Australia: Spectrum disorders and divorce: Post-separation parenting arrangements for children with high needs

Last Updated: 10 March 2016
Article by Rachael Murray and Fraser Murray

With both the rate of spectrum order diagnoses and the rate of divorce increasing each year, Australian Family Courts are faced with an ever increasing number of proceedings involving parents of children with a spectrum disorder. In this alert, Associate Fraser Murray and Partner Rachael Murray discuss some useful strategies to limit the impact of divorce on these children and provide some practical assistance to parents in relation to what factors the Court would take into account if required to determine what parenting arrangements best meet the needs of their children.

One in one hundred children are diagnosed with a brain disorder affecting their social and communication skills, ranging on a spectrum from mild to severe. It is widely accepted that children with Autism or Asperger's Syndrome Disorder, who symptomatically have specific habits and behavioural patterns, are best supported by structure, routine and predictability. Undeniably (and while no doubt rewarding) parenting an Aspergic or autistic child is an intensive, challenging and, at times, incredibly difficult responsibility.

Even in an intact family, a diagnosis of autism can place a heavy strain on the household. In addition to emotional stresses, there can be significant financial consequences. A parent may have to leave his or her career to care for the child or to be available to transport the child to therapy sessions. The other parent might have to work extended hours in order to help pay for the cost of private therapy. Both parents likely must forego leisure time to learn therapy reinforcement techniques and then apply them on a scheduled basis with the child. Unfortunately, but not unexpectedly, these unforeseen pressures can have a fractious impact on otherwise sound relationships, leading or in part contributing to separation and disputes in relation to post separation parenting arrangements.

Limiting the impact of divorce

As clinical psychologist Vincent Papaleo has described it, divorce represents loss in all circumstances to a child. Not only is there the loss of the family unit and the regular contact with either or both parents, but in more extreme cases, there can be the loss of a parent completely, loss of extended family, there can be social dislocation in matters involving relocation and the loss to the child of friends, community, school and other familiar social and support networks.

The aim must be to minimise loss wherever possible, maintain the child's normal supports and sustain as much security and regular routine as is practical. Minimising loss adheres to the fundamental principle of healthy development, of creating a stable, consistent and predictable environment, and for this to extend to relationships with family, peer relations and community. This applies to all children experiencing separation of their parents.

Post separation parenting arrangements

In many cases, a parent may initially seek shared care of the child (where each parent has the child approximately fifty percent of the time). Whilst shared care or equal time may sound "fair" on paper, such an arrangement may not necessarily be in the best interests of a child, especially children with Autism or Asperger's Syndrome Disorder.

Because autistic children often have difficulty generalising what they learn, it is in the child's best interests for both parents to constantly reinforce the child's learning with coordinated consistency. The back and forth nature of shared care may be counter to the need of an autistic child to have a predictable and consistent schedule. The reality is that an autistic child may have enough hurdles to overcome without further complicating matters with an overly repetitious back and forth schedule.

Research shows that autistic children do not cope well with inconsistencies in their schedules, and a child's need for a regimented schedule of behavioural therapy could be compromised if the child has to be passed between two households with two different methods of overseeing his or her development. Parents must acknowledge that whilst it is the role of professionals to develop, oversee and administer the child's therapy, it is critical for parents and other family members of the autistic child to learn how to reinforce that therapy at home.

For those reasons, even the most well intentioned parents with the most synchronised efforts may unknowingly be compromising their child's need for consistency with a shared parenting arrangement. Unless there is reason to believe that the separating parents can effectively work together or consistently co-ordinate their schedules to seamlessly reinforce the child's therapy and progress from one household to another, shared parenting might not be in the autistic child's best interest. This is particularly so in post separation arrangements involving parents that do not have the ability to communicate with clarity or effectively co-parent a child.

Additional considerations

Whether parenting matters involving children with a spectrum disorder are negotiated between the parents or require determination in the Family Courts, consideration should be given to the following questions:

  • What is each parent's acknowledgement and acceptance of the child's autistic disorder, as opposed to a denial of the condition?
  • What is each parent's ability to reinforce and follow through on daily basis, recommended behavioural interventions for the autistic child, and the level of participation the parent has in working with the autistic child?
  • What is each parent's ability to manage the emotional and psychological stress involved with raising an autistic child on a daily basis?

These questions are additional considerations to those that are prescribed by the Family Law Act which inform parents, legal advisors and the judiciary of the legislative considerations applied to parenting matters in Australia.

It makes sense that given the increasing rates of both spectrum disorders and divorce in Australia, lawyers and judges are constantly facing new, complex and individual cases where families of autistic children are in need of legal assistance or judicial intervention. In all circumstances, the challenge for the Family Courts is to treat both parents fairly and equitably while safeguarding the needs and best interests of the child as a paramount concern.

The HopgoodGanim family law team regularly assist parents to negotiate arrangements or seek orders with respect to their children with high needs, including those with spectrum disorders. We offer early intervention, support and pragmatic advice to parents requiring advice in relation to complex parenting disputes and we work together with parents and other medical and helping professionals to ensure that the best interests of the children are advanced and promoted at all times.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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