By Briana Kotzapavlidis

2 February 2018

In separated families, it can be difficult for parents to work out who will be responsible for payment of the children’s private school fees and expenses.

Private school expenses includes fees, levies and charges, camps, excursions, computers/devices, books, stationery, uniforms and shoes, sports uniforms and equipment, often amounting to tens of thousands of dollars (per child). Parents may have committed to privately educate their children, whilst living in an intact relationship. Obviously, it would be preferable for the children to have the continuity and stability of remaining at the same school (or attending the same school as his or her sibling/s), and in most cases it will be in the children’s best interests to do so. However, the financial strain of maintaining two homes post-separation and the pressure of achieving a financial settlement often increases the parents’ burden of meeting ongoing private school expenses.

In the event of a dispute about private school expenses (which is unable be resolved between the parents), the Court will consider whether the child or children are already being privately educated and how the parents expected the child or children to be educated. As a general rule, a parent who did not consent to a child’s enrolment at private school (or a particular private school) is unlikely to be compelled to pay those expenses. The Court will not impose a liability for private school expenses on a non-consenting parent just because they are considered to be wealthy or can afford to pay.

It is not uncommon for parents to “put their child’s name down” at one or more private schools at a very young age (perhaps as an infant) in the hope that they can (a) secure a place and (b) afford the fees at that future time. This is different to parents jointly accepting an offer of a place at a particular private school (in a specific year), which is evidence of both parties having given their consent to their child or children attending at the agreed school.

Does a joint application for future enrolment at one or more private schools evidence an expectation by both parents that their child will be privately educated? Arguably, yes. However, to fully answer this question, the Court may need evidence about other relevant factors, such as discussions between the parties, the parents’ attendance at open days and at any interview. Further dispute may arise as to the timing of the child or children’s attendance at private school; whether the child’s private education was expected to commence from ELC (early learning/kindergarten), primary school or secondary school. The associated costs will of course vary significantly in each scenario. The relevant question is what were parents’ plans for their children’s future during the relationship? Those expectations should not be changed or swayed by the fact of the separation itself or the children’s living arrangements post-separation.

If the Court is satisfied that the parents shared a mutual expectation that the child or children would be privately educated, the next question to be asked is whether this is economically feasible post-separation? If so, should both parents contribute (equally or otherwise) or should one parent be responsible for 100% of the private education costs? The relevant legislation and case law makes it clear that parents should share in the financial responsibility of caring for and educating their children, to the extent that they each have a reasonable financial capacity to do so. Each parent’s financial capacity will be assessed, taking into account to their respective incomes, reasonable and necessary expenses, assets, liabilities and financial resources.

Parents should be mindful that their child’s school may retain the right to collect and enforce outstanding private school fees (debt) as against both parents, under the terms of any joint enrolment, despite a court order or agreement having been made which imposes the obligation to pay on one parent and/or if one parent fails to pay their half share, in default of an order or agreement.

If you have any questions about private school expenses and your family’s circumstances, please contact a member of our Family Law Team.

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