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.

2015 AFR Beaton Client Choice Awards:
Best Law Firm (revenue $50m - $200m)
Best Professional Services Firm (revenue $50m - $200m)

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Coleman Greig Lawyers
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Coleman Greig Lawyers
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions