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Autism and family law: what to know

By October 28, 2019February 23rd, 2024No Comments

With the increase in number of children being diagnosed with Autism Spectrum Disorder (ASD), it has never been more important for the family courts to be cognisant of the unique issues around autism and family law when working out post-divorce parenting arrangements. Here we take a brief look at autism and family law, and how the courts approach parenting and property proceedings.

Autism and family law

The current statistics in Australia indicate that 1 in 100 children have been diagnosed with Autism Spectrum Disorder, a developmental disability with a wide range of symptoms and which affects each child differently. While some children ‘on the spectrum’ are high-functioning, others may be completely non-functioning. Some ASD kids may have limitations on their verbal communication and their comprehension, others have difficulties with sensory stimuli—but what they all tend to have in common is that they typically have a high need for consistency, predictability and stability.

Because of this unique characteristic, a child with ASD may be affected more negatively by parental separation and divorce due to the inevitable changes to familiar routines. So while divorce is never a picnic for anyone, children with ASD and their parents need good supports in place to cope with the disruption to their lives.

How do family courts handle cases involving autism and family law?

Each case is different but all cases are underpinned by the ‘best interests of the child’ principle. When working out property settlement and the care arrangements for special needs children, the courts look at issues like:

  • Historically, which parent has been the primary caregiver;
  • Who has cared for the children since separation;
  • The home environment;
  • Parents’ work commitments/practicalities of regime;
  • Parents’ access to treatment and therapeutic facilities;
  • Any limits to parental capacity of each parent;
  • Any family violence or abuse issues;
  • Any parental mental health issues;
  • Whether proposed new routines are understood by the child and whether they are actually achievable;
  • Each parent’s acceptance or denial of the child’s diagnosis;
  • How each parent can reinforce and continue the treatment methods recommended for the child;
  • What each parent’s capacity is to manage the stressors involved in raising a child on the ASD spectrum;
  • The child’s age, needs and expressed wishes as well as the capacity of the child to understand any consequences that may apply to their expressed wishes.

Residential considerations: autism and family law

Seeking consistency of routine between the two homes does not necessarily mean that an equal 50:50 custody arrangement would work, given the more frequent changes in routine. The back-and-forth nature of shared care can work against the therapeutic measures being put in place to provide extra predictability and consistency, so while equal shared care may seem “fairer” to the parents, it just may not work for the child.

Kids specific needs and routines need to be accommodated by the two households going forward and for this reason, courts often order very clear, stringent routines for the children if there will be any adjustments to their living situation. In fact, the special circumstances may make the most important consideration the security of a home, and this can affect a property settlement.

Inevitably, divorce represents a loss to kids, and a dramatic change to their lifestyle. They may have to relocate, losing social supports and routines, and all of these impacts will likely be experienced more severely by the ASD child than the neutotypical one. The courts will aim to minimise that sense of loss and maintain the child’s normal supports and security as much as possible.

Sustainable shared parental responsibility

There are various circumstances that Courts generally look to see if they exist for equal shared parental responsibility to work, including the ability of the parents to communicate civilly and effectively with each other. Where there is a toxic relationship between the parents and communication is characterised by conflict, it is often impossible for parents to come to mutual agreements and the courts are required to impose orders that protect the children from conflict and ensure they get the appropriate therapies or treatments they need. Because of this, orders for sole parental responsibility are sometimes made, especially if a parent is disruptive to the child’s life or refuses to cooperate.

The way the parents interact is particularly critical for situations involving ASD kids. This is because consistency of parenting is so important for these kids, and further, because the parents’ lack of communication or agreement on medical and other decision-making can actually hinder the child’s treatment. What is needed is good, honest, reliable communication and stability so that the child’s needs can be met across a wide range of issues, including discipline, therapeutic treatments, medication, diet, education (mainstreaming or special needs schooling), and general routines.

What goes against parents in parenting proceedings?

Apart from a toxic communication style with their co-parent, efforts to alienate the co-parent from the child’s life are–quite rightly–frowned upon in the courts. Courts are also not impressed with an overly critical and demeaning approach to the parenting capacity of the other parent. However, cases are not always so simply, and the question of intent or malice comes into play. In some cases, a parent simply does not understand the importance of ensuring a child maintains a meaningful relationship with their other parent.

Some co-parents refuse to cooperate with each other, or have refused to informally identify a “lead parent”. The lead parent is the one who is more likely to be the chief decision-maker, often arranging therapies, treatments and doctors’ appointments, and taking care of transport. The courts will want to know who this lead parent is and whether the other parent has had the capacity to look beyond their own needs to prioritise the child’s needs.

What goes in parents’ favour in parenting proceedings?

The courts will try to determine which parent has the most stable household and can provide the most consistency. For example, which parent ensures the child attends their regular medical appointments?

Courts are usually impressed by parents who have demonstrated a willingness to source and engage appropriate medical care and experts for their children with ASD, to optimise their long term developmental needs. This includes their attitude to medical treatments, experts and even the child’s diagnosis.

The ability to communicate well with a co-parent is well-regarded, as is their capacity to facilitate a relationship with the child and the other parent.

During parenting proceedings, a parent should ensure they address the practicalities of how their proposed parenting arrangements will work, showing evidence of consideration of how the child’s needs will be met, and disruptions to routines managed.

When the parents can’t communicate at all

Obviously parents need to discuss and agree upon strategies and treatments, and to maintain ongoing communication with therapists and other treatment providers. But in some high-conflict divorces, the parents are completely unable or unwilling to work together in the best interests of their child. This is often made worse if the ASD child is non-verbal and can’t express their wishes or how the family situation is affecting them.

However, courts may make orders for parties to attend co-parenting counselling and to follow the counsellor’s recommendations. The courts may also direct parents to attend treatment provider appointments together, to ensure they receive the same information about the child’s treatment and therapies.

Parents may be directed to agree on consistent regimes to ensure things like medication being properly dispensed, a consistent diet, or consistent methods of discipline. Courts have sometimes even required parties to swap detailed logs or keep a shared computer calendar that tracks diet, behaviour, medication and so on.

The court also tries to make orders to set out a particular pathway that the parties should follow to communicate going forward, to enable the kids’ needs to be properly addressed long term.

Future needs

When working out property settlements, the courts will be mindful of the future responsibility of care for the child. This is crucial in cases involving profoundly disabled children who have complex, high support needs. Whether or not a co-parent can work or has the full-time care of the child may also influence any adjustment the courts make for “future needs”, including ordering Adult Child Maintenance to be paid.

Once a child turns 18, the involvement of the Child Support Agency ceases and the Family Law Act then applies. This enables the courts to order that one parent is to pay adult child maintenance to the other parent for the rest of the child’s life (this is totally separate from spousal maintenance).

Legal landscape

How children with ASD are treated in the family court system hinges on the level of understanding that the judicial system has about ASD, because what works for neurotypical children doesn’t necessarily work for the ASD child. Your family lawyer, too, needs an understanding of the unique needs of these children and must present a complete picture to the court to be able to elicit relevant information during testimony and prepare you for questions. Your lawyer may need to liaise with the child’s experts or service providers so that a better understanding of the child’s needs can be obtained.

To learn more about autism, please see ASPECT’s website.

Do you need assistance with negotiating parenting arrangements for a child with special needs, or with another family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.

You may also like to read our previous blog on autism and family law.


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