Do schools and childcare have to follow parenting orders?

An intersection of Family Law and Workplace Law

Parenting orders under the Family Law Act 1975 (Cth) (“the Act”) determine post separation living arrangements for a child, allocation of parental responsibility, and may include orders about education, such as which school a child/ren should attend. Courts have emphasised that parents must take positive action to ensure children spend time with or live with each parent in accordance with parenting orders. But what role does a school have, and what must a school do for both employees and students when addressing these situations?

It is common for sealed parenting orders to be provided to the child/rens school or childcare. In doing so, the question arises as to the school’s role in ensuring compliance with those orders. In this article, we refer to “schools”, in the broad sense of the word to include preschool and daycare facilities as well.

Can schools enforce Family Law orders?

Schools are not bound by any parenting orders issued with respect to students in attendance.

While it is advisable for a child's school to be made aware of the parenting order, schools do not have any duty or legal obligation to enforce those orders.

If, for example, a parent approaches the school in contravention of a parenting order, the school must address the situation as it sees fit, rather than being compelled to enforce the terms of the order directly.

In the recent case of Addyson v Baylee [2024] FedCFamC1F164, Justice Baumann clearly explains at paragraph 20:

“… the child's school and medical and health professionals should be aware of the order. They, of course, have no duty or obligations in any way to enforce the order, and if the school was, for example, notwithstanding the order I make today for the mother to have sole parental responsibility, approached by the father, then they will need to deal with any such approach as they see fit.”

[emphasis added]

Who is bound by the Family Law Orders?

Parenting orders are binding only on the people named in the order, usually the child’s parents or guardians.

The responsibility to comply with and facilitate compliance with parenting orders falls on individuals named in the order, who must take positive action to ensure the orders are followed. 

Schools, teachers and daycare providers are not parties to these orders and are not legally required to enforce them.

The obligation imposed on parents subject to family law orders is explained by Justice Cronin in the case of Ackersley v Rialto [2009] FamCA 817 at paragraph 102 as follows:

"… You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders. For example where the order states your children are to spend time with another party, you must not only ensure that the children are available but must also positively encourage them to go and do so. .…"

What obligations are imposed on schools dealing with separated parents?

Schools may become involved in the practical implementation of parenting orders (such as by following court directions on enrolment, information sharing, or contact arrangements), but there is no positive statutory obligation on schools arising directly from parenting orders.

If a parenting order requires a child to attend a particular school, the school may be required to enrol the child accordingly, but there is no express legislative or judicial authority that imposes broader legal duties on schools in relation to parenting orders.

The main obligation for schools is to be aware of and respect the terms of any parenting orders they are notified about. However, statutory enforcement and compliance rests with the parties to the order and the court.

Lawful and reasonable directions and work, health & safety

The practical implementation of parenting orders must also comply with a school’s other duties of care. A school needs to not only inform its employees of the existence of parenting orders but also consider what it may direct an employee to do if it appears that a parent may be in breach of such orders, while still ensuring the safety of staff and children as far as is reasonably practicable.

In deciding on what a school may “see fit” in respect of parental orders, the school must keep in mind the following:

• Any direction to an employee must be lawful, in that it must not be in contravention of any legal instrument and otherwise accords with the employment agreement or relationship;

• Any direction to an employee must be reasonable, which will depend on circumstances including the nature of the direction as well as the employee the direction is given to (and any other relevant consideration); and

• The school has an overriding obligation to ensure the health and safety of their employees while at work (see, for example, section 19 of the Work Health and Safety Act 2011 (NSW), although this can also be balanced with workers’ own obligations under this legislation to comply, so far as they are reasonably able, with any reasonable instruction, policy, or procedure of their employer.

In the example given above of a parent approaching a school in contravention of a parenting order, the school may have given a direction to the teacher of the relevant child to approach the parent and request that they do not attend, in compliance with the terms of the order.

While this direction may be lawful, it may not be reasonable, depending on matters such as the age, seniority or gender of the teacher, the demeanor of the parent and the other competing duties and responsibilities of the teacher. The direction may also place the health & safety of the teacher at risk, which, of course, is another matter that can be taken into account in determining the reasonableness of the direction.

Key takeaways for parents and educators

• Parenting orders are legal documents that apply to the people named in them, usually parents or guardians.

• Schools and childcare centres are not legally required to enforce family law orders.

• Parents must comply with parenting orders by ensuring the children’s time arrangements and schooling arrangements are accordance with the orders. This means positively encouraging the child/ren to follow court ordered arrangements.

• Schools should be informed of any relevant orders, but their main responsibility is to act in the child’s best interests and ensure the health and safety of their employees.

• If a school wishes to direct its employees to implement or address parenting orders, the direction must be lawful, reasonable, and ensure that the health and safety of the employee is paramount.

• If a dispute or safety concern arises, parents should seek legal advice or court assistance and not expect the school or its employees to act as enforcers of the parenting orders.

 Authors: Madeline Elliott & Hannah Lawson

Supporting partners: Fiona Hoad & Darren Gardner

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.