EXTON & FAHEY

In the Family Court of Australia, Justice Cleary considered a dispute between the parents, Ms Exton and Mr Fahey, concerning the living arrangements and parental responsibility for their two children, A and B. Leading up to the final hearing, the children resided in separate households, despite having meaningful relationships with both parents. The mother proposed the children continue to live separately, while the father sought for both children to live with him. The court also had to consider that both children had been diagnosed with autism spectrum disorder, the parents lived a significant distance apart, and there was an apprehended violence order in place protecting the father and his current partner from the mother.

The primary legal issues before the court were: firstly, with whom the children should live, and secondly, who should hold parental responsibility for their long-term care, welfare, and development. The court was required to determine the best interests of the children, taking into account their individual needs, their relationships with each parent, and the capacity of each parent to provide care and support, particularly in light of their autism diagnoses and the existing family dynamics, including the mother's emotional regulation difficulties and differential treatment of the children.

Justice Cleary reasoned that the children needed to be protected from the differential treatment they had experienced, which was exacerbated by the mother's emotional regulation challenges. The court found that the father was better able to remain calm and assist the children in regulating their own emotions. Furthermore, the court determined that an order for the children to live together with the father would mitigate the likelihood of further applications by the parties. Given the poor communication between the parents and the apprehended violence order, the court decided that sole parental responsibility should vest in the parent with whom the children reside.

Consequently, the court ordered that the children live with the father, commencing on 21 January 2017, and that the father have sole parental responsibility for their long-term care, welfare, and development. The orders also detailed specific arrangements for the children's time with the mother, communication protocols between the parents, and provisions regarding schooling and medical information, including an injunction restraining the mother from attending the children's residence.