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Autism and the Family Law Courts

by | Mar 8, 2021 | Family Law

How would the Family Law Courts approach parenting cases involving children with Autism Spectrum Disorder (ASD)?

A child with ASD are likely to be more negatively affected by parental separation due to the inevitable changes to familiar routines. No doubt, children with ASD and their parents need excellent supports in place to cope with these changes.

The overarching question the Court would consider is what arrangement is in the best interest of the child? It is important to note that the way in which children on the spectrum are handled in the context of parenting orders is not a ‘one size fits all’ approach – they vary on a case by case basis. Some cases may require a very clear and strict routine put in place for the children with ASD to allow them to adjust to the changes in their living situation and to find security in their routine; whilst other cases may involve high-conflict relationships with considerations to be had as to how medical decisions will be made.

Some considerations the Court would consider include but are not limited to:

  1. Are the parents able to communicate in an effective and amicable manner with regards to decision-making for the children?
  2. Historically, which parent has been the primary caregiver or who the “lead parent” is, being the party who is more likely to be the primary decision-maker, often arranging treatments, therapies and appointments for the children; and whether the other parent has the capacity to look beyond their own needs to prioritise the child’s needs;
  3. The home environment, each parent’s work commitments and their access to medical treatments;
  4. Each parent’s acceptance/denial of the child’s prognosis and treatment choices;
  5. Each parent’s ability to manage the stressors involved in raising a child with ASD;
  6. Family violence or abuse issues;
  7. The child’s expressed wishes and his/her capacity to understand any consequences as a result.

The way the parents interact is particularly critical for situations involving children with ASD. The parents’ lack of communication or proven ability to come into an agreement on medical and other decision-making can actually hinder the child’s treatment. Because of this, Orders for sole parental responsibility are sometimes made to protect the children from conflict.

The Courts will aim to miminise that sense of loss and maintain the child’s normal supports and security as much as possible. As such, the Courts generally are not impressed with efforts one parent makes to alienate the other parent from the child’s life, or an overly critical and demeaning approach one parent would take towards the other parent’s parenting capacity. The ability to communicate well with the other parent as well as their capacity to facilitate a meaningful relationship between the child and the other parent is well-regarded.

Apart from getting the best possible legal team to represent you, you need to demonstrate that you are child focused, able to provide the most stable household and consistent support for your child and are doing your best to cooperate with the other parent. You will need to demonstrate that you are not in denial about your child’s medical condition nor that you are opposed to treatments being recommended by health professionals.

If you require assistance with regards to your parenting matter, particularly if you have a child with ASD or other developmental disability, please do not hesitate to contact one of our friendly family lawyers at Nevett Ford on 03 9614 7111 or via email melbourne@nevettford.com.au.