How Does the Court Deal With Children with Autism and Other Special Needs in Parenting Proceedings?

Kirstie Barfoot

Children on the Autism Spectrum and those with other Special Needs in the Family Court - What arrangements work?

Within the context of parenting matters, the overarching question for a Judge to consider is 'what arrangement is in the best interests of the children?'.  
This seemingly simple question leads to a number of other, often more complicated questions, including (but not limited to): 

  1. Are the children, or either of the parties in danger, or scared for their safety?;
  2. Are the parties able to communicate with regard to the children in an effective and amicable manner?;
  3. Would the distance between the parties' residences make a Parenting Order that coincides with school days impractical?;
  4. Have the children's specific needs and routines been accommodated for by the parties?; and
  5. Does the Family Court need to limit the amount of contact between the parties in order to protect the children from ongoing animosity?

It is a considerable task, and simple issues such as one parent's work schedule have the potential to make two sets of Parenting Orders completely different in cases where they might otherwise be quite similar.

With this in mind, this article looks to address the impact of the fourth point above - being the children's specific needs and routines, and in particular, the specialised needs of children caught in family law disputes who happen to be on the autism spectrum.

Firstly, it must be noted that the way in which children on the spectrum are handled within the context of Parenting Orders is not a 'once size fits all' approach.  Matters before the Federal Circuit Court and the Family Court of Australia deal with children with special needs of varying degrees.  Some cases may simply require that a very clear and stringent routine is put in place in order to ensure that the relevant child can easily adjust to any changes made to their living situation, and find security in routine.  

Other cases may require special consideration regarding how the child is to be transported to and from both school and parental changeovers, and similarly, how medical decisions will be made - especially within the context of high-conflict relationships.

In the matter of Cullen & Cullen [2016] FamCA 110, which concerned two children (one of them autistic), Justice Forrest considered how decisions could be made with regard to an autistic child where both parents were unable to come to an agreement.  These decisions included what would be the most appropriate primary residence for both children.  

This particular matter was brought back before the Family Court after a number of years, under circumstances where 'week-about' (a term which refers to the parties being allocated equal time with the children) parenting arrangements were not working, and the father was seeking for the children to instead primarily reside with him.  

After carefully considering the manner in which the parties communicated, Justice Forrest found that the "necessary pre-conditions for sustainable shared parenting" were not present.  Justice Forrest further stated: 

"I am satisfied that C's [the child with special needs] particular needs require consistency of parenting approach, not just to the provision of his day to day care, but also to the optimisation of his long-term developmental requirements through careful and considered engagement with experts who can provide care, advice and support as he grows. [...]

I am satisfied that the mother has demonstrated the greater preparedness to seek out and appropriately engage with such experts in the past than the father has, as well as a less critical and demeaning approach to the father's parenting capacities [...] the evidence persuades me that the parental responsibility for major long-term issues about C's health and education should be vested solely in the mother."

The matter of Cullen & Cullen [2016] FamCA 110 also briefly considered the appropriateness of having different sets of Parenting Orders for each individual child, as only one child was classified as 'special needs'.  Justice Forrest found:

"There is nothing about the matter that persuades me that B's [the other child of the relationship] or C's best interests would be served by them being separated.  Accordingly, having determined that it is in C's best interests to live principally with the mother, I am satisfied that it is in B's best interests also to live principally with his mother, such that he is not separated from his brother." 

Ultimately, Justice Forrest found that the children should live primarily with their mother, that the mother should hold primary responsibility for making medical and educational decisions for the parties' autistic child, and that both children should spend substantial and significant time with their father each alternate week, as well as during the school holidays.  His Honour also noted that: 

"The parental responsibility order [...] will not deprive the father of the opportunity to be involved, alongside the mother, in consultation with the experts, or the opportunity to provide his own input into the process of the decision making."

In the separate matter of Hamilton & Logan [2015] FamCA 647, the Family Court was tasked with considering the needs of a child with an autism spectrum disorder where the father was more capable of caring for her, but he did not recognise the importance of the child maintaining a meaningful relationship with her mother.  

The Family Court ultimately found that the toxic nature of communication between the parties meant that the father should have primary responsibility for making decisions about the child's health and education, as the child would continue to live primarily with the father.  

The Family Court also found however, that the mother must be kept informed, and have regular and consistent time with the child.  Justice John stated:  

"The evidence of both the father and the mother supports the view that their communication is characterised by conflict [...] I have little confidence that she [the mother] will have the capacity to communicate with the father in the future in relation to issues of significance relating to the child's welfare.  I am satisfied, having regard to the highly conflictual nature of the parties' relationship and their long-standing difficulties in communicating with each other, that it would be contrary to the child's best interests for them to share decision-making responsibility. [...]

I am satisfied that it is appropriate that orders be made for her [the mother] to spend time with the child [...] The child has much to gain from the support and maintenance of her relationship with the mother."

Orders were made for the child to live with her father and spend time with her mother for four nights each fortnight, as well as at any school event or extracurricular activity that the mother wished to attend.  

Whilst the above matters represent only two examples of parenting matters that have dealt with children on the autism spectrum, there are three consistent themes addressed in considering the best interests of those children, these being:

  1. Communication between the parties; 
  2. Willingness to engage with and facilitate medical treatment; and
  3. Willingness to facilitate a relationship between the child and the other parent.   

In family law matters, any need for parents to communicate regularly, honestly, and without hostility is heightened in cases where a child has regular medical appointments and requires a particularly high level of stability.  The Family Court is critical of parents who are dismissive of the importance of medical treatment, or who make communication difficult (especially in the presence of the children).  

The Family Court will, without exception, make Orders that protect the children from conflict and ensure that they are receiving the treatment they need, which can often mean making Orders providing one parent with more responsibility if the parties are unable to demonstrate the capacity to co-parent.  The Family Court will also, where necessary, make Orders creating a specific pathway for the parties to communicate in order to ensure that the needs of the children continue to be addressed in the long-term.

Most other aspects of parenting matters have similarly heightened importance when concerning children with special needs.  As such, parties who are both flexible and open to parenting arrangements who present a practical option for the needs of the children are more likely to be successful in parenting proceedings than, for example, a party asking for 'week-about' time arrangements with no evidence or consideration as to how the child or children's special needs will be addressed when they are having to change residences weekly.  

Ultimately, the outcome that is achieved in a parenting dispute, with or without the assistance of the Family Court, will be unique to the circumstances of the parties to the dispute.  If you have questions regarding how to come to a suitable parenting arrangement with respect to your circumstances, or you feel that you need legal advice regarding the special needs of your children following separation, please don't hesitate to get in contact one of Coleman Greig's family law Accredited Specialists.