Autism Spectrum Disorder (ASD) and other childhood disabilities in Australia are increasing. There are many families coming into the system going through separation with special needs children. Like all family law matters, special needs children are all individual and no two are the same. The same processes that work for parents of non-ASD children, may not work for ASD affected families. Despite this, there are three exceptions contained in the Family Law Act 1975 that apply to all families for spending equal or significant time with each parent, being abuse, neglect or family violence.
The main conflict of issues for parenting orders for special needs children primarily involves either one parent not complying with the child’s treatment plan, in denial by one parent of the disorder, financial problems in caring for the child and change of routine for the child when spending time with either parent resulting in mental trauma or meltdowns.
It is important that a full assessment and diagnosis from a qualified and reliable professional using the proper assessment tools is conducted and provided to the other parent or their lawyer, especially if it is unclear how a change in future parenting arrangements will work for the child. It is also important that when in dispute about a diagnosis, a diagnostic medical professional, rules in or out the diagnosis of ASD or any other diagnosable condition.
Under Section 60CC of the Family Law Act 1975, the child’s best interest is the paramount consideration and the child is entitled to a meaningful/equal time relationship with both parents. However if the child has been diagnosed with a condition being medically unable to cope with change, then negotiating parenting orders that adequately consider the needs and special needs of ASD families and children is highly recommended. This will potentially limit or decrease the chances of the need for further litigation such as contravention applications or the child’s symptoms from worsening (meltdowns physical/verbal). Parenting orders are not a one size fits all for all children and often exceptions need to be made when evidence shows that a child simply will not be able to cope with change of routine and environment like another non-ASD family going through a separation.
It is also important to know during property settlement, that the future needs of ASD families can be higher than non-ASD families in certain circumstances. Although ASD families receive NDIS government funding for their special needs children, this is often set at an annual budget and families only have access to funding for certain treatments and therapies. Any treatment that is not covered by the NDIS plan, will be paid out of the parents’ pocket with no likelihood of reimbursement. An example is dental or orthodontic treatment. Therefore, it is important to choose a lawyer that can advocate for you with the knowledge of your unique situation to achieve the best outcome in a family law property settlement in this regard.
At Able Defence Lawyers, we have in-depth knowledge about the systems and processes that special needs families, not just ASD, must go through, the long term struggles they face, and empathise with clients in these situations.