Some Educational Issues in Recent Family Law Matters: Australia in Microcosm

In an earlier comment, 1I noted 2 that global prediction as to how Courts would resolve doctrinal disputes between parents and parents and the State would not be an easy matter. It should be said that the cases which were there discussed were very much products of their time and, as will be seen, it is as products of their time that the cases which will be discussed in this article must be considered. In the earlier article the cases which were discussed were, first, In the Marriage of Bishop, 3which involved the question of whether a child should be permitted, as she wished, to study ballet rather than to pursue more orthodox academic education through a private school. Second, In the Marriage of Newberry, 4a case which may still be influential today, where the issue involved was whether which public school a child attended was really a matter for the Courts. 5 Lastly, there was the bizarre decision of the English Court of Appeal in Re DJMS (A Minor), 6where parents had developed an implacable opposition to the system of education which operated where they lived and were hoping that the local authority would pay for the child to be educated at private schools. Those were very much the kind of issue which was current at the time they were decided or the subject of comment. As will be seen, the cases to be discussed were represent on Australia which has different priorities and perceives itself differently. Significant amendment to the Family Law Act 1975 since Bishop was decided 7 has of itself contributed to those changes of itself. Put another way, the cases involving education in family law matters have arisen in a different context from that of thirty years ago necessarily leading to different emphases and different relationships with various socio-cultural phenomena. These matters are immediately illustrated by the first case to be discussed, that of Re G: children’s Schooling. 8 That case involved an appeal against orders which permitted the wife to enroll the parties’ sons (aged ten and eight years respectively) as day students in a particular private school (referred to as ‘School B’). In consequence of consent orders made in 1997, the parties were jointly responsible for the long term care, welfare and development of the children. The wife was solely responsible for their day-to-day care, welfare and development; the children reside with her and the husband had contact. The children had been educated, since pre-school at another private school (‘School A’). The wife, it appeared, had always wished the children attend School B, but School A had been agreed upon by the parents as a compromise. The competing applications as to which school the children should attend, were heard at first instance on the basis that matters involving the respective qualities of the schools should be presented by way of the parents’ opinions. In the event, the judge at first instance granted the wife’s application and, in so doing, took some seven matters into account: first, that the children had lived constantly with their mother. Frank Bates University of Newcastle, New South Wales, Australia