The question of whether a parent’s use of physical punishment against their children goes beyond the acceptable level to be considered a criminal assault is an issue that arises often in both the Family Court and Local Court.
Our team of Sydney and Melbourne based family lawyers have provided below a brief overview of the law as it relates to lawful correction along with a number of cases that illustrate the courts approach to this complex issue.
What the law in NSW says about ‘lawful correction’ of children?
Section 61AA of the New South Wales Crimes Act establishes when a person charged with assault can raise the defence of lawful correction.
This defence is available if the accused can establish:
The force was applied by the parent of the child or by a person acting for a parent of the child;
The force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances.
Unless the force could reasonably be considered trivial or negligible in all circumstances, it is not considered reasonable for force to be applied:
To any part of the head or neck of the child; or
To any other part of the body of the child if it is likely to cause harm to the child that lasts for more than a short period.
What is considered ‘reasonable’ use of physical force?
The issue then arises as to what ‘reasonable’ force against a child constitutes. The Courts have considered this question in a number of cases.
Here is a quick snapshot of some of the responses the Courts have provided in determining this issue.
Police v G, DM [2016] SASC 39
In this case, after the 12-year-old son had been continuously and seriously misbehaving (throwing tantrum over not getting food, slamming doors, rude behaviour, ignoring instructions, etc) the father smacked his son’s thigh on the shorts three times with his hand. The child said that his leg did not bruise, the pain hurt a little bit for a day, but was not serious, and the redness lasted for two days. He returned to school the next day and played basketball that evening.
On these facts, the appeal court found the actions of the father were for the purpose of parental correction and was not unreasonable and therefore discharged the conviction.
In coming to this decision, the Court noted that matters to be taken into account when determining the reasonableness of a correction include:
“whether the child was sufficiently old to be physically chastised; the child’s sex and physical development; whether correction was administered by hand or with an implement; the nature of the physical correction; and the nature of any injury or pain produced. In considering those matters, the acknowledged starting point is that a defence of reasonable parental correction exists and that the suffering of some temporary pain and discomfort by the child will not transform a parent attempting to correct a child into a person committing a criminal offence”
In its decision, the Court also referenced the Australasian Parliamentary Counsel’s Committee’s Model Criminal Code, noting that reasonable conduct must be “for the purpose of discipline, management or control of the child, and deemed the causing of harm or the threatening to cause harm that lasts for more than a short period and the causing of harm by use of a stick, belt or other object other than an open hand not to amount to reasonable correction”.
Brody & Denton [2009] FamCA 993 (22 October 2009)
In this case, the father’s children were 10 and 11. At various times throughout their childhood the father would punish the children by hitting them on the backside with a drumstick for misbehaving.
The Court found that this level of discipline amounted to abuse, stating:
“I am satisfied that the father inflicted punishment upon his children from time to time, which has involved his use of implements, and which resulted in bruises and welts being occasioned to the punished child. When that occurred, in all probability, it amounted to an assault which was not defensible on grounds of lawful correction. It was therefore “abuse” within the meaning of the Act. It is immaterial that the father genuinely believed that such punishment was excusable as legitimate discipline”
Bergeron & Bergeron [2022] FedCFamC2F 644
In this case the mother raised allegations of family violence perpetrated by the father against herself and the children. The Court concluded however that whilst the father did admit to smacking the children’s bottoms at around the age of 12-13 as punishment for misbehaving, this conduct was by way of lawful parental correction under s 61AA.
McRae v Giucci [2019] ACTMC 32 (24 June 2019)
In this case, the father’s son started swearing expletives at the father. The father then stormed at the son, yelled at the son and swung at his head with a semi closed fist hitting him multiple times around the eye and temple area. The Court found that in these circumstances the father’s actions were not reasonable and the defence of lawful correction was not available.
Lumb v Police [2008] SASC 198.
In another South Australian case a childcare worker was convicted of assault of a four-year-old child in her care. The Court found that the child had been refusing to come inside when instructed to do so by the appellant who then picked the child up roughly, carried her by her arms with her legs off the ground, and dropped her from a height of between about 18 inches to two feet on two occasions, causing her to land forcefully.
On appeal, the Court held that the force was not reasonable, “bearing in mind the age of the child, the behaviour sought to be addressed, namely the child’s movement, the nature of the admonition and the appellant’s behaviour”
What can you do if you are concerned?
Whilst these cases outlined above provide a helpful guide to what the Courts have decided in the past, it should be noted that these sort of cases will often turn on the facts of each individual case.
The defence of lawful correction is a highly complex area of family law.
If you or someone you know is concerned about the actions of a parent against their child or you have been accused of assault and you think this defence may be relevant to you, it is important that you discuss this with our team of top family lawyers.