Who Decides Where a Child Goes to School After Separation

After separation, neither parent has an automatic right to decide where a child goes to school. That is true of the parent the child lives with, the parent who pays the fees and the parent whose preferred school the child already attends. The court asks one question: which arrangement best promotes the child's best interests?

School disputes are among the hardest parenting conflicts after separation, and they are often urgent. A child may be approaching Prep, moving to secondary school or facing a proposed change mid-stream. One parent may favour a private school while the other prefers the local public school. One may want to preserve an existing enrolment while the other says the travel is impractical. Often the disagreement is less about the schools than about competing expectations, finances or an inability to agree.

The central principle: no parent has an automatic right to choose the school because the child lives mainly with them, because they pay the fees or because the child has attended a particular school before. The question is always what arrangement best promotes the child's interests.

The courts have been working through these disputes for decades. The legislative framework has changed, but the leading cases still show how judges weigh the child's primary residence, travel time, parental convenience, continuity, school fees, the child's views and the practical consequences of each proposal.

1. The legal framework: schooling is a major long-term issue

Under the Family Law Act 1975 (Cth), education is a "major long-term issue", alongside decisions such as medical treatment and religious upbringing. When parents cannot agree, the Federal Circuit and Family Court of Australia can decide.

The amendments that commenced on 6 May 2024 changed how that decision-making is framed:

• The presumption of equal shared parental responsibility was repealed. The court no longer starts from the premise that joint decision-making is in a child's best interests.

• Where it is safe to do so, parents are encouraged to consult each other about major long-term issues (s 61CA).

• Where the court orders joint decision-making, the parents must consult and make a genuine effort to reach a joint decision (s 61DAA). The court can also allocate decision-making on a particular issue, such as schooling, to one parent.

• Joint decision-making never gives either parent a veto. If parents are deadlocked, the court can determine the issue.

The child's best interests are the paramount consideration (s 60CA), assessed under s 60CC. Since May 2024, s 60CC has set out a single list of considerations, with the safety of the child and their carers listed first, in place of the former "primary" and "additional" considerations.

The cases discussed below were decided under earlier versions of the Act, some while the presumption of equal shared parental responsibility still applied. Their reasoning remains useful because the central question has not changed. Judges applying the amended s 60CC, such as in Medina & Joon (2024) and Dunstan & Carleton (2026), still draw on Re G and Bilz & Breugelman, although the statutory labels used in the older cases no longer appear in the legislation.

In schooling disputes, the relevant considerations commonly include:

• The child's developmental, psychological, emotional and educational needs.

• The child's existing schooling and the likely effect of changing schools.

• The child's views, having regard to their age and maturity.

• The practical consequences of travelling to and from each proposed school.

• Each parent's capacity to facilitate school attendance.

• The effect of each proposal on the child's relationships with parents and siblings.

• The financial implications of each proposal.

• Any family violence or other safety concerns.

Medina & Joon summarises the Re G factors as the child's views, any prior agreement about schooling, any change to existing arrangements, siblings' schooling, anxiety from changing peer groups, the parents' views on the effect of change, travel time and the cost of education. The cases show that these are weighed together. No single factor decides the outcome.

2. Re G: Children's Schooling [2000] FamCA 462: the foundational authority

Re G: Children's Schooling is still treated as the leading appellate authority on schooling disputes.

The case concerned two boys, aged about eight and ten. Under consent orders the parents had joint responsibility for long-term decisions, the boys lived with their mother, and she was responsible for their day-to-day care. The boys had attended the same private school since pre-school, a school the parents had agreed on as a compromise, while the mother had always wanted them at another private school. Both were church-based, co-educational schools, although the proposed school's fees were about $10,000 a year higher. The boys were doing well where they were and said they wished to stay. The proposed school was much closer to the mother's home, she planned to retrain or return to work, and a family report supported her view that the boys would cope with the move. The trial judge allowed the change and the father appealed.

Does the parent the children live with get to choose?

The trial judge's reasoning had closely followed Newbery v Newbery (1977) FLC 90-205, decided when a sole custody order was said to carry the right to choose the child's school. The Full Court held that this reasoning should not be followed. Newbery rested on a notion of parental rights, and since the 1995 reforms parenthood has been treated as a source of duties and responsibilities rather than proprietary rights. Living mainly with one parent gives no entitlement to choose the school.

The child's best interests, not the preference of the parent the child lives with, decide the outcome.

That did not make the practical circumstances irrelevant. The Full Court said there is no presumption in favour of the parent the children live with, but the reality of where they live still counts. It is proper to consider the effect on the parent who carries the day-to-day responsibilities, because that parent should not be saddled with more irksome and unnecessary restraints than those commitments require. Here the proposed school was much closer to the mother's home and her return to work or retraining was a legitimate consideration, although her convenience was not paramount.

The boys' wish to stay was relevant but not decisive. Unless a child is actively unhappy at school, it is common to want to stay, and in schooling cases a child's wishes carry less weight than in a dispute about which parent the child lives with. The Full Court found the trial judge had erred in following Newbery, but re-exercised the discretion itself and reached the same result: the mother could enrol the boys at the new school. The formal order was therefore to dismiss the appeal. The Full Court stressed that it was not assessing the relative merits of the two schools.

The principle from Re G

The lesson is not that the parent with the primary care ordinarily wins. The court must make a genuine best-interests assessment that takes account of the practical circumstances in which the child's schooling will happen. A child's established school and stated wishes are relevant but not necessarily decisive. A parent's practical responsibilities can properly influence the result without becoming the legal test.

3. Eden & Eden-Proust [2011] FamCAFC 138: parental convenience is a relevant consideration

Eden & Eden-Proust matters most where the competing schools sit close to different parents' homes.

The parties' six-year-old son spent significant time with both parents but lived with his mother for most school weekdays. The father preferred a school about 500 metres from his home. The mother preferred a school about 1.9 kilometres from hers. The two schools were about 5.7 and 5.1 kilometres respectively from the other parent's home. The magistrate ordered that the boy attend the school nearer the mother's home, and the father appealed.

The child's ordinary school routine

Justice Thackray, sitting alone on appeal, held that the magistrate had erred by giving no weight to the father's convenience and the financial implications for him. Those were legitimate considerations, because decisions in intact families routinely take parents' convenience and finances into account, and the children's interests cannot be viewed in isolation from the stability of their parents. Convenience did not take primacy over the child's interests. Justice Thackray then re-determined the matter himself and reached the same result, so the appeal was dismissed.

The overall inconvenience to each parent was roughly equal. The most significant factor was that the child spent most weekdays with his mother, and it makes sense for a child to attend the school closest to the home where he spends the majority of his weekdays, because that is generally convenient for the child and, more significantly, for those who must get him to and from school.

The principle from Eden & Eden-Proust

Where a child spends most school weekdays with one parent, that parent's school-transport burden can carry significant weight.

This is not a presumption in favour of the school nearest the primary carer's home. It does give a sound legal basis for looking at where the child ordinarily lives, how many school mornings each parent manages and how heavy the journey is between home and school.

More recent decisions, many of them interim, follow the same logic. In Allinson & Eadie [2020] FCCA 3558, both schools could meet the child's needs, and the court said the most significant aspect was going to school from the home where he lived most of the time. In Medina & Joon [2024] FedCFamC2F 1647, soon after the parents separated, the court kept three children at the school where they were thriving rather than move them to untested schools. There was no independent evidence, such as a family report, about the strength of the children's expectations of moving.

A further example is Watling & Watling [2022] FedCFamC2F 13, where the court authorised the mother to enrol the children at the school nearer her home. It reasoned that the convenience of a school for the parent who will do more of the daily school runs is among the more important considerations, and a court-appointed child dispute counsellor had recommended that school.

In Chamness & Hearle [2021] FCCA 26, the court preferred the school near the father's new home, where the child lived, over a round trip of about an hour and 20 minutes to her old school. It also placed significant weight on annual fees of about $4,000 against about $160, and on the parents' limited capacity to pay, even though the father had decided on the new school unilaterally.

4. Bilz & Breugelman [2013] FamCA 578: private school versus local public school

Bilz & Breugelman shows how the court approaches a dispute between a faith-based private school and the local public school.

The parents of a young girl had separated in 2010. The mother was deeply religious and the father was not. The father had started proceedings about schooling in November 2012. Despite that unresolved dispute, the mother enrolled their daughter at a Christian school two days before the 2013 school year began. The father argued the child should move to a public school. The mother argued she should stay, because she was progressing well and the school shared her values.

Justice Austin ordered that the child be withdrawn from the Christian school at the end of 2013 and attend the public school nearest the mother's home from the start of 2014. The court also ordered the parents to take reasonable steps to ensure she attended any scripture classes the public school offered, as the mother wanted and the father accepted. The order was for the public school nearest the mother, not the school equidistant between the homes that the father had proposed.

Why the court went that way

• Proximity. The child was to spend ten nights a fortnight with her mother. The court noted that a child ordinarily benefits from attending a school close to where she lives.

• Local friendships. The children of the mother's neighbours attended the public school, and the family consultant gave evidence that local friendships can matter to a child's socialisation.

• Fees and conflict. Both parents were unemployed. The Christian school's fees were modest, about $3,000 a year rising to about $4,500, but the parents did not have the resources to reliably meet them, and the court was concerned that financial pressure could feed further conflict between parents who already had a history of it.

• Both parents' values. Both parents had equal shared parental responsibility. The court considered it as important for the child to receive instruction in her father's secular values as in her mother's religious beliefs, and said the child should have some respite from constant instruction in devout Christianity. Handovers were set for Sunday mornings so she could still attend church with her mother.

Principles Justice Austin drew from the authorities

Justice Austin reviewed Re G, Eden & Eden-Proust and other authorities and drew out these propositions (at [81]–[83]):

• There is no blanket presumption in favour of the residential parent's view.

• Where both competing schools are prima facie satisfactory, the court should not assess their relative merits.

• Ordinarily it is in a child's best interests to attend a school close to where they live. The court may consider the greater effect on the resident parent, but the convenience of the other parent is not ignored.

• The child's views are relevant but usually not determinative. Unless a child is actively unhappy at school, it is common for a child to want to stay put.

The principle from Bilz & Breugelman

A private school is not presumed better because it charges fees, offers religious education or was chosen earlier.

There is equally no presumption in favour of a public school. The court asks which proposal best meets this particular child's needs, on the evidence about the family's actual circumstances. The case also shows that faith need not be treated as all or nothing: a child can attend a public school and still have religious instruction available.

5. What the child wants, and how the court finds out

A child's views are one of the considerations listed in s 60CC. They are relevant, but they are not a vote. In Re G the boys wanted to stay at their school and the change was still permitted. The Full Court explained that children's wishes carry less weight in schooling decisions than in disputes about which parent a child lives with, because unless a child is actively unhappy it is common to want to stay where they are. Justice Austin applied the same reasoning in Bilz & Breugelman.

The weight a court gives a child's views depends on the child's age, maturity and understanding, and on how the views were formed. There is no fixed age at which a child's wishes become binding. A child's wish is more persuasive when the reasons are the child's own and tie to real concerns, such as bullying or a specific learning need, than when it is simply a wish for things to stay the same.

A recent example is Dunstan & Carleton (No 2) [2026] FedCFamC2F 91, a final hearing under the amended Act. A 12-year-old wanted a private, single-sex Catholic school, but the court declined to give her views pre-eminent weight. A list of pros and cons she gave the court's child expert had been prepared at her father's encouragement, and the court saw a real risk that this had tainted the interview. The court ordered her to attend the public school her brother attended, partly to protect the sibling relationship and keep both parents involved in her schooling.

A child cannot be required to express a view (s 60CE). When the court wants to know what a child thinks, it can use:

• A family report from a court family consultant, who must ordinarily ascertain and report the child's views (s 62G).

• An Independent Children's Lawyer (ICL), appointed to represent the child's best interests rather than to take the child's instructions. Since 6 May 2024 an ICL generally must meet the child, subject to exceptions such as a very young child.

For parents, the practical point is to leave the child out of the argument. Asking a child to choose between your school and the other parent's school, or to tell the court what they want, can distress the child and can undermine the weight their views carry. Specialist professionals are far better placed to hear a child's voice safely.

6. When family violence is part of the picture

Where there is family violence, a schooling dispute is a safety question first. Since 6 May 2024, s 60CC lists first the arrangements that best protect the safety of the child and of the people who care for them. The ordinary school-selection factors operate inside that frame.

In practice, family violence can affect a schooling dispute in several ways:

• Decision-making. The duty to consult assumes both parents can safely deal with each other. The Act encourages consultation only where it is safe, and the court can allocate decision-making about schooling to one parent rather than order joint decision-making.

• School location. A school's proximity to the other parent's home or workplace can be a safety issue, as can the practical ease of getting to and from it.

• Access and information. Who can attend the school, who receives its communications and how pick-up and drop-off work may all need to be considered.

• Handovers. School is often used as a handover point precisely because it limits direct contact between parents, so the school's routines and location can matter to the parenting arrangements as a whole.

Disagreement alone is not family violence. In Dunstan & Carleton (No 2), the mother argued that the father's persistence in seeking a private Catholic school was coercive and controlling behaviour. The court could not make that finding on the evidence, observing that the disagreement must derive from, and be informed by, its form, intensity, context and impact on a person.

Schools generally expect to be given a copy of any relevant orders, but they are not the place to resolve or enforce a family dispute.

If family violence is a concern, raise it with your lawyer at the first appointment. Consultation steps and school logistics can be designed around safety, but the court needs to be told and needs evidence. If you or your child are in immediate danger, call 000. For confidential counselling and support, 1800RESPECT is available on 1800 737 732.

7. Practical steps if you and your co-parent disagree

1. Start with the child, not the school's reputation, and keep an open mind. Courts avoid ranking schools by prestige or results. They look at how each option will affect the child's daily life: continuity, routines, friendships and logistics. In White & Kenney [2022] FedCFamC2F 1633, the judge preferred the mother's proposal partly because messages showed the father had rejected her school on religious grounds before looking at the alternatives.

2. Gather practical evidence. Work out the real morning and afternoon travel for each household, the full cost (fees, uniforms, transport, before- and after-school care), where siblings and friends are, and any learning, health or wellbeing needs. Evidence about practicalities, affordability and stability tends to carry more weight than a general claim that one school is better.

3. Avoid enrolling or withdrawing unilaterally. Acting before a dispute is resolved usually hardens positions and can breach a consultation obligation in existing orders. In Bilz & Breugelman the mother enrolled the child two days before the school year began, and the court ultimately ordered a different school. Acting alone is not always fatal: in Chamness & Hearle the court preferred the father's choice despite his unilateral decision, because of cost and travel. But in Watling & Watling the judge said neither parent is entitled to decide the school without reference to the other. If you have a safety reason to act urgently, get advice first.

4. Try family dispute resolution. Before applying for parenting orders, parents must make a genuine effort at family dispute resolution and obtain a s 60I certificate, unless an exception applies, such as family violence, child abuse or urgency. A neutral mediator can help each parent test assumptions and refocus on the child's needs.

5. Get independent input. A teacher, school counsellor or allied health professional can give a view on the child's needs that is not coloured by the parents' positions.

6. Build a decision-making process into your agreement or orders. Useful terms include timelines for choosing a school, consultation steps, who handles enrolment, how fees are shared and what happens if you still cannot agree, such as mediation or a family report before returning to court.

7. Act early. Prep and high-school transitions run to fixed enrolment calendars, so an unresolved dispute can become urgent quickly. Courts also tend not to decide a secondary school years ahead for a young child, so the timing of an application matters. Getting legal advice early leaves more options open.

Conclusion

After separation, no parent has the final say on a child's school. The cases from Re G to Bilz & Breugelman point the same way: the court applies no presumption in favour of the parent the child lives with, the private school or the public school, and it looks at what each arrangement will mean for this child's daily life, stability, relationships and safety.

The strongest position is rarely "my school is better". It is a clear, evidence-based account of the child's needs, a realistic plan for travel and cost, and a record of genuine efforts to reach agreement.

If you are facing a dispute about your child's schooling, early advice can make a real difference. Contact Locke Family Law to talk through your situation.

This article is general information only and is not legal advice. The law is stated as at 4 November 2026. Please obtain advice about your own circumstances.