Parenting arrangements for Neurodivergent children

Autism diagnoses are rising in Australia, with 4.3% of children aged 5 to 14 years in 2022 being autistic, or approximately one child in each classroom. The Federal Government recently released plans to divert children with mild to moderate developmental delays and autism away from the NDIS to the Thriving Kids program.

It is likely there is also an increasing number of cases in the family law system concerning neurodivergent children, particularly given the pressures that can come with parenting a neurodivergent child and the strain this can put on relationships. Although the same legislative framework applies in making decisions about children, there may be different practical considerations in making post-separation arrangements for a neurodivergent child.

The legislative framework

Under the Family Law Act 1975 (Cth) or Family Court Act 1997 (WA), the best interests of the child is the paramount consideration in making decisions about a child. In determining what is in a child’s best interests, the Court must consider:

1. What arrangements would promote the safety of the child and each person who has care for the child;
2. Any views expressed by the child;
3. The developmental, psychological, emotional and cultural needs of the child;
4. The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
5. The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and
6. Anything else that is relevant to the particular circumstances of the child.

In cases concerning neurodivergent children, consideration of the child’s needs and the capacity of each parent to provide for their needs will be important.

Additional considerations

In addition to the general considerations set out in the legislation, the following points may be pertinent when formulating an agreement or seeking parenting orders regarding a neurodivergent child:

1. There is diversity within neurodivergence, so consider the unique needs of each child, including as distinct from any siblings.
2. A child’s views should not be given less weight simply on account of their impairment or challenges, although their capacity in this regard may need to be assessed by an expert.
3. Neurodivergent children typically have an increased need for stability and a consistent routine.
4. Child-focussed co-parenting with similar parenting styles would be ideal, including maintaining consistent rules across homes.
5. If possible, it may be more manageable for the child to remain living primarily in the family home.
6. Consider the child’s environmental needs, including sensory needs.
7. Consider any processes or tools that may assist transitions, such as ensuring that comfort toys or objects of special interest are handed over.
8. What communication, expectations and strategies should there be around handovers if the child is fixated or dysregulated, including regarding lateness.
9. School refusal is more common for neurodivergent children and may need to be contemplated, including alternative care arrangements during school hours and how to agree on any change of school.
10. Which parent will be responsible during school hours if the child needs to be collected early.
11. Consider the administration and management of any medication.
12. It may be necessary to attend multiple therapies or specialist appointments. Consider how these will be arranged, who should attend and how they will be financed.
13. How will the parents communicate and share information about the child, including from treating practitioners and agencies.
14. Neurodivergent children typically need to be communicated with in a clear way that is not abstract. It may assist to use social stories or routine charts.
15. Neurodivergent children may act out the most with the person they feel safest with, so parents may have different experiences in this regard.
16. Should there be a process for in the event the child needs to co-regulate with the other parent.
17. What support or education could each parent benefit from to increase their capacity to meet the child’s needs.

If it becomes necessary for the Court to determine the arrangements for a neurodivergent child at trial, there will likely be an increased need for evidence from experts, the child’s school and the child’s treating practitioners.

If you would like specific advice or assistance regarding your child, please contact Lynn & Brown Lawyers to book an initial consultation

You can contact us at www.lynnandbrown.com.au or by calling 9375 3411.

About the Author: This article was authored by  Kate Hesford, Kate was admitted to the Supreme Court of Western Australia in 2012 and has practised family law for many years. She is motivated to help clients achieve positive outcomes as efficiently and amicably as possible, but also has experience in court proceedings.

Kate has previously worked at boutique family law firms, as the Legal Associate to the Chief Judge of the Family Court of Western Australia and at Legal Aid Western Australia. She has also completed a Graduate Diploma of Family Dispute Resolution.