Australia: Smacking children and family law - What is okay and what is not?

Last Updated: 9 August 2017
Article by Simon Creek

Smacking children and Family Law – What is okay and what is not?

It's safe to say the landmark decision in the "Smacking Grandparents Case" has received a lot of attention Australia wide.

Case Summary

The grandparents were successful in retaining custody of the 9 year old after the Department of Family and Community Services ("FACS") tried to remove the child from their care for the following reasons:

  • The child was smacked; and
  • His toys were removed as a form of discipline.

The presiding Magistrate awarded legal costs to the grandparents. In the judgment, the Magistrate said that "although (the grandparents') parenting may not have been perfect or adhere strictly to FACS policies there was no cogent evidence that the child, Tyson was at risk of significant harm, or indeed at risk of any harm from his maternal grandparents."

Family Law View

In Family Court proceedings, judges can make orders restraining parents from using physical discipline to discipline children.

The reason for this can be seen in the case of Geary & Maddigan & Anor [2016], where "it was common ground between the parties that they both used corporal punishment to manage the children's behaviour in the past [...]. The difference of opinion between the parties, therefore, was not the use of corporal punishment, but rather its proportionality".

In this case, the Family Court noted that "although community standards may now deem punishment in that form to be obsolete, it is still not necessarily "abuse" as defined in section 4 of the Family Law Act 1975. It is only abusive if it is disproportionate to the misbehaviour sought to be corrected".

What does the law suggest?

In Australia, corporal punishment by a parent or carer is defined as the use of physical force towards a child for the purpose of control and/or correction.

In Western Australia, section 257 of the Criminal Code Act 1913 states that it is lawful for a parent or a person in the place of a parent to use, by way of correction, toward a child or pupil under his care, such force as is reasonable under the circumstances. This is a defence to an allegation of assault under the Criminal Code.

What this means is that essentially, 'smacking' by a parent or carer is lawful and is not considered child abuse provided that it is "reasonable". However, what is reasonable is very debateable.

The only Australian State to provide guidance on what is "unreasonable" is NSW. Under NSW legislation "force applied to any part of the head or neck of a child or to any other part of the body that results in bruising, marking or other injury lasting longer than a "short period" is unreasonable".

Is 'reasonable' discipline a defence to assault?

Last year, a South Australian Supreme Court Judge quashed a father's conviction of aggravated assault for smacking his 12 year old son (Police v G, DM [2016] SASC 39). This case was important in terms of:

  • what matters to take into account when assessing what is 'unreasonable' in disciplining a child; and
  • what the Court considers to be the appropriate avenue for cases involving the discipline of children.

The Hon. Justice Peek held that the manner of correction must not be unreasonable. Matters to be taken into account in making his assessment included:

  • whether the child is sufficiently old to be physically corrected;
  • 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.

Justice Peek stated that the father's smacking was not unreasonable and was genuinely intended to correct the child's misbehaviour.

He also held 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 terms of an appropriate avenue to resolve such allegations, Justice Peek stated that the appropriate forum for cases relating to the discipline of children was the Family Court and not the Magistrate's Court.

What does the Australian public say?

Interestingly, the smacking grandparents case received a lot of attention and the grandparents received an overwhelming amount of support from the public.

The Daily Telegraph's article on the Smacking Grandparents Case allowed a polling option for the public to select a 'yes' or 'no' for the question "is smacking a reasonable way to discipline children?".

A remarkable 90% of the 1,100 voters said 'yes'.

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.

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Simon Creek
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