By Rachael Murray, Partner, Alexandra Moles, Partner, and Hannah Hall, Lawyer

In Australia, the prevalence of Autism Spectrum Disorders (ASD) is rapidly expanding, with the most recent survey from the Australian Bureau of Statistics recording a 25.1% increase in diagnoses between 2015 and 2018. [1] It follows that family lawyers and the Federal Circuit and Family Court of Australia are seeing a growing number of disputes involving parents of neurodiverse children, which naturally attach some key considerations when determining the best interests of the child (or children) in question.

What is ASD and how can it affect the family?

ASD can be defined as a collection of persistent developmental disorders, characterised by symptoms such as difficulty in social interaction, impaired communication skills, poor adaptive functioning and/or restricted or repetitive patterns of behaviour. [2] While there is no one definitive test for ASD, diagnoses are made based on behavioural observations, developmental histories and psychological assessments, which are primarily carried out by paediatricians or child and adolescent psychiatrists. Generally speaking, it is accepted that children with ASD benefit hugely from routine and predictability, which can often translate to a challenging and intensive (yet undoubtedly rewarding) environment for parents and siblings.

Even for families who have not gone through the separation process, a diagnosis of ASD can present a number of unforeseen challenges outside of emotional stresses. Parents may, for example, have to make significant career changes to accommodate transport to therapy, or engage in therapy reinforcement techniques at scheduled times during the day. Conversely, one party of the relationship may need to extend their working hours to assist with the expense of the therapy required, and the downtime of both parents may go directly towards helping their child or children implementing strategies learned at therapy, or simply managing the symptoms of ASD in an everyday environment. Unfortunately, but perhaps not unexpectedly, these pressures can often have a fractious impact on otherwise healthy relationships, sometimes contributing to separation and/or more complex and nuanced disputes following the separation process.

In circumstances where parents separate, these challenges can become compounded with financial pressures, especially where there are two newly established households that require support from the same level of income. In some cases, child support needs of children with ASD can be unusual, particularly when a parent may not be in paid employment and may require ongoing financial support from their former partner to continue to support the child.

Parenting Arrangements Post-Separation

Following separation, there is no presumption of ‘shared-care’, or equal time with a child. The law keeps the focus on a child’s rights, not a parent’s rights upon separation and the legislation contains a checklist of many factors to be taken into account when determining a child’s best interests. While best interests are primarily considered in connection with promoting meaningful relationships between the child and their parents, as well as protecting the child from harm, there are a number of other considerations given weight by the Court that have particular relevance to children with diagnoses of ASD.

From a practical perspective and because children with ASD can often have difficulty generalising what they learn, it is usually in the best interests for children to have a predictable and consistent schedule. An overly cumbersome back and forth schedule with multiple changeovers and a lack of predictability may generate confusion and unease. It is recommended that where possible, children with ASD keep to their regular routines with as least disruption as possible, which could involve limited changeovers, maintaining the regular supports of the child or children and replicating as much of their usual routine as is practical. The arrangements decided upon (by either a Court, or by agreement between the parents) will need to be based upon the individual needs of the child and strategies may need to be developed to ensure that parents feel comfortable in maintaining a meaningful relationship with the child, especially where one parent may no longer be a primary care giver due to the child’s needs being better served by a former spouse.

In assessing the care of a child with ASD, the Court will give significant consideration to the abilities of both parents to provide for the children consistent with their needs. This was highlighted in the case of Cosmakis & Ganiadis, [3] in which Judge Newbrun (with the benefit of expert evidence) specifically evaluated the capacity of the parents to provide for the needs of two children diagnosed with ASD, including their emotional and intellectual needs, [4] as well as the attitude to the children and to the responsibilities of parenthood, demonstrated by each of the children’s parents. [5] It was ultimately found that the mother and maternal grandmother were better placed to attend to the children’s developmental needs in this instance, while the father lacked ‘adequate attunement’ in this regard. While there were a number of reasons noted within the judgment, the above-mentioned factors were afforded significant weight in the Judge’s decision to order that the children reside with their mother and spend time with their father in accordance with their wishes.

How can we help?

The Mills Oakley family law team have a wealth of experience acting for parties who have neurodiverse children, including those with spectrum disorders. We offer considered, strategic and pragmatic advice, as well as adopting early intervention strategies to assist parties to reach a timely resolution of their parenting matters. Part of our approach is working closely with medical and other professionals in conjunction with parents to ensure that the outcome reached is inherently child-focussed and reflective of leading social-science.

If you have any questions with respect to the issues outlined above, as well as parenting issues more broadly, the team at Mills Oakley would be more than happy to assist.

For information in relation to education, therapy and support services, visit the Autism QLD website here.

[1] https://www.abs.gov.au/statistics/health/disability/disability-ageing-and-carers-australia-summary-findings/latest-release

[2] https://www.aihw.gov.au/reports/disability/autism-in-australia/contents/autism

[3] [2022] FedCFamC2F 164

[4] Family Law Act 1975 (Cth) s 60CC(3)(f)

[5] Ibid s 60CC(3)(i).