Best interests of the child

When parents or judges make decisions about parenting, the law says they can only consider the child's best interests. This means they can only think about what's best for the child, not what's best for the child’s parents or guardians.

Decisions about the following issues are all made in the best interests of the child:

  • guardianship
  • parental responsibilities (or decision-making responsibility)
  • parenting time
  • contact with a child

Section 37 of the Family Law Act and section 16(3) of the Divorce Act list the factors that you or a court must think about when you're deciding what's in a child's best interests. These factors include:

  • the child's health and emotional well-being (for example, how they'll be affected by the decision not only right now but also when they're older)
  • what the child thinks or wants, unless it's not appropriate to consider this
  • the love and affection between the child and other important people in their life
  • the child's needs, including the need for stability at their age and stage of development
  • your child's cultural identity, language, and heritage (as set out in the Divorce Act)
  • who looked after the child in the past and how well they looked after the child
  • how well the parents or any other person who wants guardianship, parenting time,  parental responsibilities, decision-making responsibility, or contact will be able to care for and meet the needs of the child 
  • whether arrangements that need the child's parents to cooperate with each other (work together) are appropriate
  • if there was any family violence, its effect on the child's safety, security, and well-being
  • whether there are any court proceedings or orders relevant to the child's safety, security, or well-being

An agreement or order is in a child's best interests if it protects the child's physical, psychological, and emotional safety and well-being. In other words, the law says that the most important thing is to keep the child healthy and safe.

Putting Charlie first

Tess and Justin learn what's most important in our short illustrated story, Putting children first.  

Illustration to introduce story
Updated on 4 April 2023