Court rules on parents’ dispute about sending their children to private schools

She was set on sending her children to expensive private schools. There was just one problem – she and her former husband could not afford the $50,000 in annual fees.

The parents, given the court-ordered pseudonyms Mr and Ms Stewart, could not agree on where their primary school-aged son and daughter should go to high school.

Ms Stewart sought a court order that the children be enrolled in specific single-sex private schools, with the son attending the father and grandfather’s alma mater.

As the Court heard last year, if both children attended private schools the tuition fees alone would be $50,000 a year. Even without taking account of the extra costs of a private education and probable fee increases, it would cost up to $300,000 to put the children through school.


The court found the parents could not afford $50,000 in annual fees to send their children to private schools. Photo: Louie Douvis

Ms Stewart sought a court order that the children be enrolled in specific single-sex private schools, with the son attending the father and grandfather’s alma mater.

As the Federal Circuit Court heard last year, if both children attended private schools the tuition fees alone would be $50,000 a year. Even without taking account of the extra costs of a private education and probable fee increases, it would cost up to $300,000 to put the children through school.

Mr Stewart opposed his former wife’s application, saying they simply could not afford it.

She, however, contended that he “should be able to pay 60 per cent of those fees if he reduces the amount of money that he spends on his wife’s three children on things such as overseas holidays, the latest electronics and clothing etc”.
In an affidavit, Ms Stewart said her weekly income was $370 from social security and $491 in child support.
She said while she agreed “that I do not earn a large sum”, she was prepared to sell assets – including a $1.35 million property – to fund the children’s schooling.
However, she also had a $64,523 HECS debt and owed $130,000 to a family member.

Judge Stephen Coates found Ms Stewart had not established that the likely cost of private schooling would be affordable.

“The mother said she could afford 40 per cent of the fees, yet on her income, I do not see she has proven her case,” he said.

He ruled that the children should attend a government high school, saying they would not be disadvantaged as the state provides “a capable education system”.

The judge said the Stewarts’ son would cope with not going to the private school “if the mother responsibly handles the situation for the child, even though such an order would be a great disappointment to her”. Indeed, he said, it “may be more of a disappointment to her than to the child”.

Ms Stewart appealed against the court’s decision, claiming Judge Coates failed to give adequate reasons and had misapprehended her case – and that she was willing to pay all the school fees herself, despite being unemployed and spending $290 each week more than she received.

The Family Court, sitting in Brisbane, this month dismissed Ms Stewart’s appeal, saying there was “no merit in any of the grounds”.

Chief Justice Diana Bryant, and Justices Murray Aldridge and Michael Kent, found there was no substance to arguments “that the trial judge was in error in his findings as to financial capacity or, perhaps more accurately, financial incapacity, for the probable future and ongoing costs of the mother’s proposed schools”.

They ordered Ms Stewart to pay the costs of the failed appeal.

Related Family Law Judgments

You’d be wise to make a Will – and it’s cheap and relatively easy to draw one up yourself

must-make-a-willHalf of all Australians die without a will, according to the Australian Securities and Investments Commission, meaning the law decides where your assets go, potentially favouring relatives you resent.

Making a will is vital, but can cost from $150 to thousands of dollars, if you use professional channels. Here are some tips on how to do it yourself, with intense attention to detail.

  1. Harness online resources

Study Will sample wills on the internet to strengthen your grasp of how to structure yours. One example is Slater & Gordon’s amusing Fred Flintstone model. Then there’s Peter Evans and Associates’ straight take.

The template provided by a do-it-yourself downloadable will kit costing between $20 and $300 can help, if you read the disclaimers and remember that one size does not fit all, experts say.

  1. Be picky about the key players

Find the most objective witnesses possible: those with the least to inherit, experts say. The executor – the person who carries out the terms of your will – should be someone set to outlive you: a much younger person.

  1. Sound out relatives

Discuss plans with your family – even seek their input, says estate planner Bruce Cameron. “It doesn’t hurt to know ahead of time which of your family members wants your collection of garden gnomes, grandma’s china, or the silver tea service,” Cameron says. Lack of discussion may spark entitlement feuding, he adds.

  1. Keep it explicit

Be exact, says Cameron. Instead of identifying heirs by name alone, include details such as their birth date, address and relationship to you.

Likewise, do not just denote your home by its street address – include its legal description on the deed. And, instead of just listing a charity by name, give detailed contact information.

  1. Insert stopgaps

State where your assets will go if heirs and beneficiaries prove unavailable, unable or unwilling to claim their inheritance, says Cameron. For instance, the beneficiary might “predecease” you. Or, if a beneficiary is a charity, it might have stopped operating.

  1. Don’t preach

Resist the urge to hit back from the grave. A clause saying that someone will only inherit if they quit gambling and drinking and wed someone at least 180cm tall and five years their senior may spark court battles rather than reform behaviour, says Cameron.

  1. Keep tweaking

Don’t think you can just write your will and relax, says Cameron. Regularly update and rewrite your will, reviewing it upon changes such as the birth or adoption of a child, divorce or retirement.

Revision may also be necessary when you open a new bank account, buy a car or move house, he says.

  1. Know the neighbourhood

Mug up on your state’s inheritance rules, because they vary depending on your location, warns lawyer Shane Fischer.

The Government’s Wills and power of attorney” page offers state-specific information.

Remember that in Queensland, New South Wales and Tasmania, on the day someone divorces, any previous will is revoked, according to RP Emery and Associates.

  1. Exclude the estranged

Don’t bequeath peanuts to disenfranchised friends and family. For instance, forget leaving a dollar to the daughter you have not talked to in 10 years, because she could cause havoc with your estate by challenging your will, Fischer warns.

If you want to disinherit the person, write: “I do not leave anything for ‘X’, my daughter. This is intentional,” Fischer says.

  1. Pinpoint the paperwork

Tell a close contact the location of your will and final wishes statement, Fischer says. Otherwise, your heirs may pick your home apart in search of the information. If they fail, you may get cremated when you should be buried.

Support available in the Community – Contact Details

community-support contact detailsMental Health Line

  • 1800 011 511 (24 hour)


  • 13 11 14 (24 hour)

Suicide Call Back Service

  • 1300 659 467 (24 hour)

Alcohol and Drug Information Service

  • 9361-8000
  • 1800 422 599 (Rural)

Family Drug Support Australia

  • 1300 368 186

Child Protection Helpline

  • 132 111 (24 hour/7 days)

Elder Abuse Hotline

  • 1800 628 221 –Information/Advice/Referrals

Kids Helpline

  • 1800 551 800

Child Abuse Prevention Service

  • 1800 688 009 – 24 hour crisis support for parents


  • 1300 789 978

Carers Australia

  • 1800 242 636

State Emergency Service

  • 13 25 00

National Sexual Assault, Domestic and Family Violence Counselling Service

  • 1800 Respect (1800 737 732)
  • 1800 656 463

NSW Victims of Support – Victims Access Line

  • 1800 633 063 – The VAL is the entry point to victims services

Poisons Information Centre

  • 13 11 26

Police Assistant Line

  • 13 14 44

Rape Crisis Centre

  • 1800 424 017

SIDS and KIDS –24/7 Bereavement Support

  • 1300 308 307

Telephone (Immediate) Interpreting Service (TIS)

  • 13 14 50

Family Court Should Be Last Resort: Attorney-General


Attorney-General George Brandis

BITTER custody battles dragging on for years could be cut short by local magistrates under a government plan to spare families “emotional trauma’’ in the Family Court.

Federal Attorney-General George Brandis called on judges and magistrates yesterday to start ruling on custody and property disputes to take pressure off the overloaded family and federal circuit courts.

Senator Brandis described the system as overly combative in an exclusive interview with The Daily Telegraph to mark the biggest shake-up of family law since the introduction of no-fault divorce in 1975.

He said the Family Court should be a “last resort’’, with greater use of state courts, arbitration and mediation to settle custody and property disputes.

“The litigation model is not always the best model,’’ he said.

“Every story in the Family Court is a bad story — there are no good stories. We’ve got to design the system to ensure the disputes finish on fair terms as early as possible, rather than being dragged on with delays, expense and trauma.

“We want people to be able to get on with their lives.’’

Mr Brandis also called for “consistency’’ in the way judges apply the rules of evidence in family law cases to stop warring spouses lying in court.

“The special rules limiting the reception of evidence in the Family Court (from parties with) invented allegations need to be applied consistently,’’ he said.

“People in the family law system are … seeking to protect children, to preserve dignity when they feel they’ve been abused. If they’re negatively motivated, they may be seeking to avenge themselves.’’

Mr Brandis said abused children and domestic violence victims were forced to give evidence twice, to state and federal courts. He said state judges and magistrates hearing domestic violence or child abuse cases should rule on custody at the same time, instead of forcing warring parents into the federal courts.

“(I want to) encourage state courts to exercise jurisdiction under the Family Law Act — which they can do, but they don’t,’’ he said.

“There should be less overlap and less double-handling.”

The Turnbull government has given the Australian Law Reform Commission 18 months to find ways to modernise the family law system.

Mr Brandis said he wants “the smoothest, most cost-effective, least traumatic, most expeditious way’’ to resolve divorce and custody disputes.

The government is spending $12.7 million to trial a “lawyer-free’’ arbitration system in Sydney, with the first “parenting management hearings’’ to be held in Parramatta this year.

Teams of psychologists, social workers and family law experts will help parents resolve custody issues in the best interests of the children — without using lawyers.

Baby-boomer parents push prenups to keep property in the family

pre-nuptial agreement“We would like to give you $700,000 to help you to buy a house, but we want you to sign an agreement to make sure that if something happens to you and [insert name of partner] the money stays with you.”

Thanks to the unprecedented levels of wealth accumulated by baby boomers and the desire to help their offspring into an increasingly exorbitant property market, conversations similar to this are being repeated around Australia.

Family lawyers have reported a sharp increase in demand for prenups, or binding financial agreements, which state how assets, liabilities and financial resources will be divided in the event of a relationship breakdown.

“There is an absolute trend in people seeking binding financial agreements. They are significantly growing in popularity. We do hundreds a year now,” said Peter Carew, director of Carew Counsel Solicitors, specialists in family law.

“Parents are wanting their children to enter a binding financial agreement to protect their assets so that they run down the blood line,” he said. “It’s broaching the subject that can be the hard part.”

The desire to ensure that money gifted to children is protected in the case of a relationship breakdown is not the only reason for the rise in prenups.

Individuals entering into second marriages are also increasingly looking to sign binding financial agreements to protect the assets they take into the new relationship, particularly if they have had a bruising experience in the family court at the end of the first marriage.

Another source of demand is from couples getting divorced who use the agreements to avoid the need to go to the family court to have the assets divided between the parties.

Binding financial agreements can be more cost effective and more expedient than going to the family court and carry the same weight as orders from the court, once the documents have been signed and certified by lawyers on both sides, experts said.

Another reason for their popularity is fading concerns that they are not worth the paper they are written on. Courts now are supporting financial agreements. “They are unlikely to be set aside unless there is good reason for it,” Mr Carew said, such as fraud or duress.

In the case of gifting money to children, lawyers suggested a financial agreement would not be warranted if the sum involved was less than $200,000.

“It becomes more compelling if you are talking $500,000 plus,” Mr Carew said. If the parents wished to allow the partner or spouse of a child to build a financial interest in the asset that can be accommodated in a binding financial agreement, he added. A spouse could, say, be allowed to develop a 25 per cent interest in the asset over time, he said.

The cost of drawing up a binding financial agreement can start from $5000.

Family Court allows Sex Change for Autistic Boy


The Family Court of Australia granted permission for the teen, referred to for legal reasons as “O”, to begin hormone treatment following an emergency application from his parents.

The boy, who suffers from Asperger’s syndrome, a mild form of autism, had become suicidal after deciding he wanted to be a woman.

O was mature enough to know what he wanted, Family Court judge Linda Dessau said when making her decision.

The sex change was supported by his parents, younger sister, six specialists and the boy’s lawyer, the court heard.

“Despite the combined complexities of O’s youth, the depression and anxiety that he has suffered, and the symptoms of Asperger’s syndrome, the consensus among all the professionals was that he is capable of making, and has made, an informed decision,” Justice Dessau said.

The judge ruled a sample of O’s sperm should be collected and stored because of fears the sex change treatment would affect his ability to have children in the future.

The state where the boy lives cannot be disclosed for legal reasons.