A recent Supreme Court case has thrown a new light on the
controversial issue of whether it's legal for a parent to smack
their child in order to administer discipline.
It began with a father in South Australia delivering three slaps
to his 12 year old son, twice on his shorts and once on his bare
thigh that left a redness on the skin but no bruise.
The father shared custody with his estranged wife, the boy's
mother, and he administered the disciplinary smack after the boy
threw a tantrum at lunch and showed disrespect to his father and
The mother reported the incident to police, and the father was
convicted of assault in Adelaide Magistrates Court. He appealed to
South Australia's Supreme Court where the conviction was
The judge said the original trial was misdirected on the issue
of parental correction. Justice David Peek said the smack was
"not unreasonable" for the purpose of correcting
The judge took into account the father had tried to instill
self-discipline in his son by giving him 'time out' , but
it didn' t change his behavior.
"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," Judge Peek
"Indeed, the very suffering of temporary emotion may be
calculated to impress the child and correct the behaviour, just as
much as the accompanying physical discomfort.
"Some level of pain is permissible, and in the present case
there was little. The mere existence of red marks caused by the
punishment does not prove unreasonable correction."
Solicitor Anneka Frayne from Stacks Law Firm said the Supreme
Court decision was interesting in law, but stressed that while many
other countries have instituted legal bans on corporal punishment
of children including New Zealand, Germany, Italy, Hungary and
Greece, there is no anti-smacking law in Australia.
However the way in which a smack is administered is covered by
law. In NSW the laws of parental smacking are defined in Section
61AA (1) & (2) of the Crimes Act 1900.
"In NSW the defence of 'lawful correction' says
parents can apply physical force to punish their child so long as
it is 'reasonable' in the circumstances. Obviously
what's reasonable is not always clear cut and can be open to
different interpretation by courts," she said.
"The law gives some guidance though. It says it's never
reasonable to apply force to a child's head or neck (except
where the force applied is 'negligble' ) or to apply any
force that causes harm for more than a short period. Obviously
it's best not to smack your child but if you feel that it's
necessary to change their behaviour, be mindful of the law and
don't overstep the mark."
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Sect.117 can deal with false statements and knowingly making false allegations of violence could justify a costs order.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).