Whitton and Whitton & Anor (No 2)

In the matter of *Whitton and Whitton & Anor (No 2)*, Justice Austin of the Family Court of Australia considered a dispute concerning the schooling arrangements for seven children. The proceedings involved the mother, the paternal grandmother, and the father, with consent orders being sought regarding the children's living arrangements, time spent with each party, and parental responsibility. A key element of the dispute revolved around the mother's desire for flexibility in enrolling the children in schools in her chosen geographical area, contrasted with the court's focus on the children's best interests.

The court was required to determine the paramount consideration of the children's best interests in the context of parenting orders, particularly when non-parents, such as a paternal grandmother, were involved in the care arrangements. The court also had to consider the application of sections 60B and 60CC of the *Family Law Act 1975* (Cth) to parties who are not parents of the subject children, and whether any presumption favoured parents over non-parents. Furthermore, the court needed to address the specific issue of ensuring the children attended the same school to mitigate risks of neglect and to facilitate monitoring.

Justice Austin reasoned that the *Family Law Act 1975* does not import a presumption in favour of parents over non-parents when making parenting orders, and that considerations under sections 60B and 60CC are not intended to extend to parties who are not parents. However, factors concerning a paternal grandmother could be considered under section 60CC(m). The court found that the children's risk of exposure to neglect by the mother could be monitored by ensuring they attended the same school, and that the mother's freedom of movement was not the most influential consideration. The paramount consideration was the children's best interests, and the court exercised its power to directly restrain parties, albeit sparingly, to ensure this.

By consent, the court ordered that the children E and R, and H and N, would live with the paternal grandmother, while children T, A, and Z would live with the mother. Equal shared parental responsibility was ordered for all seven children. Specific time arrangements were detailed for the mother to spend with H and N, and for the paternal grandmother to spend with T, A, and Z, with provisions for their time with the father. Crucially, orders were made mandating that the children attend specific schools, namely O Public School and O High School, to ensure they attended the same schools as their siblings, with the operation of these orders to be facilitated by both the mother and the paternal grandmother.