Following separation, navigating payment of private school fees can become a thorny subject. During the relationship, both parents may have “agreed” to send the children to a private school.
After separation, for various reasons, all bets are off.
It is not uncommon for a parent (usually the parent with whom the child/children do not live) to stop paying private school fees. Sometimes the reasons are legitimate financial constraints, imposed by the fact of separation and establishment of a secure household, perhaps on one salary, which is expensive. At other times the motivation is less genuine.
Will a Child Support Assessment help?
Obtaining a Child Support Assessment from Services Australia is one way of crystallising a parent’s obligation to pay child support. The annual rate of child support payable is calculated using various formulas prescribed by legislation, and based on certain assumptions. One of those assumptions is that the child/children attend a public school. Therefore, the actual cost of educating the child/children in a private school is never factored into the assessment.
What is a Departure Order?
A parent can apply to the Court to have a child support assessment changed in certain circumstances. If you already have a case before the court, it is easier to add an application for departure from the child support assessment. If you do not have a current case before the Court, you will need to engage in an administrative review of any child support assessment first.
Once you have cleared in initial hurdle of being eligible to lodge an application, the Court can be asked to consider changing the assessment to include a proportion of the private school fees if:
- There are special circumstances (meaning ‘that the facts of the case must establish something which is special or out of the ordinary’; and
- The costs of maintaining the child are significantly affected because the child is being educated in the manner that was expected by the parents.
Therefore, it is important to show that both parents initially agreed to enrol the children into the private school. The enrolment cannot be the frolic of one parent.
What is a special or out of the ordinary factor?
Whilst it is not possible to define with precision the meaning of that term, it is intended to emphasise that the Court will not interfere with the administrative formula result in the ordinary run of cases. Some examples include, the needs of a disabled child, the duty of the parent to support themselves (such as high medical costs), an unusually high cost of enabling one parent to spend time with the child (such as airfares), the child is being cared for, educated or trained in a manner that was expected by their parents and is unusually high in cost.
What is Non-Periodic Child Support?
Another option to consider is applying to the Court for:
- a third party payment; or
- a lump sum payment
In lieu of or (or in addition to) the periodic payments already being paid in accordance with any child support assessment.
You should also beware, that these applications can result in a reduction of the annual rate of child support payable.
An example of a non-periodic order for child support is as follows; In the case of Ivanovic (1996), the Husband was ordered to pay a lump sum of $20,000 for private school fees. The Judge ordered that the Husband sell a parcel of land to fund the payment, and the Wife was appointed trustee to conduct the sale.
In this case, the Husband previously agreed to the children being privately schooled. After separation, he stopped contributing to the school fees and deliberately whittled down his income to reduce the amount of any child support assessment. He also attempted to conceal his income. The Court was satisfied that he had the assets to meet the order, showing that it is not joint income that matters for child support.
Beware the child’s attitude
If a child has been at a school for a few years, give careful consideration before refusing to continue paying school fees post separation. After the dislocation of parents’ break up, removing the child from their principal environment will often alienate them from you.
A mature dialogue between lawyers for spouses can often lead to a portion of the asset pool being jointly used to fund school fees without decimating ongoing income for either spouse – child maintenance trusts/up front school fee payments and other instruments are all part of our areas of expertise to sort out this challenging part of parenting/cash flow.
Important Disclaimer: The content of this article is general in nature and for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.
