Where the court is required to make family law parenting orders, a parent may be seeking orders that children attend private school. Questions may arise as to who pays the private school fees.
An application may be made to the Court for departure from an administrative assessment of child support under section 117 of the Child Support (Assessment) Act 1989.
Where an application is made to a court having jurisdiction under that Act for a departure order in relation to a child support assessment (for example, for contribution or payment by a parent towards private school fees), the Court may make an order if it is satisfied that one or more of the grounds for making a departure orders are satisfied and that it would be just and equitable as regards the child, the child’s carer entitled to child support and the liable parent and otherwise proper to make the order.
In the recent decision of the Family Court of Australia in Stewart & Stewart  FamCAFC 67, the court considered family law orders that had been made by a trial judge in a case where the mother had initially sought orders providing for the children to attend specific private schools and for the mother to have sole parental responsibility for the children’s extra-curricular activities. The mother’s application did not address who would bear the financial responsibility for private school fees or other costs associated with the children’s education.
The Court found that the mother had failed to show that the parents could afford the private school fees and other school costs at the private schools that the mother proposed that the children attend. The Court found that the earlier orders of the trial judge should stand.
Those orders made by the trial judge provided that unless otherwise agreed in writing between the parents, the children were to attend a certain state high school or if they were not accepted for enrolment at that school, a state high school in their residential catchment area.
The mother’s case has initially included an application to depart from an administrative assessment of child support under section 117 of the Child Support (Assessment) Act 1989 that the father would be responsible for payment of 60% of the children’s costs to attend private schools (and that the mother would be responsible for the balance 40% of those costs). The court assessed that attendance of the children at those private school would involve a total cost of some $50,000 per annum and over the whole period of high school, a total cost for both children of some $250,000 to $300,000 for tuition fees alone, not taking into account other school related costs.
The trial judge had dismissed the mother’s child support departure application but the mother did not appeal that dismissal.
Apart from that application which was dismissed, the mother’s application for orders did not address funding of school fees. The mother did not amend her application to assert her willingness to pay all of the children’s schooling costs.
A large part of the father’s case was that the parties could not afford the private school fees and other schooling costs at the private schools proposed by the mother for the children to attend.
The appeal court found that the trial judge was not in error and confirmed the family court orders, in this case, parenting orders, made by the trial judge. There was insufficient evidence before the court as to how the private school fees were to be afforded.
The appeal was dismissed.