By Zeb Holmes and Ugur Nedim
The Family Court of Australia examined the distinction between lawful physical discipline of a child and unlawful abuse in a recent child custody dispute.
The case involved a father who beat his two eldest children with a cricket bat, but argued he should still be allowed to see his six-year-old son.
The child’s mother argued that her estranged husband should not have any contact with their son.
The Court heard evidence that both parents had smacked the boy, but that the child was at risk of serious physical abuse if the father was allowed unsupervised contact.
The Defence of ‘Lawful Correction’
Section 61AA of the NSW Crimes Act permits a parent to physically discipline their child in certain limited circumstances.
This defence of ‘lawful correction’ is available against a charge of assault in circumstances where:
- Force was used by a parent or a person acting for a parent of the child; and
- It was used to correct or discipline of the child; and
- It was reasonable having regard to the physical and mental characteristics of the child, what the child did or other circumstances.
The force will never be reasonable if:
- It is applied to the neck or head of the child unless it was trivial or negligible, or
- It is likely to cause harm to a child that last for more than a short period.
Evidence in Court
The Family Court heard testimony from the older two boys that from around the age of 6, their father hit them with a cricket bat or a broken broom handle, causing them to scream in pain and leaving bruises and welts. The boys were later taken into state are.
Judge Stewart Auston characterised the father’s acts as “cruel brutality”. At the same time, His Honour acknowledged that:
“Despite modern society’s changing opinion about the morality of corporal punishment of children, the law of NSW still envisages the legitimate administration of physical discipline by an adult to a child, subject to certain constraints”.
While accepting that the older boys were troubled and difficult children, he noted that “… an extraordinarily difficult parenting challenge was not an excuse for the severity of their treatment”, concluding that the acts amounted to “criminal assaults”.
Despite those findings, His Honour decided that it was in the best interests of the youngest child to allow the father to have unsupervised visits. In making that determination, the judge took into account that the father had undertaken parenting classes, that the youngest child was not as “challenging” as his older brothers and that the father was “not so unfit as a parent that he is utterly incapable of safely caring for the child for short stints”.
Internationally
Sixty nine percent of Australian parents admit to disciplining their children through smacking.
The position of the United Nations is that physically disciplining children may contravene the UN Convention on the Rights of Children – indeed, corporal punishment has now been outlawed in 33 countries, including New Zealand, where 90% of adults believe limited physical discipline should still be allowed.
Professor Oates of the Royal Australian College of Physicians (RACP) has called for parents to use “more effective, nonviolent-methods of discipline.” Research from the College suggests has linked physical punishment to long-term mental and behavioural issues.
Many parents, however, feel they know what’s best for their kids, and that the main issue is proportionality.
Surely the Judge should have been asking for more evidence that the father had addressed the problems with his agression other than undertaking parenting classes. The man obviously has major problems with agressive violence. What has he done to address this? Did he attend any anger management courses? Was there any psychiatric evaluation? The Judge seems to have gone easy on the father in this case. He hasn’t taken into account the safety of the boy at all. Very disappointing result.