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Barstow & Barstow: Who pays for private school fees in the event of disagreement?

 

Barstow & Barstow [206] FCCA 2185, before McGuire J, involved the issue of whether parents should equally fund school fees in the event that the children continued to attend private schools at the wish of one parent. McGuire J found that the parent who desired a private education for the children should pay, in circumstances where both parents had sufficient means to do so.

Facts

  • The husband and wife separated after 14 years of marriage and their two children, in grade prep and grade 5 at the time of the hearing, were to spend ‘week about’ or equal time with their parents pursuant to His Honour’s decision. Both parents were professionals earning greater than $200,000 per annum.
  • The wife sought that the husband pay one half of the children’s private school fees for the duration of their education in addition to the husband’s child support obligations. The children were then at a private primary school.
  • The husband was opposed to private school education on a philosophical basis. He denied having agreed to permanent private education.

 

The intentions of separating parents with respect to their children’s education can change drastically from the mutually agreed arrangements during their marriage. The question of how substantial education costs are to be funded into the future may become fraught when the cost of two households arises. A separation may also be in the context of deteriorating financial circumstances. A parent primarily funding the children’s education at a particular school with particular cost may be less prepared to do so following separation for these and other reasons.

 

Conclusion

  • His Honour accepted that the wife was committed to a private education for the children. The husband was prepared for that to occur provided the wife paid the fees, although he proposed to share extracurricular and general costs.
  • His Honour considered it inappropriate to make a subjective determination as to the value of public or private education, where there was no objective evidence before him about what style of education would be in the best interests of the children. Indeed, the parents did not dispute whether that should occur but solely, who should pay.
  • His Honour took the view that the wife should pay, and His Honour then considered the wife’s reasonable and voluntary future expenditure (at least $60,000 per annum) when assessing ‘future needs’ factors under s 75(2) of the Family Law Act

 

Background

If parents have agreed that their child should attend a private school and one parent is primarily responsible for payment of fees, the Child Support Agency can partly reduce that parent’s liability for child support to the other parent, whether or not the other parent agrees. The paying parent must pay at least 70% of their monthly obligation on time for the Child Support Agency to consider crediting school fees against up to 30% of the obligation.

If parents have agreed that private school fees paid by one parent are wholly a form of child support, the payment can be credited after an assessment or an agreement registered with the Child Support Agency.

Such applications are often brought as part of proceedings as to overall property division. In that instance, as in Barstow, the Court will also consider the expected future payment of school fees by one or both parents when assessing any adjustment to property based on the future needs of each party.

 

Written by James Moore,  Associate

 

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