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Corporal Punishment and Parenting Matters

The corporal punishment of children has long been a contentious subject in Australia. Some people insist that the occasional smack is necessary to discipline a child, while others believe that any physical punishment intended to cause pain constitutes assault. In Australia, a parent facing assault charges for corporal punishment can use the defence of “reasonable chastisement”. However, even a parent who could legally defend their conduct is likely to find their behaviour heavily scrutinised during a parenting proceeding in the Federal Circuit and Family Court of Australia (“the court”) or the Family Court of Western Australia).

Corporal punishment

Corporal punishment is the application of physical force that causes a person to experience discomfort or pain with the purpose of behavioural correction. It commonly takes the form of spanking, smacking, slapping or hitting with a hard object such as a belt or cane. Corporal punishment can also include forcing a child to stay in uncomfortable positions for a protracted period.

Critics of corporal punishment of children emphasise the adverse effects on the child’s physical and psychological wellbeing and the evidence that such experiences can contribute to anti-social behaviours and mental health issues in adulthood. Additionally, critics point out that there is no evidence that corporal punishment is positively correlated with either immediate or long-term compliance on the part of the corrected child, which would seem to defeat the alleged purpose of the physical correction.

Historically, Australian courts have reflected community standards in accepting physical chastisement of children as a normal part of parenting. However, in recent decades, community acceptance of corporal punishment has decreased, and this has been reflected in a less receptive view displayed by the justice system. The court, in particular, is increasingly aligning its opinions with the United Nations Convention on the Rights of the Child, which states that children have a right to be protected from harm, including physical punishment.

Legal definition

In Australia, using physical force to punish a child is considered assault. However, both legislation and Australian common law establish that a parent has a lawful defence against a charge of assault if the physical force was intended to deliver chastisement to a child. For instance, the Crimes Act 1900 (NSW) was amended in 2002 to create specific guidelines to define lawful correction. Under this law, courts consider whether physical punishment is reasonable given the following factors:

  • The child’s age, maturity, health and other features;
  • The nature of the child’s misbehaviour and whether the use of force was reasonable in the circumstances and not likely to cause significant harm; and
  • Any further circumstances that are deemed relevant.

Under this legislation, there is no justification for striking the head or neck of a child, or striking a child in a way that could cause lasting harm.

When a parent uses unreasonable force against their child, they can be charged with assault, and whether or not they are found guilty, there can be consequences for the parenting arrangements of the child. As there is evidence that corporal punishment has lasting harmful effects on a child, this has an undeniable impact on the assessments of the best interests of a child during a parenting proceeding. As such, lawyers advise parents involved in parenting matters to avoid all applications of corporal punishment to their children.

Case study

As the court pointed out in Dahlmans & Dahlmans [2021], it is both “unwise and foolhardy for any litigant parent to believe a continuance of physical discipline will not draw from the other party … an accusation of abuse or family violence”. In this case, the court ordered that the father should have only supervised time with his children because of the father’s physical discipline of the children. Corporal punishment was a central issue in the proceeding, with the father acknowledging that his loss of control during the administration of punishment may have made the mother and children fearful. The mother had already obtained an injunctive order preventing the father from physically disciplining the children, but as the court pointed out, this did not protect the children from their fears of their father’s behaviour. The court noted that the father was able to rely on the defence of lawful correction available to him in the Crimes Act, but he could not rely on such a defence to escape the mother’s reproach or the children’s fear of him. Ultimately, these factors were significant to the question of the best interests of the child, even if the acts of the father did not rise to the level of an unjustified criminal act.

The family law team at Armstrong Legal can assist you with any questions about how corporal punishment might impact your family law matter. Please contact the team or call 1300 038 223 for any legal assistance.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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