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Private or Public School? Which Parent Pays in a Family Law Dispute?

Custody issues often involve disputes as to which school the children should attend. Can one parent force the other to pay half the cost of attending a private school? What if a parent disagrees with private schools? The fees can be astronomical.

These issues were agitated in the case of Barstow & Barstow [2016] FCCA 2185 (31 August 2016).

Both parents were in their 40s each having incomes of at least $200,000 per year. They had two children aged five and the other in prep school after a 14 year relationship.

The wife had a strong preference for the children to attend private schools until completion of year 12. The husband was opposed to private school education on a philosophical basis. The wife argued that the husband’s values were purely financially driven. School fees were around $55,000-$60,000 annually.

The issue was whether the father should be obliged to meet half the school fees over and above his assessed child support maintenance.

The relevant law on the matter is section 60CA of the Family Law Act 1975 which requires a court to have the best interests of the children as the paramount consideration.

The parents lacked communication and cooperation and each were quick to criticise the other about what was best for the children. They each accused the other of alcohol and drug abuse. Despite this they both asked the judge to make an order for equal shared parental responsibility.

Decision: The judge said the husband should not be responsible to pay half. However the judge did allow an adjustment to the wife on account of section 75 (2) factors by awarding her 3% more of the property pool division.

Comment: There was no evidence as to what style of education would be in the interests of the children. The judge didn’t force the husband to pay for half the school fees and if a party has a philosophical objection to private schooling then it appears that those costs will not be imposed on that party. However there may be an adjustment of the property pool to account for the extra cost in some circumstances.

For more information please contact: Evan Sarinas of Sarinas Legal.

This release is not intended as legal advice and all liability is disclaimed for reliance on it.

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