Comparing the Best Interests of Children in the Family Law Act 1975 and the Children, Youth and Families Act 2005

Those involved in both family law and children’s law will eventually face the idea that a child’s best interests are the top priority in decision-making. But what happens when the law is divided on what truly constitutes a child’s best interests?

The “Best Interests of the Child” is a fundamental legal principle in Australia, guiding courts and administrative bodies in decisions affecting children’s rights, welfare, and family arrangements. This principle is embedded in both federal and state legislation, with the Family Law Act 1975 (Cth) (“FLA”) applying nationwide in family law disputes and the Children, Youth and Families Act 2005 (Vic) (“CYFA”) governing children’s law in Victoria. While both Acts aim to prioritise the child’s best interests, their differing scopes, objectives, and mechanisms can cause confusion for families and practitioners alike.

Legislative Context

The Family Law Act 1975 deals with issues arising from family breakdowns—most notably parenting arrangements and parental decision-making after separation. The  Federal Circuit and Family Court of Australia determines matters under this legislation. The FLA is primarily concerned with private disputes between parents or carers.

In contrast, the Children, Youth and Families Act 2005 authorises the Department of Families, Fairness and Housing to intervene when a child is at risk due to abuse, neglect, or family dysfunction. The CYFA also addresses broader issues such as child protection proceedings, out-of-home care, and youth justice, which are determined in the  Children’s Court of Victoria.

This difference in jurisdiction informs how each Act approaches the concept of “best interests.” The FLA often seeks to balance competing rights and responsibilities within the family unit. At the same time, the CYFA focuses on the child’s safety, stability, and developmental needs, often in the context of state protection.

The Best Interests Principle: Family Law Act 1975

Section 60CA of the FLA mandates that “a court must regard the best interests of the child as the paramount consideration” in all parenting decisions. This is expanded in section 60CC, which sets out two primary considerations and several additional considerations to guide the court:

Primary Considerations:

1. The benefit to the child of having a meaningful relationship with both of the child’s parents; and
2. The need to protect the child from physical or psychological harm, including exposure to abuse, neglect, or family violence.

Importantly, if there is a conflict between the two, the need to protect the child prevails.

Additional Considerations include:

• The child’s views (depending on age and maturity),
• The child’s relationship with each parent and other significant people,
• Each parent’s capacity to provide for the child’s needs,
• Cultural and linguistic background, particularly for Aboriginal and Torres Strait Islander children,
• The likely effect of changes in the child’s circumstances.

The overarching goal is often to promote shared parental responsibility unless doing so would harm the child. The FLA operates with the presumption (rebuttable) that it is in the child’s best interests for both parents to have equal shared parental responsibility.

The Best Interests Principle: Children, Youth and Families Act 2005

Under the CYFA, the best interests principle is laid out in section 10, which states that “the best interests of the child must always be paramount” in decision-making. However, unlike the FLA, this section is more explicitly child-centred, placing greater emphasis on protection, development, and stability.

Key considerations under the CYFA include:

• The child’s safety, stability, and developmental needs,
• The capacity of the child’s parents or carers to meet those needs,
• The child’s wishes and views, given due weight according to age and maturity,
• The importance of continuity and stable care arrangements,
• The importance of maintaining relationships with family, culture, and community, especially for Aboriginal children

The CYFA recognises that children are individuals with unique developmental paths, often vulnerable due to abuse, neglect, or systemic disadvantage. Therefore, decisions are usually precautionary or protective, allowing for more substantial intervention—including removal from parental care—when necessary.

Conclusion

Although both the Family Law Act 1975 and the Children, Youth and Families Act 2005 enshrine the “best interests of the child” as the paramount consideration, they differ significantly in context, priorities, and implementation. The FLA seeks to mediate private disputes post-separation with a view toward ongoing parental involvement. The CYFA, by contrast, is focused on safeguarding vulnerable children, often requiring state intervention and protective measures.

Understanding these distinctions is critical for legal practitioners and families.
At Resolve Conflict, we can provide expert advice on how to effectively advocate for you and your family in navigating these competing principles, tailored to each specific jurisdiction.

If you require any further information or assistance, please contact our professional team at Resolve Conflict.