Private school vs. public.

It’s a discussion going on in many Australian homes, especially as children reach high school age. It can become a real sticking point in property settlements when parents split up.

Can a parent force the other parent to pay for private school fees for their children if he or she is philosophically opposed?

The Federal Circuit Court, said no, in a recent family law case.

The matter of a couple appeared before Judge Terrance McGuire in Melbourne last month.  The couple has two children, aged six and 11. The parents cannot be named. They are known in court documents as Mr and Ms Barstow.

Ms Barstow argued that the father should pay “half of the cost of the children’s attendance at private schools for the duration of their education”.  She insists she wants the children educated at private schools, costing about $30,000 per child, per year.

Mr Barstow says he’s a staunch supporter of public schools and doesn’t want to pay.  He says, “his position is that he remains philosophically opposed to the children attending private schools instead of government schools”.  He did, however, concede that so as not to “obstruct” his ex-wife’s wishes, he was prepared to agree to the children attending private schools, provided she paid all the fees.  He was “at pains to express that this was not a compromise of his own values” but a gesture of goodwill.

The couple, in their early 40s, each earn around $200,000 per year. To juggle their careers and the shared parenting arrangements for their children, Mr Barstow takes a salary sacrifice to secure an extra four weeks holiday every year, while Ms Barstow employs an au pair so she can work longer hours. The family home is valued around $2 million, but they have a large mortgage for the property. 

The couple’s issues reflect those being played out in Family Courts around the country. Judge McGuire said “issues of money” had “permeated every issue of dispute” between them, and “the issue of private school fees dominated the evidence".  He added that each party was “eager to criticise the other”.

“It is not unusual for parents to differ on schools that their children will attend,” Judge McGuire said, “however, this is slightly different than the norm. The wife has a strong preference for (the children) to attend private schools. The husband’s evidence is that he is opposed,” and while he did not want to “retreat from his principles”, he was prepared to “accommodate the wife’s values".

The mother argued that the father’s “values” were “purely financially driven”.

Judge McGuire said the matter came down to whether he was prepared to force the husband to do something against his principles. As “that would involve me entering into an inappropriate and unnecessarily subjection determination as to the value of the private and public education,” Judge McGuire said he was not prepared to rule in favour of Ms Barstow.  He clarified that “there is no evidence as to what style of education would be in the best interests of the children".

In finalising the property settlement, each Barstow was awarded half of the asset pool, and Ms Barstow would be responsible for paying the children’s school fees.  She was awarded a 3% adjustment on account of the school fees plus the au pair and because Mr Barstow receives a bonus from his employer of about $30,000 each year.

Judge McGuire ruled that Ms Barstow was entitled to enrol the children at private schools next year, but in doing so, she undertook to pay the total amount of the fees due.