The cost of private school fees can be a substantial expense for parents. Whether a child should be privately educated and, if so, who pays the cost of private school fees can be the subject of disagreement between separated parents.
A separated parent of a child does not have to contribute to the cost of privately educating the child unless that parent has agreed for the child to be privately educated.
The Child Support (Assessment) Act 1989 sets out a formula for calculating the Child Support that is payable by one parent to another parent. The assessed amount is not however intended to cover the cost of educating a child at a private school. How then can a parent seek a contribution from the other parent to the cost of private school fees?
A parent can apply to the court to depart from an administrative assessment of child support to seek that the other parent contribute to the payment of private school fees for a child if the court is satisfied:
- That the costs of maintaining the child are significantly affected because the child is being educated in the manner that was expected by his/her parents; and
- It would be just and equitable and otherwise proper to make the order.
In the 1986 case of Mee v Ferguson three principles emerged in relation to the payment of private school fees by parents:
- Where the “non custodian” parent has agreed to the child attending a private school, he/she is liable to contribute to the school fees to the extent that he/she has a reasonable financial capacity to do so.
- Where the “non custodian” parent has not agreed to the child attending a private school, he/she is not liable to contribute to the fees unless there are reasons relating to the child’s welfare which dictate attendance at the private school. In that case, the non custodian parent is liable to contribute to the extent that he/she has reasonable financial capacity to do so;
- The mere fact that a “non custodian” parent can afford the fees is not in itself a reason for imposing that liability.
The agreement by the other parent to the child being privately educated is key. To show that the other parent has agreed to the child attending a private school, it is important to have evidence that the other parent has agreed, such as an application or enrolment for the private school signed by the parent from whom the contribution is sought.
Parents may agree to enter into a Binding Child Support Agreement that sets out the contribution that each parent is to make towards the payment of private school costs such as fees, levies, books, uniforms, camps/excursions and extra-curricular activities. Such agreements are binding and provide each of the parents with certainty about their obligations with respect to the payment of such costs. Prior to entering into a Binding Child Support Agreement each parent is required to obtain independent legal advice.
If you wish to discuss the payment of private school fees and your family’s circumstances in more detail, please contact one of our experienced lawyers on (03) 8393 0144.