Parenting orders can become very important to the children to whom they relate. They can directly address the make-up of a child’s living arrangements, access to and time with the parents, and parental responsibility for making decisions on behalf of the child. Schools frequently use parenting orders as a point of reference for how to approach enrolment and access issues, information sharing and communication with separated or conflicted parents. Although schools may be obliged to consider the terms of such orders in day-to-day operations, they do not have the responsibility to ensure these orders are enforced.
Schools and Parenting Orders: Understanding the Legal Position
Parenting orders made under the Family Law Act 1975 (Cth) are able to deal with a vast array of parenting issues and arrangements, including (but not limited to): the child’s place of residence; with whom a child can spend time; how decisions are made with respect to a child’s education and health; and financial arrangements. As a general rule, however, schools are not parties to the proceedings and are not bound by the orders.
In any event, schools are not at liberty to completely disregard the existence of parenting orders. Schools owe a duty of care to the children in their charge and must take reasonable steps to ensure the children’s safety and well-being whilst on school property. In order to ensure this is the case, schools must have knowledge of the contents of parenting orders made that are provided to the school, and act in a manner that is consistent with the orders where they deal with matters such as:
- Who is allowed to collect the child from school.
- Sharing information about the child with each parent.
- Restricting contact between the child and a particular parent or member of that parent’s family.
The Limits of School Authority
Even if a school chooses to comply with the orders to avoid the risk, it cannot make the orders enforceable against a parent who is in breach of them. For instance, if a parent arrives to collect a child outside their allotted time, a school can refuse to release the child from their care if it considers the child’s welfare would be at risk by doing so, but cannot physically restrain the parent from taking action, or start enforcement action against them.
In the same way, schools cannot:
- Compel a parent to adhere to a handover arrangement.
- Deal with ongoing disputes between parents over parenting issues.
- Unilaterally make a judgment on unclear or out-of-date orders.
The most they can do is record the incident, keep good records of any breaches they witness, and (if necessary) pass on any concerns they have to the relevant authorities. This evidence can be used later by parents or their legal representatives if the case is returned to court.
Duty of Care: Balancing Neutrality and Safety
The best interest of the school is to meet their obligations of duty of care. The need to take reasonable steps to prevent foreseeable psychological or physical harm to students and staff. This can mean implementing additional security protocols if there are indications that a parent may present a risk. For example, if there are frequent incidents of violence or threats to students or staff on campus. If a parent is frequently aggressive when picking up their child at school, or in violation of no contact orders that may have been set by the court.
Strategies could include:
- Retain copies of the court orders and make sure key staff are aware of their contents.
- Visitor management protocols to restrict visitor access to the campus.
- Remain professional and neutral in communication with both parents without engaging in conduct that could be perceived as taking sides with either parent.
- Retain reports and witness statements to make sure that, should there be further litigation, a record of what happened is in the file.
This could allow the school to manage any foreseeable risk while not making themselves enforcers of the order.
The Lawyer’s Role: Advising on Enforcement
One of the primary reasons is the limited role that schools can play in this space, which makes the role of lawyers supporting parents particularly important in relation to the enforcement of parenting orders and breaches being dealt with through the appropriate legal channels.
If an order is being contravened, legal practitioners should outline the following:
- Family Dispute Resolution (FDR): The option to resolve a breach of a parenting order through negotiation or mediation, before re-engaging with the court system.
- Contravention Applications: In the case of a serious or repeated breach, an application can be made to the Federal Circuit and Family Court of Australia to seek penalties or enforcement orders for the breach.
- Variation of Orders: If orders are no longer in a child’s best interests or they have become unworkable, orders may be varied through the courts.
The only solutions available to schools are primarily operational in nature and therefore make enforcement a matter for the court rather than schools.
The Importance of Policies and Procedures
Schools can reduce risk and ensure consistency by having clear enrolment terms and conditions and policies that reference expectations of parent behaviour and cooperation. These policies can establish communication standards, outline the school’s approach to disputes, and make clear that the school will comply with any lawful orders provided to it but will not mediate or enforce parental disagreements.
For education leaders seeking professional development, this is a key focus area within Schools Law CPD programs, where understanding the intersection of family law and school administration is essential. By building robust internal procedures, schools protect their staff, meet their duty of care, and avoid unnecessary exposure to conflict.
Schools sit in a challenging position when it comes to parenting orders: they must be aware of them and act consistently with their terms, but they are not responsible for enforcing compliance. The safest approach is one of neutrality, documentation, and communication, ensuring that risks to students and staff are managed while leaving enforcement to the courts.
Legal practitioners can support their clients by clarifying these boundaries and guiding them through the appropriate legal processes to address breaches. For those seeking to deepen their knowledge, resources such as legal cpc programs and schools law cpd points modules offer practical insights into navigating these issues with confidence.