To Smack or Not to Smack? How do the Family Courts deal with Corporal Punishment?

Separated parents may experience difficulties managing their different parenting styles when co-parenting their children. This is often the case when one parent is strict with the children and the other parent has a more laid back attitude. The waters get a little murky when accusations of physical abuse are raised in the context of a family law matter. Caroline Counsel Family Lawyers can assist you to navigate these complex issues.

Physical discipline of children is a contentious issue amongst parents and is often raised in the context of family law disputes between separated spouses. While corporal punishment is usually viewed in a negative light, it is not illegal for parents to use reasonable corporal punishment when disciplining children. However, it is sometimes a slippery slope between “reasonable” punishment and physical abuse.

In the recent Family Court case of Yallop & Yallop [2018], the Mother had accused the Father of physically abusing the children and stated that there was a risk of harm. Both parties admitted to using an instrument to hit the children but the Mother eventually conceded that the children were not at risk while in the Father’s care.

After hearing the evidence, the Court made Orders providing that “each party is restrained from causing or permitting the infliction of corporal punishment upon the children.” It is not uncommon for Courts to make orders restraining parents from using corporal punishment when accusations about physical punishment are made in the course of proceedings. In more serious cases, the Court may also to decide to limit a parent’s time with the children or ensure that protective measures are in place. This is because one of the Court’s primary considerations is “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”

In the Family Court case of Grattan & Bancroft [2012], there were serious allegations made by the children regarding the fact that they had been physically abused by the Father and his partner. As the allegations were investigated throughout the course of proceedings, it was found that the children had not been abused but that the Father had indeed used corporal punishment to discipline them.

The evidence also suggested that both parties had used corporal punishment in disciplining the children while they were together and it was not a source of dispute previously. The Mother admitted to smacking the children and the Father admitted to “boot[ing] on the backside”.

Importantly, paragraphs 95 – 97 of the judgment provide as follows:

  • Corporal punishment  administered to a child is potentially an “assault”, and therefore also potentially “abuse” under the Act, because it is conduct which generally entails intentional or reckless inducement of the punished child to apprehend immediate and unlawful violence (see Knight v R (1988) 35 A Crim R 314). The actual infliction of such violence is technically a “battery”, but ordinarily every “battery” includes an “assault”.
  • However, at least in NSW, depending on the circumstances, lawful correction of a child is a legitimate statutory defence to a charge of assault (s 61AA Crimes Act 1900 (NSW)). In particular, the physical force applied to the child must be reasonable having regard to the age, health, and maturity of the child and also the nature of the alleged misbehaviour (s 61AA(1)(b)) and the application of physical force is not reasonable if it is applied in such a way to cause harm to the child that lasts for more than a short period (s 61AA(2)(b)). If corporal punishment is not an “assault”, neither is it “abuse”.
  • Suffice to say, such observations are not intended to legitimise corporal punishment of children, which most compassionate adults would regard as unwise even if not unlawful. Rather, it is an explanation for why corporal punishment of a child does not automatically constitute “abuse” under the Act.

From the above, it is clear that corporal punishment will be taken seriously by the Family Courts, even if the action itself may be legal from a criminal perspective. In this specific case, the Court again made an injunction which prevented both parents from using corporal punishment.

If you have concerns about how your children are disciplined by your former partner, we recommend that you make an appointment to speak to one of the lawyers at Caroline Counsel Family Lawyers for tailored advice about your situation.

The information in this blog does not constitute legal advice and cannot be relied upon by you. If you require advice specific to your situation, you must contact Caroline Counsel Family Lawyers for legal advice. The contents of this blog are relevant as at 13 September 2018.  We recommend you obtain specific advice relevant to you and your family’s situation.

By Michelle Petrovski, Lawyer


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