The use of corporal punishment in response to problem behaviour in children is an age-old practice that is still often resorted to by modern parents. Its pervasiveness is reflected in our legal system- in every jurisdiction in Australia, there is a defence to conduct that would otherwise amount to assault if it were directed at any other member of the community except our children.
In Victoria and other states, someone is not guilty of the crime of assault if they are ‘reasonably’ correcting the behaviour of a child. What’s reasonable? As lawyer and commentator, Duncan Fine noted in a recent article on the issue in the Age, “beating with a belt causing bruising to the face, punching, kicking and hitting with wooden spoons, chains and cricket bats” have all been held to be “reasonable” when it comes to correcting children’s behaviour.
Whilst some might find this quite shocking, others will find it commonplace, and clearly the Courts over time have not found this conduct to be criminal. Further, research into community attitudes seems to point to the general acceptance of the practice. For example, 2006 Research Conducted by the Australian Childhood Foundation found that 45% of respondents believed it was reasonable to leave a mark on a child as a result of physical punishment. Two out of five (41%) believed smacking a child is effective in shaping his or her behaviour, and when presented with the statement that “it is sometimes necessary to smack a naughty child”, 69% agreed.
The practice of corporal punishment of children brings up interesting questions in the family courts, which are concerned with the best interests of children and the amelioration of risk, including the risk of family violence. What would a family court make of a parent who, say, hit their child with a cricket bat, albeit in the name of correcting some seemingly problem behaviour?
Family violence under the Act has a deservedly broad definition, and includes being the victim of an assault, or witnessing an assault on a family member. However, what if otherwise violent conduct by a parent does not meet the criminal standard for assault?
The reality is that most Judges would be concerned about the parenting capacity of someone who engages in that kind of conduct, and those concerns are likely to affect the Court’s assessment of what arrangements, on the evidence, are going to be in the best interests of the child. Complaints of ‘excessive discipline’ in family law proceedings are reasonably common, and in many cases, Courts are asked to weigh the benefits of different parenting styles which may be equally accepted by different segments of the community. In Courts increasingly reliant on the specialist knowledge of psychiatrists, psychologists and other child development professionals, expert evidence holds significant sway with a judiciary ultimately trying to adjudicate human problems to a legal standard.
If you would like to speak to a lawyer about potential child abuse and other family law matters, contact us today. We are a Family law practice in Melbourne.
Duncan Fine, “Violence against kids not a family affair”, The Age, 8 June 2017
Tucci, J. et al (2006), Crossing the Line: Making the case for changing Australian laws about the physical punishment of children, Ringwood, Victoria, Australia: Australian Childhood Foundation