Dutton and Dutton and Anor

This case concerned a parenting dispute between the mother, Ms Dutton, and the maternal great aunt, Ms I Dutton, regarding the residence of two children, aged 10 and 7. The court was required to determine where the children should live, considering the various drawbacks present in each household and the expressed wishes of the children.

The legal issues before the court included assessing the children's wishes, given their maturity and expressed desire to live with the maternal great aunt, and determining the weight to be given to these wishes. The court also had to consider the need to protect the children from physical or psychological harm, specifically in relation to potential exposure to family violence and illicit drug use in the maternal great aunt's care, as well as the mother's capacity to provide a safe and stable environment. Furthermore, the court was tasked with determining the least order likely to lead to further proceedings, acknowledging the finely balanced nature of the case.

The court applied the principles outlined in sections 60B and 60CC of the *Family Law Act 1975*. It recognised the importance of the children having a meaningful relationship with both parents, but found that such a relationship could be maintained regardless of the children's primary residence. The court gave significant weight to the children's expressed wishes to live with the maternal great aunt, noting their maturity and the fact that they had spent most of the preceding years in her care. While acknowledging some risks associated with the maternal great aunt's household, including potential exposure to illicit drug use and family violence, the court found these risks to be less significant than the high risk of the children not settling if ordered to live with the mother at that time. The court also considered the father's limited role in the children's lives and the need for him to maintain a relationship with them.

Ultimately, the court ordered that the children live with the maternal great aunt, Ms I Dutton, who was granted sole parental responsibility. The orders detailed specific arrangements for the children to spend time with the mother and the father, and included injunctions restraining the parties from using illicit drugs at their properties when the children were present.