to enrol the children in a different school.  It may not actually be possible to transfer the children to a different school until the parents have either reached agreement, or sought an order from the Family Court.  For so long as the children remain enrolled in the school, the school can pursue the parents for payment of fees.


What should I do?

If you are dealing with parenting issues, please make an appointment with Hamish Williams of our office. Hamish is our family law solicitor who has helped many client's reach a fair and practicable outcome in their parenting matters. He is experienced in these matters and can help you sort through what orders a Court is likely to make, and what orders might feel like they are in the children's best interests but are unlikely to be viewed that way by the Court or the other side.  



More information

Join our mailing list to receive all new family law articles direct to your inbox.  You can join our mailing list by clicking on the blue button to left.