Education Law Notes – Term 3 2022
Published on August 22, 2022 by David Ford
You are no doubt familiar with the common provision in enrolment contracts requiring parents to give “one full term’s fees in lieu of notice” when withdrawing their child from a school. We consider ways to respond to a recent ACT Tribunal case challenging the fairness of this enrolment condition.
Historical sexual abuse cases continue to feature in our court system. However, the passing of time since these incidents can mean such proceedings are stayed permanently. My colleague, Bill Madden, is an expert in this area and has written about two of these recent cases.
Educators of young people know too well that the reckless behaviour of one student can cause an injury to another student, even when there is teacher supervision in place. I examine a case where the discipline of an offending student and a school’s liability to an injured student is put under the spotlight.
Finally, you may have seen the recent news reports of a Coronial Inquiry into the tragic death of Tim Fehring, a 15 year old Victorian student who died while on a school trip in Europe. We examine the Coroner’s findings and what schools can learn as a result of this tragedy.
Regards,
David
Unfair Enrolment Conditions
Much has been written in recent months about a Tribunal case in the ACT involving a school which sought to recover school fees in lieu of notice from parents who withdrew their children from the school at the end of the 2019 school year without giving a full term’s written notice. The school relied on this provision of its enrolment contract:
One full College term’s notice in writing to the Principal is required for the intended withdrawal of the child, otherwise a full term’s fees will be charged. The written notice must be received at the College by the first day of term. Any notice received after the first day of term will render parents/carers liable for the fees for that term and the subsequent term in lieu of notice.
Most independent schools have comparable provisions in their enrolment contracts.
The parents successfully challenged the fairness of the enrolment contract. Read on for ways to ensure your enrolment contract is not struck down as unfair.
Permanent stay of proceedings seeking damages for alleged sexual assault
In 1968, GLJ was 14 years old and was a parishioner of the Parish of Lismore. During 1968, Fr Clarence Anderson was appointed to that Parish.
In 2019, GLJ said that her father (now deceased) was injured in a motorcycle accident and another priest, Fr Brown (also now deceased) allocated Fr Anderson as a support priest for her family. She said that he visited the family home regularly. She said that, one Saturday afternoon at about 1pm or 2pm, when she had returned home from netball and was getting changed in her bedroom, Fr Anderson sexually assaulted her. There was no one else at home at the time.
Father Anderson left the priesthood in 1971 and died in 1996.
GLJ sued the Lismore Trust in early 2020 alleging that the Lismore Trust was directly and vicariously liable for the alleged sexual assault by Fr Anderson.
The Lismore Trust sought a permanent stay of the proceedings. Read on to see what happened and how other similar cases involving educational institutions have been handled.
Is a failure to discipline a breach of the school’s duty of care?
Deborah was a 15-year-old in year 10 at a co-ed school of several hundred boys and girls. During morning recess, she was standing with some friends in the off-quadrangle area, a comparatively small space next to the main quadrangle. She was standing on a grass area when a boy named Alfonso about the same age came from behind and picked her up by grasping her legs below the knees. While she struggled to free herself, he carried her a few paces and dropped her. When she fell, she landed on a corner of the concrete slab embedded in the grass striking her tail bone. There was no supervisor in the area at the time. The practice was to have a teacher there at lunchtime but not during recess.
Could the school’s failure to discipline Alfonso constitute a breach of its duty of care to Deborah? Read more to find out.
Off Campus Excursions: A sad reminder to school leaders
Off-campus excursions involve a myriad of risks and serious issues can arise when engaging in activities that involve risks which aren’t easily foreseeable or can’t be easily mitigated. Sadly, sometimes these excursions see tragic events occur. These occasions serve as a reminder to school leaders and their staff that adequate preparation and compliance with risk management procedures and training are critical for the safety of all students and staff alike. This article considers a recent example of a school’s international trip, the distressing death of one of their students and what the law requires of schools to ensure the safety of students.
Our deepest sympathy is extended to this student’s family, teachers and friends and trust that the reminder in this article will assist schools to continue to provide opportunities for overseas tours for their students with appropriate health and safety measures in place.
Recent Seminars
David Ford spoke at The Education Network’s School Law webinar on “Student Discipline & Schools: How Far Can You Go?” on 16 August 2022. A copy of his paper can be requested here.
At the Alliance of Girls’ Schools Australasia webinar on 31 August 2022, David Ford spoke about the legal implications of transgender issues for girls schools. If you would like to receive a copy of his handout from this webinar, please contact David Ford.
Upcoming Seminars
ANZELA (Australia & New Zealand Education Law Association) Conference 2022 is being held on 28-30 September 2022 in Sydney. Stephanie McLuckie will be speaking on “Navigating the online environment during the Covid recovery: child protection, duty of care and privacy concerns”.
On 29 September 2022, David Ford will be part of a panel addressing “Excursions, camps, tours: Beyond the School gates” at an Education Law Symposium organised by Catholic Schools NSW.
Charles Harrison is speaking at The Education Network’s 4th Annual Law of Religious Institutions Conference, which will be held at the Marriott Hotel in Melbourne on 20 and 21 October 2022. Charles will be speaking on “Religious Institutions and Vicarious Liability”.
