Family Law Blog

Smacking - Punishment or punishable?

Posted by Karina Ralston on 31 Mar 2016

A Supreme Court move has reignited the debate as to whether parents should be able to physically discipline their children, after the Court quashed a decision convicting an Air Force pilot of aggravated assault for smacking his 12 year old son.

Many Baby Boomers and Generation X will remember receiving a smack on the behind or a clip across the ear in the event they misbehaved. However with many parents electing to use alternate methods of discipline such as the ‘naughty corner’ or the suspension of privileges such as television and mobile phones, most children of modern day parents haven’t experienced this form of punishment.

One reason that parents may choose to utilise alternate forms of discipline is that given the increasing awareness and attention on the issue of family and domestic violence, in some instances a parent who physically disciplines their child risks being charged with assault.  

The Crimes Act (NSW) provides for a defence of lawful correction, stating that where a person has been charged with applying physical force to a child (such as assault), the charge can be defended if the force was applied for the purpose of punishing the child but only if:

  • The physical force was applied by a parent (in the case of separated parents, this means the person/s with parental responsibility for the child) or a person acting for a parent (this can include a step-parent, de facto partner of the parent, a relative of the parent, or a person  who has been entrusted with the care and management of the child by the parent - provided that person has been authorised by the parent to use physical force to punish the child) and
  • The force was reasonable in regard to factors including the age, health and maturity of the child, and the nature of the misbehaviour.

The law is clear to say that force is considered unreasonable if it is applied to any part of the head or neck, or any other part of the body in such a way that it is likely to cause harm to the child for more than a short period.

Allegations by parents in family law proceedings that one parent has physically disciplined the child/ren is not uncommon and it is important to note that, despite the position  adopted by state law, the Family Court and Federal Circuit Court of Australia regularly inform parties that no form of physical discipline is tolerated. It’s not uncommon for the Court to make Orders restraining parties from physically disciplining children and the use of physical discipline by parties will be considered by the Court (as one of many factors) when determining parenting arrangements.