The changing nature of parental responsibility: HSC Legal Studies

What this dot point is asking

The changing nature of parental responsibility is one of the four contemporary issues that must be studied in the Family option of the Legal Studies Stage 6 Syllabus (2009), alongside recognition of same-sex relationships, surrogacy and birth technologies, and care and protection of children. You must identify and investigate the issue and evaluate the effectiveness of legal and non-legal responses to it.

This page is about the idea of parental responsibility and how it has changed: what it means, who holds it, how it is shared and limited, and how the law has responded to new family forms and new risks. The mechanics of divorce, parenting orders and the s 60CC best-interests factors are covered on divorce and the best interests of the child, and parentage through surrogacy and birth technologies on surrogacy and same-sex parenting. Use this page to build the argument; use those pages for the detail.

The issue links directly to the Family themes: changes to family law as a response to changing values, law reform in achieving just outcomes for family members, compliance and non-compliance (with parenting orders and child support) and the effectiveness of legal and non-legal responses.

The answer

What parental responsibility means

Parental responsibility is defined in s 61B of the Family Law Act 1975 (Cth) as "all the duties, powers, responsibilities and authority which, by law, parents have in relation to children". Three features matter for every answer:

• Each parent has it. Each parent of a child under 18 has parental responsibility, and it is not affected by the parents separating, marrying or re-marrying (s 61C). It can only be changed by a court order.
• It is about decisions, not time. Parental responsibility is the authority to make decisions about a child, especially major long-term issues such as education, religious and cultural upbringing, health, name and changes to living arrangements that make it significantly harder to spend time with a parent. How much time a child spends with each parent is a separate question.
• It is different from parentage. Parentage (who is legally a parent) is decided by birth, the artificial conception rules, adoption and surrogacy parentage orders. A non-parent, such as a grandparent, can be given parental responsibility by a parenting order, and a parenting order only removes a parent's responsibility to the extent it expressly says so (s 61D).

International law. The Convention on the Rights of the Child, ratified by Australia in 1990, frames the modern concept: the child's best interests are a primary consideration (art 3), parental guidance must be consistent with the child's evolving capacities (art 5), children have the right to express views in matters affecting them (art 12), and both parents have common responsibilities for the upbringing and development of the child (art 18). Since 6 May 2024, giving effect to the Convention is one of the two objects of Part VII of the Family Law Act (s 60B).

From rights to responsibilities

The direction of change reflects changing values: from children as the subject of parents' rights, to children as rights-holders whose interests are paramount; from a model built on the married, two-parent family to recognition of separated, blended, same-sex, donor-conceived, kinship and Aboriginal and Torres Strait Islander families; and from a focus on parental equality to a focus on safety.

The 2006 experiment and why it was reversed

The 2006 reforms responded to lobbying for greater involvement of both parents, especially fathers, after separation. Courts had to apply a presumption that equal shared parental responsibility was in the child's best interests (s 61DA), except where there were reasonable grounds to believe a parent had engaged in family violence or child abuse. If equal shared responsibility was ordered, the court had to consider whether equal time, or substantial and significant time, was in the child's best interests and reasonably practicable (s 65DAA; MRR v GR (2010) 240 CLR 461).

In practice the presumption was widely read as a right to 50/50 time. The Australian Law Reform Commission, in Family Law for the Future (Report No 135, 2019), found the provisions confusing and capable of pressuring parents, including victims of family violence, into unsafe arrangements, and recommended repeal. The 2012 family violence amendments had already tried to prioritise safety where the two "primary considerations" conflicted, which shows that reform in this area has been incremental and reactive. The full reform history is on the divorce and best interests page.

Parental responsibility since 6 May 2024

The Family Law Amendment Act 2023 (Cth) commenced on 6 May 2024 and is the most important change to parental responsibility since 1996.

• Objects. Section 60B now states that the objects of Part VII are to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child.
• No presumption. Sections 61DA and 65DAA were repealed. Whether responsibility is shared is decided on the facts, using the child's best interests (s 60CA) and the six s 60CC factors, led by safety.
• Decision-making. A court can order joint or sole decision-making about all or some major long-term issues. A joint decision-making order requires the parties to consult each other and make a genuine effort to come to a joint decision (s 61DAA). A third party, such as a school or doctor, does not have to establish that a decision communicated by one parent was made jointly.
• Culture and kinship. The definitions of "relative" and "member of the family" now include people who are related to an Aboriginal or Torres Strait Islander child according to the child's culture, recognising kinship responsibility for children. The child's right to enjoy their culture is a separate best-interests factor (s 60CC(3)).
• Finality. Section 65DAAA codifies Rice and Asplund (1979): final parenting orders can only be reconsidered if there has been a significant change of circumstances and reconsideration is in the child's best interests, protecting children from repeated litigation.
• Compliance. A new Division 13A sets out simpler consequences for contravening child-related orders. Its objects include supporting compliance, deterring non-compliance and sanctioning contraventions without reasonable excuse, and a reasonable excuse now includes a reasonable belief that the contravention was necessary to protect the health or safety of a person, including the child.
• Protecting children from litigation. Courts can make harmful proceedings orders stopping a party from filing new applications without leave.

The companion Family Law Amendment (Information Sharing) Act 2023 (Cth), also from 6 May 2024, lets courts make information sharing orders requiring police, child protection and firearms agencies to provide information about family violence, child abuse and neglect, so decisions about responsibility are made on better evidence.

The Family Law Amendment Act 2024 (Cth), mostly from 10 June 2025, is chiefly about property, but it also bears on parents' responsibilities: it added economic and financial abuse examples to the definition of family violence, requires courts to consider the housing needs of children in property orders, and created a framework for regulating children's contact services, the supervised centres used for handovers and supervised time where a parent poses a risk.

Parenting plans, parenting orders and who holds responsibility

Most separated parents never go to court. They agree arrangements themselves, often after family dispute resolution (a s 60I certificate is required before most applications).

• Parenting plans. A parenting plan must be in writing, made between the parents, signed and dated, and made free from any threat, duress or coercion (s 63C). It can deal with decision-making, where the child lives and time with each parent. It is not enforceable, but a parenting order is subject to a later parenting plan unless the court, in exceptional circumstances such as a risk of coercion, orders otherwise (s 64D). Plans give flexibility but depend on cooperation.
• Consent orders and parenting orders. Parents can file agreed consent orders, which are enforceable. Where they cannot agree, a court decides. A parenting order can be sought by either parent, the child, a grandparent, or any other person concerned with the child's care, welfare or development (s 65C), which is how kin and step-parents obtain parental responsibility.
• When the state takes responsibility. Where parents cannot keep a child safe, the NSW Children's Court can allocate parental responsibility to the Minister, a relative or another suitable person, or make a guardianship order, under the Children and Young Persons (Care and Protection) Act 1998 (NSW). See care and protection of children.

The maturing child: responsibility that diminishes

Parental responsibility is not absolute; it shrinks as the child's capacity grows.

• Gillick competence. In Gillick v West Norfolk and Wisbech Area Health Authority (1985), the House of Lords held that a child under 16 can consent to medical treatment once they have sufficient understanding and intelligence to understand fully what is proposed. The High Court adopted this in Marion's case (Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218), and also held that some "special medical procedures", such as the non-therapeutic sterilisation of a child, are outside parental authority and need court authorisation.
• Re Kelvin [2017] FamCAFC 258. The Full Court of the Family Court held that where a child is Gillick competent and the child, parents and doctors agree, court authorisation is not required for stage 2 treatment for gender dysphoria.
• Re Imogen (No 6) [2020] FamCA 761. Where a parent disputes the diagnosis, the treatment or the child's competence, an application to the court is required, and the court decides in the child's best interests. Together these cases show parental authority yielding to a competent child, with the court resolving disputes between parents. The treatment of gender dysphoria in children is contested in the community; treat these cases as evidence about who decides, not as a view about the treatment.
• The child's views. The child's views are a best-interests factor (s 60CC(2)(b)) and independent children's lawyers must usually meet the child (s 68LA). Views are weighed, not decisive, as Bondelmonte v Bondelmonte (2017) shows.

The state stepping into parents' decisions. Under the Online Safety Amendment (Social Media Minimum Age) Act 2024 (Cth), from 10 December 2025 age-restricted social media platforms must take reasonable steps to prevent Australians under 16 from having accounts. There is no parental consent exception, and there are no penalties for children or parents; platforms face civil penalties of up to $49.5 million for systemic breaches. Supporters argue it backs parents who struggled to hold the line alone; critics argue it removes a decision that belonged to families and to young people themselves. Either way, it is a clear example of law reform changing the boundaries of parental responsibility.

Financial responsibility: child support

The parents of a child have the primary duty to maintain the child (Family Law Act s 66C), whether or not they were married or lived together. For most separated parents this is enforced through the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth), administered by Services Australia.

• The formula. An eight-step formula uses both parents' incomes (after a self-support amount), their combined income, the costs of children at that income, and each parent's percentage of care. Care levels are regular care (14 to less than 35 per cent), shared care (35 to less than 65 per cent) and primary care (above 65 per cent). A parent pays if their share of care is lower than their share of combined income.
• Collection. Parents can use Private Collect (paying each other directly) or Agency Collect, where Services Australia collects and can use employer withholding and other enforcement.

The problem. A June 2025 Commonwealth Ombudsman investigation, Weaponising Child Support: when the system fails families, found about $1.9 billion in child support debt (as at 31 December 2024) and that Services Australia was not proactively identifying and responding to financial abuse. It described paying parents deliberately not making payments, not lodging tax returns and understating their income, making child support a vehicle for financial abuse. Advocates such as Single Mother Families Australia argued that the scheme allowed former partners to use it as a tool of coercion, and the government accepted that the system was being "weaponised" against parents and children.

The response. The 2026-27 Budget committed $182.6 million over four years to reform the scheme, and in September 2026 the Minister for Social Services, Tanya Plibersek, introduced the Child Support and Family Assistance Legislation Amendment (Ending Financial Abuse in the Child Support Scheme) Bill, described by the government as the first stage of the most significant child support reforms in decades. Measures announced for the wider reform package (not all of them in this first Bill) include ending the requirement that information one parent gives in an application or objection be shared with the other parent, new powers for Services Australia to stop vexatious and harassing behaviour, making employer withholding the default payment method, prosecuting more parents who refuse to lodge tax returns to avoid paying, and greater use of departure prohibition orders so that parents with large child support debts must agree payment arrangements before travelling overseas (ministers gave the example of a $10,000 debt and two overseas trips in the last couple of years). Check whether the Bill has passed before your exam; until it does, treat it as proposed law.

Diverse families: same-sex parents, donors and surrogacy

Parental responsibility follows parentage, so recognition of new family forms has changed who holds it.

• Same-sex parents. Where a woman conceives through an artificial conception procedure with her partner's consent, both are the child's parents (Family Law Act s 60H). In NSW, the Status of Children Act 1996 (NSW) s 14 presumes that a consenting female de facto partner is a parent, and that a sperm or egg donor is not, and these presumptions are irrebuttable. Both mothers therefore hold parental responsibility under s 61C. Same-sex couples have been able to adopt in NSW since 2010.
• Known donors. In Masson v Parsons (2019) 266 CLR 554 the High Court held that a known sperm donor who intended to parent and was involved in the child's life was a legal parent under the Family Law Act, giving him parental responsibility despite the NSW presumption.
• Surrogacy. A Supreme Court parentage order under the Surrogacy Act 2010 (NSW) transfers parentage, and so parental responsibility, to the intended parents, and federal law recognises it (s 60HB). Families formed through overseas commercial surrogacy usually cannot obtain parentage orders and rely on parenting orders that allocate parental responsibility but end when the child turns 18. The main exception is recent: since 1 July 2025 the NSW Supreme Court can make a parentage order after an international commercial arrangement if it is in the child's best interests. The ALRC Review of Surrogacy Laws was due to give its final report to the Attorney-General by 11 September 2026; the report must be tabled in Parliament (within 15 sitting days) before its recommendations are public, so check whether it has been released. Details are on the surrogacy page.

NSW law and parents' responsibilities

Family law decides who holds parental responsibility; NSW law sets many of its limits.

• Discipline. Section 61AA of the Crimes Act 1900 (NSW) keeps a defence of lawful correction for parents charged with assaulting a child, but only if the force was for punishment and reasonable in the circumstances. It is not available if force is applied to the child's head or neck, or anywhere else in a way likely to cause harm lasting more than a short period. Advocates and some legal academics have called for its repeal, as has happened in countries such as New Zealand.
• Responsibility for children's offending. The Children (Protection and Parental Responsibility) Act 1997 (NSW) allows a court dealing with a child's criminal matter to require a parent to attend the proceedings, and provides for parents to give undertakings or security for the child's good behaviour.
• Care and protection. When parents fail, the Children and Young Persons (Care and Protection) Act 1998 (NSW) allows DCJ and the Children's Court to intervene, using the least intrusive intervention and active efforts to keep the family together.

Non-legal responses

• Family dispute resolution and Family Relationship Centres help parents agree parenting plans without litigation, which supports cooperative, shared responsibility where it is safe.
• NGOs. Relationships Australia and other providers deliver FDR and parenting programs; women's legal services and family violence organisations argued for the 2023 repeal; shared parenting and fathers' groups opposed it, arguing it would reduce children's time with fathers; single mothers' groups such as Single Mother Families Australia campaigned for the 2026 child support reforms.
• The media. Reporting shaped public understanding, sometimes inaccurately (the 2006 reforms were widely reported as "50/50 custody"), and coverage of child support debt and financial abuse in 2025 and 2026 added pressure for reform.
• Parenting education and schools. Post-separation parenting courses, school wellbeing programs and eSafety resources support parents in exercising responsibility, including online.

Evaluating the effectiveness of responses

Judgement. The law has responded to the changing nature of parental responsibility to a large extent. It now treats responsibility as a set of duties owed to the child, allocated according to the child's best interests and safety, recognises the evolving autonomy of older children, and extends responsibility to same-sex, donor-conceived and kinship families. The 2023 reforms corrected the most serious failure of the previous regime. But the law's effectiveness is limited by how it is enforced and accessed: parenting plans depend on goodwill, court decisions are slow and expensive, and financial responsibility has been poorly enforced, as the 2026 child support reforms acknowledge. Reform has usually followed evidence of harm rather than anticipated it, and its success now depends on implementation.

In one sentence

Parental responsibility has changed from a set of parental rights into duties owed to children, allocated according to their best interests and, since the 2024 reforms, their safety, extended to diverse families and limited by children's growing autonomy, but its effectiveness still depends on access to courts and on enforcing financial responsibility, which the 2026 child support reforms seek to improve.

Try this

Q1. Outline the meaning of parental responsibility under the Family Law Act 1975 (Cth). (3 marks)

• What the marker wants. The s 61B definition, each parent's default responsibility (s 61C), and the difference between responsibility, time and parentage.

Q2. Explain how the law recognises the evolving capacity of children to make their own decisions. (5 marks)

• What the marker wants. CRC art 5 and 12, Gillick and Marion's case, Re Kelvin and Re Imogen, children's views under s 60CC and s 68LA, with an example.

Q3. Assess the effectiveness of the law in ensuring parents meet their financial responsibilities to their children. (8 marks)

• What the marker wants. s 66C and the child support formula, collection methods, the $1.9 billion debt and financial abuse, the 2026 reform package and Bill, and a judgement.