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E47: Divorce and Children with Special Needs

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On the Show Today You’ll Learn

This month, Ben and Heather were joined by experienced  clinical psychologist Warwick McClelland to talk about divorce and separation when children with special needs are involved.  Topics covered include:

  • Talking to children with neurodiversity about divorce and separation.
  • Types of living arrangements post-divorce that work best for children with special needs.
  • How the Family Court decides parenting arrangements for families with special needs children.
  • How Court decisions for special needs children impact on siblings.
  • How parents can help special needs children adapt to new living arrangements.
  • Parentification and whether this is more common in solo parent households.
  • How Courts determine who has the right to make medical decisions for a special needs child.
  • Whether parents have a right to dispute medical decisions made by their ex-partner.

Links & Resources Mentioned in This Episode

Life’skool – an online platform providing therapy, parent coaching and neurodiverse children’s wellness solutions

Section 60CC of the Family Law Act 1975 – this is the portion of the act that spells out how the court is to consider what is in a child’s best interests

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Full Episode Transcript

Welcome! Divorce and children with special needs.

Benjamin Bryant: Welcome to episode 47 of our little podcast. I’m Benjamin Bryant from Bryant McKinnon Lawyers, coming to you from a professional sound studio. In case you missed last month’s show, we’ve moved out of our office studio and are now recording in a proper sound studio, so hopefully you’ll be enjoying better than usual sound quality on these recordings. Of course, I’m here with my partner and family law specialist, Heather McKinnon. Happy to be back in this fancy studio, Heather.

Heather McKinnon: Yeah, I feel like a rock star. It’s beautiful Ben.

Benjamin Bryant: Great to hear. Today we are going to discuss the complexities of separation and divorce when children with special needs are involved. We are very lucky to be joined here in the studio by highly experienced clinical psychologist Warwick McClelland to help us tackle this topic. Warwick has extensive experience working in both the public mental health system and in private practice. He works with a diverse range of therapies and techniques aimed at addressing both clinical and non-clinical concerns, including ADHD, depression, anxiety disorders, PTSD, autism spectrum disorder, phobias, anger management, substance abuse, self-esteem issues, relationship challenges, grief, attachment disorders, personality disorders and behavioural difficulties. What a list. Warwick has recently launched an online therapy initiative called Life’skool, spelt l i f e apostrophe s k o o l. A comprehensive mental health solution service for families, Life’skool offers services such as psychological therapy, parent coaching and wellness solutions, and specialises in assisting families struggling with issues surrounding neurodiversity and trauma. I couldn’t think of a more qualified guest to help us explore the complexities of separation and children with special needs. Welcome, Warwick. Thank you so much for joining us today.

Warwick McClelland: You’re welcome, Ben. It’s a pleasure to be here.

Benjamin Bryant: With such a well-qualified guest, I want to jump right into the topic. But just before I do, I must do my usual thing and remind listeners to share this show with friends and family starting down the path of separation or divorce. We’ve got a huge library with some world class experts. So please help empower your friends and family by sharing this resource. Now let’s get on with the show.

How do you explain family breakdown to a child with autism or other forms of neurodiversity?

Benjamin Bryant: Warwick, we know that talking to your children about divorce or separation is difficult at the best of times. But how do you explain family breakdown to a child with autism or other forms of neurodiversity?

Warwick McClelland: Yeah, well, Ben, it might go without saying, but I will start with any child needs to understand that it is not their fault and that they’re loved by both parents. So that’s key for any child, and it is the same for a child with a neurodiversity or a special need.

Warwick McClelland:  If we go through a few examples. Autism spectrum disorder, for example, being a common presentation that I work with. Kids on the spectrum, they really can grab on to things and be a bit concrete in their thinking. So, you’ve got to watch what you say around them. Particularly badmouthing other parents. I think they’re more sensitive to that dynamic and then grabbing onto that and making one parent the bad guy and the other one, the good one, so to speak. So I think, that black and white kind of thinking with children on the spectrum is something to watch out for. It can go the other way as well. Like really young children, whether they have special needs or not, can blame themselves. So again, just go to watch for the language so that the children don’t take little bits that you say and feel a burden and blame themselves for what’s going on. Certainly kids on the spectrum can do that more commonly than some others. And then I think, strategies used in other areas as well include visual scheduling. So they need to really understand what it’s going to look like when the separation occurs.

Warwick McClelland:  With ADHD kids, if you think about the stereotype of an ADHD child, not necessarily being able to maintain focus for long periods of time, if you’re going to sit them down and give them a long speech about what’s going on, they might just “vague out”. I think parents should know what their child is capable of processing. I really liked some of the work that Anne Crane, local occupational therapist, has done in past years where she’s sat kids on swings and got them moving and activating both sides of their brain, with an ADHD kid as far as being able to process information a lot easier. So if your child takes in things better while they’re sitting on a swing or jumping on a trampoline and you can, be creative then, go for it. Obviously, you know your own child though, so that doesn’t work for all.

Warwick McClelland: I think with say, an intellectual disability don’t assume that they can’t understand because they’ve got an intellectual disability. All children have a level of understanding and you’ve just got to tailor it where they’re at. And so again, they could also benefit from a lot of visual prompts and reminders, And I guess most of all, just provide opportunities for questions. They’re going to need to understand what’s going on, and also be able to express their feelings.

Benjamin Bryant: So interesting, Warwick and what is clear is that this is not a one size fits all approach, especially with ASD. Just using the word spectrum. What children can and can’t do, what their abilities are, is different for each child. So, just tailoring it and like what you said, the parents know best. They’re the best person to know their child. Hopefully, they have a combined approach, but not necessarily. And using therapists to help with that explanation is probably a great tip.

Warwick McClelland:  Obviously, if your child is already engaged with a therapist or psychologist or you yourself are engaged with one as the adult, as the parent, and that psychologist has experience with understanding and working with special needs and the spectrum, then definitely consulting is a great idea.

Does a week-on, week-off living arrangement work for children with special needs?

Benjamin Bryant: Now let’s delve into parenting arrangements for children with special needs. It is common for discussions about parenting arrangements to involve shared arrangements between both parents, such as week-on, week-off or that sort of thing. Warwick, does this sort of arrangement work for children with special needs?

Warwick McClelland: Short answer: if there is consistency, planning and cooperation, yes, it can work. Now does that happen all the time with separated families and separated parents? No. So it is a challenging area to figure out what care arrangement is going to work the best. I was listening to one of your previous podcasts with a colleague, Amy Sketcher, and she talks about the primary caregiver or primary attachment figure for a child. And yeah, stereotypically it does tend to be the mother that forms that role in having that feminine energy around children when they’re young. It’s more natural for the mother to step in and be that emotional, nurturing, attachment figure for a child or children in a family. Not always the case, so I won’t say that’s a blanket rule. Certainly, I’ve come across cases where the father fills that role very much. And I think it’s important for the parents to acknowledge who fills that role. Who has been filling that role and if you happen to be the parent that does not fill that role and has been a more secondary caregiver, particularly when it comes to emotional needs, to not take it personally. Just step back and allow the other parent to fill that role, and it’s not necessarily going to work out to be even. This whole idea that it’s got to be 50/50, that’s just not reality. Kids on the autism spectrum, for example, could really struggle with that week-on, week-off and need one primary base. And a lot of planning around what it’s going to look like when they go to the other parent’s place for care arrangements.

Benjamin Bryant: Heather and I spend almost every day explaining to separated couples that if the parenting arrangements aren’t shared equally or the parenting responsibilities aren’t shared equally during the relationship, they’re likely not going to work equally after the relationship. And Heather, consistency, planning and cooperation. You see many clients with that.

Heather McKinnon: By the time they get to us, a lot of that’s out the window.

How does the Court decide what living arrangements will be best for children with special needs?

Benjamin Bryant:  And Heather, how does the court decide what living arrangements will be best when there are children with special needs in the family?

Heather McKinnon: The big thing that we always start these discussions with is that under the Family Law Act, the thing that the judges are looking at is what’s best for the kids. So in one sense, kids with special needs are no different to children who don’t have those sorts of issues to be looked at. It’s really important for parents to understand that judges are looking for expert input when they’re making these decisions. It’s very rare for a judge to be making a decision without a court consultant or someone like Warwick providing evidence as to what these kids need. And what we’re really looking at, as both of you have spoken about, is the history. Who provided that emotional support before the separation? And moving forward how should the child’s time be divided, if you like, between the parents so that we’ve got the best chance of keeping that emotional regulation in place? So we’ve spoken in previous podcasts about emotional deregulation or dysregulation. When a child needs that comfort to be able to focus and function in the world, we’ve got to look at which of the parents provides that and who best is able to provide that stability.

Heather McKinnon: There are amazing couples where there is a high level of cooperation and high level of planning, and the child easily goes between households. But normally in cases before the court, there isn’t any cooperation at that level. And so the judge has really got to drill down into what framework do we have to put in place to manage the conflict between the parents so that the children are not in the middle of that conflict? And that invariably means that you’ll probably have one parent having more time with a child with disability than the other. That’s the experience that we certainly have. But a lot of people come in, don’t they, Ben and say, Oh, I want to go and win this case and you’ve got to do everything to win this case and you’ve got to go and… They have to be calmed and it’s got to be explained. This isn’t a war situation. We’re not using tactics. We’re not using anything like that. We’re using knowledge and we’re using examination and we’re using science to help us look at what’s best for these kids.

Benjamin Bryant: And I think it’s important for people to know as well, Heather, that there’s no separate section in the Family Law Act dealing with children with special needs. It’s just being plugged into the existing framework that’s already there when deciding what’s in the children’s best interests for all families and for our more astute listeners, that’s Section 60CC of the Family Law Act.

If the Court decides a special needs child requires a more stable living arrangement, does that mean the other siblings will have the same arrangement?

Benjamin Bryant: And if the court decides that a special needs child is better off in a more stable living arrangement, Heather, will that necessarily mean other siblings would have that same arrangement?

Heather McKinnon: Well, I think it’s important to bring Warwick in on this. Our training tells us that it’s probably important to keep siblings together as much as possible. It’s really that matter that Warwick talked about at the beginning. You don’t want a child to take on responsibility for the emotions of the rest of the family. And if you start singling kids out from their siblings, that’s exactly what you’ll create. You create an environment where there’s all sorts of problems for kids feeling that somehow it’s their disability or their problem that’s created it. So might ask Warwick to talk a little bit about it, but generally, I would tell clients siblings should stay together.

Warwick McClelland:  There’s definitely a danger there, Heather I agree, with creating a separate arrangement for the child with the special needs. As far as highlighting the issues more. I think, if we go to the Autism spectrum again, it can emphasise their egocentricity a bit more, that tendency to focus just on themselves if they’ve got a separate arrangement where they just get Mum or Dad to themselves for extended periods. Then that child is not learning how to function socially in the world with having to share time and attention with siblings. I think there can be benefits of having smaller amounts of time where the special needs child, has access to one of their parents a bit more one on one. But overall, the care arrangements are best served by keeping the children together.

Heather McKinnon:  I think that’s important Warwick that the issue of how you deal with a severely disabled child. So, often respite is provided so that if there’s a child that has really severe disturbance, then dad takes that child so mum can give time to the siblings on a Saturday morning. But what we tend to see is that that level of functioning between the parents means we don’t see them in court. Because they already work out how to do it.

Warwick McClelland: Yeah, it is rare, but I have seen it on occasions in my practice and then it works wonderfully when the parents can do that. And we’re trying to educate people in this podcast to aim for that.

What can parents do to help children adjust to changed living conditions?

Benjamin Bryant: And Warwick, adapting to new environments and family structures will be extremely difficult for some children with special needs. What can parents do to help the children adjust to the changes?

Warwick McClelland: Well, routine is an obvious one that comes to mind when trying to create that easy adjustment to change. Obviously if the routines can be quite similar across both households that’s even better. Again, does it happen?  Maybe not.  I think if separated parents can try to at least converse about their different routines, they don’t have to be exactly the same, but try to have some mirroring then it helps. If the routines are going to be very different then, a lot of reminding, maybe even when the transition happens across to another house say, “Okay, now you’re coming over to dad’s house. And remember, when you come to Dad’s house, we do it this way and that way is not quite the same as Mum’s.” All right. So, it’s not that it’s wrong or right, it’s just a different way that we do it. So, a bit of reminding and prompting and all the stuff I said earlier about having visual prompts and schedules for kids with intellectual disabilities or on the spectrum, helps to reinforce all that, so that they’re not relying on the verbal. Those kids tend to do better with visual prompting. Having as much notice as possible if there is a change in routine. Obviously, if children can have certain possessions that go to a particular house or transition across both houses that make them feel a bit safe, whether it’s just certain toys or certain comfort objects (pillows, blankets, whatever) that really help them feel comforted and safe, regardless of which environment they’re in, then that’s going to do them well with their emotional regulation.

Is “parentification” more likely with solo parenting?

Benjamin Bryant: Sounds like more consistency, planning and cooperation to me, Warwick. And Warwick, we often hear the term parentification. Can you explain to our listeners what this means and is this something that might be more likely when solo parenting after separation?

Warwick McClelland: So parentification is where a parent, either deliberately or subconsciously, expects their child to fulfil certain roles that a parent would usually be expected to fulfil. And I say deliberately or subconsciously because I think a lot of the time parents don’t realise that they’re doing it. So, this can include, getting a child to help out with the other siblings. It can also include leaning on the child for emotional support. Now, that’s more likely to be an older child, maybe leading into teenage years, that the parent may go to for support, just expressing that they got feelings or seeking out hugs more often or anything along those lines. Venting to the child about frustrations with the other parent, that’s a bit of a common one. And then again, the passing messages on to the other parent, I see that as a parentification move as well. It’s just not appropriate. That’s not the child’s role. And if there’s a breakdown in communication then the parents have to figure out a way around it, not get the child involved in that. And to answer the second part of your question, Ben, I would see it to be more likely with a single-parent situation. What we need to be mindful of is that that creates this extra stress, anxiety and confusion for the children when that role is added on top. And when you’ve got special needs as well, those children are more prone to stress with ADHD, autism spectrum, etcetera. Their threshold for experiencing stress and anxieties is already low. So to throw that on top. You’re really putting a burden on these kids and it’s something that can be quite concerning. So, my suggestion around all that is for the parents to really get their own support. And this is part of the driver for the new online work I’m doing with life’skool in that I’m really keen to help the parents first. Work through their own stuff. Look at their own underlying attachment issues and stuff that they haven’t resolved, because that sort of stuff really comes to the forefront in a situation like divorce and separation. That their own triggers, their own emotional abandonment and all these sorts of things come to the forefront. So if parents actually do the work on themselves in this period, or have done it prior, then they’re far less likely to slip into parentification. And it is one of the reasons why I have pulled back a bit from seeing as many children in my face to face practice, because I was finding that I was doing all this work with the kids and I could tell the parents weren’t really doing enough from their end. So it’s a bit disempowering as a clinician to know that you can help the kids to the cows come home, so to speak. But if they’re going back to the container of these parents who’ve got their own stuff that’s unresolved, they are the emotional container for these kids. So that’s where my focus has been shifted in the last sort of five years in my career. Particularly the last couple of years, where I’m really interested in helping with that trauma stuff, or at least disempowered stuff, that the parents haven’t worked through properly themselves.

Benjamin Bryant:  Heather and I have done previous podcast episodes and again, we speak to people who are almost on a daily basis explaining that children can be really resilient. But what they can’t put up with is parental conflict. And, to avoid the parentification and the parental conflict is to reduce the behaviours that you were just speaking of. Warwick what if there’s no insight. What if they can’t see it?

Warwick McClelland:  It is a real challenge when they can’t see what’s going on, Hopefully you’ve got at least one parent that does have insight. Unfortunately, that parent can end up making more of the accommodations and maybe even being the more flexible one and being the more mature one in some ways. It’s a tricky one when the parent doesn’t see it because, as you know, you can lead a horse to water but you can’t make it drink. It’s a bit of a sad situation for the child there because I think the child is going to continue to bear the burden of that emotional distress whilst one or both parents don’t realise their role.

Do parents have a right to dispute a medical decision?

Benjamin Bryant: And an area where we commonly see disagreement is regarding medical decisions for children with special needs. Warwick, as a treater, what’s your understanding about the rights that parents have to dispute a medical decision?

Warwick McClelland:  This is a good question to throw at me, Ben, because early in my career, I had the wool pulled over my eyes on this one. I had parents selling me a story about how things were with their child and I remember being convinced, this was probably the first year or two of private practice, 18 or 19 years ago. I was convinced that the other parent wasn’t interested at all in being part in the therapy process and that I should write a support letter to help them with their legal endeavours. And I fell for it at the start and then had a complaint made against me, had to answer to that complaint because of that failure, And so I now I’m much more aware that both parents have the right to have an input in medical decision making. And as a clinician, it’s my role to attempt to reach out to both. They won’t always both choose to play a role in decision making, but to at least attempt to engage both.

Benjamin Bryant: Heather and I attempt to try and get practitioners to understand that, both legal practitioners and also perhaps mental health practitioners. And it’s an ongoing issue that we have. Thankfully you learnt your lesson earlier Warwick.

Heather McKinnon: That’s why you’re on the podcast.

How does the Court decide who has the right to make medical decisions?

Benjamin Bryant:  Heather, how does the court decide who has the right to make medical decisions?

Heather McKinnon: So the Family Law Act says that parents have joint decision-making responsibility in relation to medical issues. The court can sometimes vary that and give one party the sole responsibility to make those decisions. So that’s quite an extreme thing to get to. And before that happens, there’s got to be a lot of investigation into what are the child’s needs. What are both parents’ capacity to respond to those needs? How do we best ensure that the kid’s needs are met? And sadly, there are cases where one parent has to be excluded from medical decision-making because, as Warwick’s explained, they have no insight and they continue to be damaging in the way they approach the child’s needs. So the most common one that we would see in terms of real conflict is a refusal to accept a diagnosis. So the more extreme cases that we’ve been involved in would be refusal to treat a child for a serious condition, such as cancer, where the parent who’s not thinking clearly just can’t get their head around what’s needed from them. So the court will have to empower one person who’s functioning more rationally to make those decisions. When we get to the topics we’re talking about today, which are more in the sort of psychological medicine area, it gets really complex because it’s not easy to make a diagnosis in the first place of some of these issues. And as Warwick explained to us, that’s why it’s a spectrum. Some children present clearly with very obvious signs of problems. Other children it’s a much more subtle presentation. And so you will often get a parent rejecting the diagnosis because they are just saying, No, my kid’s all right. They aren’t prepared to have a look at how the condition is impacting, for example, on the child’s experience in the classroom. So yeah, those cases get very, very complex and that’s why we have to have court consultants and experts to give us guidance as to what they’re observing in relation to the child.

Benjamin Bryant: And to help the parties and the court and the parents understand what happens if the child doesn’t get their Ritalin medication before school on the Monday.

Who becomes the primary decision-maker for NDIS after separation?

Benjamin Bryant: Heather, of course, with children of special needs, NDIS is most likely on the scene. Who becomes the primary contact and decision maker for the NDIS?

Heather McKinnon: Well, again, it usually should be a joint decision-making process with both parents, but it again requires high levels of communication and coordination. And where you have these conflicted families, where the parents can’t get on, the court will have to nominate one person as the decision maker. It really isn’t any different from the medical situation we just spoke about. It’s how does this kid maximise their chances of entering adult life with the best sort of scaffolding that we can give them. And if one parent is unable to get on board, then the court has to remove them from decision-making power. It’s not done lightly, but sometimes it has to be done.

Benjamin Bryant: Yeah, and I think it’s important as well just to explain to the listeners that it’s not the court making the decision whether the medical treatment should happen or not or the medication should be given or not. What it’s actually doing is giving the decision-making to one of the parents, which is a little bit different.

Goodbye for now…

Benjamin Bryant: Well, Warwick and Heather, what a fantastic show. Thank you both so much. And a huge thank you to Warwick for sharing your expertise. I know this is going to help a lot of people in our community who might be going through some really tough times.

Warwick McClelland: No worries, Ben. It was a privilege to be with both of you. And I hope the information helps the listeners out there.

Benjamin Bryant: And what do you think, Heather?

Heather McKinnon: Yeah, great show. And having people with Warwick’s skill give their insight really helps a lot of people.

Benjamin Bryant: I agree. Heather. I just love this show and how it’s able to help people, not just with legal questions, but with life questions too. Next month we are going to focus on legal questions that can result in real life problems. We’ll be talking about wills and estate planning. I can hear our listeners yawning already, but listen up. The episode is going to focus on all things that can go wrong when you don’t pay attention to wills and estate planning. So, I suspect the show is going to be filled with lots of horror stories, which always makes for an interesting episode. So I strongly recommend you tune in. And of course, if you have any questions or personal horror stories you’d like to share, please email us on familymatters@bryantmckinnon.com.au or message us on Facebook. Meanwhile, we’ll put a link to Warwick’s online therapy initiative, Life’Skool, and any other resources mentioned in today’s show in the show notes on our website. And a final reminder, share this show with any family and friends who may benefit. We hope to have your ears again next month.

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