Tribunal Recommendation in Respect to Both Signature Requirement on Applications to Home Educate

By Beverley Paine

Home educators have long been frustrated by the requirement by regulatory authorities that both biological parents' must sign the application to home educate in all or some situations (such as where shared responsibility has been granted through the Family Court). They argue that as enrolment in public or private school requires only one parent's signature it makes sense that the same should apply with home education registration.

Each state and territory has different policies as to whether single or dual parental consent is required to home educate. In SA and the ACT both signatures are required except when one parent is excluded from parental responsibility by a court order. In VIC and QLD only one signature is required and if one parent is non-consenting the matter is left to the Family Court to decide. The NT has no policy in place yet. In WA only the consent of one parent is generally required but where there is disagreement the status quo is maintained, that is, the child either remains at school or continues to home educate until the Family Court resolves the dispute. In TAS and NSW (until this week) the consent of one parent is required except when there are court orders giving shared parental responsibility for education, in these circumstances the consent of both parents is needed.

The two signature requirement means that parents who no longer live with their children, have little or no contact with them, and do not pay child support (maintenance) are able to suddenly re-enter and disrupt the life of the family and thwart the other parent's attempts to provide a quality educational experience that meets the individual needs of the children. Such difficulties almost always occur in circumstances where there is a history of domestic violence. Policies that require consent of both parents may put women and children at risk. This mainly affects single parent families but has also caused problems for blended families who wish to home educate.

The only option for these families to pursue home education has been for the parent with whom the child lives to seek and obtain sole parental responsibility for the children, a lengthy and stressful process that opens old wounds and causes considerable disturbance to family life.

This week an important decision was handed down by the NSW Civil and Administrative Tribunal that recommended that applications for home education registration be "considered on their merits and not be refused because of the court order and the father's not consenting to the application".

This has implications for families across Australia with shared parenting orders who wish to home educate their children and who are required to obtain the other biological parent's signature on the application form.

The Tribunal argued that it was not the role of the regulatory authority BOSTES to "consider whether the applicant should have sole parental responsibility or unilateral responsibility to decide to apply for home schooling for the children" and that its role is "to consider an application for registration for home schooling made by a parent of a child pursuant to s 71 of the Act." It determined that BOSTES should have considered the application "taking into account relevant information, including that it had obtained from the father about why he opposed registration for home schooling, to the extent that it is relevant."

Refusing to fully consider the application on the basis of non-consent of the other parent was not accepted by the Tribunal. It determined that "if the applicant or the father disagrees with the outcome, he or she may not wish to pursue the matter further" through the Family Court. It stated that is not up to the BOSTES to determine if both parties have kept to the terms of the shared parenting orders.

While specific to this particular appeal process and this family's circumstances, the decision is being interpreted by home educators as a significant outcome and hopefully will help to change what is an untenable situation. It appears to shift the onus onto the non-consenting parent to protest any concerns through the Family Court instead of the registering body assuming authority as the arbitrator of conflicts about the education of the children between parents.

This lines up with what already happens when the principal carer enrolls a child in a school the other parent isn't happy with; it's up to that disgruntled parent to take the principal carer through the Family Court to establish new orders regarding the child's education.

The Home Education Association supported the parent who challenged the registration authority in NSW, assisting her to obtain free legal representation and providing moral and emotional support through the process. It may be possible for the dual consent process to be challenged in other Australian jurisdictions. Advice and support can be obtained from the Association: www.hea.edu.au .

References:

• http://www.caselaw.nsw.gov.au/decision/55271e1ee4b0fc828c995724?hc_location=ufi
• Home Education Association http://hea.edu.au