The Law on Punishing Your Child Under the Defence of Lawful Correction in NSW

By Sahar Adatia and Jimmy Singh.

 

On 3 July 2019, a 35-year-old mother was convicted of common assault after smacking her daughter with a wooden spoon.

Referred to only by her first name, Tania faced a Perth court over the incident, which occurred in her home in Ellenbrook last year.

According to her lawyer, the mother hit her nine-year-old child in what was understood as a “moment of frustration”.

 

How the Assault Happened

Police prosecutors said the mother hit her child with a “bruising force” after the child took old hamburger meat from the fridge and ate it.

Tania had warned her daughter not to touch the meat as it was kept for the dogs and had worming medicine inside it which was meant for pets.

“My daughter actually took out some food that I had in the fridge that was meant for the dogs the next day, and it had medication for the dogs,” Tania said.

“I woke up in the morning she was nice and quiet just sitting in the theatre room eating away these burgers that were supposed to be for the dogs.”

When the mother saw her child consuming the hamburger mince, she became flustered and hit her with the wooden spoon, saying she “panicked” fearing she would be poisoned.

She said she had been having “a lot of difficulties with her behaviour”.

 

“Unnecessary Force” in Strike Leads Mother to $750 Fine

During Tania’s sentencing, the Magistrate found the mother used “unnecessary force” in the strike.

She was handed down a $750 fine and a spent conviction.

“You struck your nine-year-old with a wooden spoon and by your plea you accept that the force you used was more than necessary to correct her,” he said.

“I’m satisfied this is unlikely to happen again.”

The mother’s lawyer, Stephen Preece, told the court the woman had no previous criminal record. Furthermore, her daughter had ongoing behavioural issues including ADHD and was being treated by a paediatrician.

 

Mother Speaks Out: Defends Hitting Daughter Despite Conviction

While Tania pleaded guilty, admitting to smacking her daughter, she still defended her actions, denying the hit was as hard as prosecutors claimed.

She said the past nine months since the incident left her distressed and crying on most days. However, she said she “wouldn’t have done anything differently”.

“I haven’t been the same since, shaking, mortified,” she said.

“There are so many other people out there who deserve to go through what I’ve gone through and they’re sort of putting all their time and effort onto me.”

Tania also expressed she still believed in disciplining children.

“I believe that discipline helps our society and our children, they’ve got to learn respect and integrity and you just can’t get away with doing naughty stuff,” the mother said.

“How do we do that now these days?”

 

Is Smacking Considered Parenting or a Crime?

In Australia, corporal punishment by a parent or carer – defined as the use of physical force towards a child for the purpose of control or coercion – is lawful and is not considered as child abuse, provided it is “reasonable”.

As the Australian Institute of Family Studies advises, corporal punishment is designed as a disciplinary technique applied to the body, with the “intention of causing some degree of pain or discomfort, however light”. This includes smacking, spanking, or hitting.

Where a person is charged with assaulting his/her child as a result of the application of physical force, the person accused of the assault will have a defence of lawful correction available if the force applied was applied with the aim of punishing the child, if:

  1. The physical force was applied on the child by either the child’s parent or a person acting for a parent of the child (i.e. step-parent, de facto partner, relative of a parent of the child or child carer who have been authorised by the child’s parent to use physical force as punishment); and
  2. The force that was applied on the child was reasonable force in light of the child’s age, health, maturity, other characteristics of the child, nature of the misbehaviour and other circumstances.

This is outlined in section 61AA Crimes Act 1900 (NSW).

That said, the consensus as to what constitutes “reasonable” differs between jurisdictions.

Common measures of “reasonable” physical punishment are related to:

  • the age and size of the child;
  • the method of punishment;
  • the child’s capacity for reasoning (i.e., whether the child is able to comprehend correction/discipline); and
  • the harm caused to the child.

New South Wales is the only state in Australia with a legislative definition as to what is deemed “unreasonable”.

Under section 61AA(2), without limiting what circumstances constitute an unreasonable application of force, physical force will be unreasonable if the force is applied to the child’s:

  • head or neck area; or
  • any other part of the body of the child if the force is applied in a way it’s likely to cause harm to the child lasting for more than a short period.

The exception to the above is if the force could reasonably be considered trivial or negligible in all the circumstances.

Research suggests that worldwide approximately six in ten children aged between 2 and 14 years are subjected to corporal punishment by a caregiver.

For purposes of this defence a child is a person who is under the age of 18.

The Law on Common Assault in NSW

Common assault is an act in which a person intentionally or recklessly causes another person to apprehend immediate and unlawful violence or causes injury to that person without consent. This can include strikes, touches, or applies force to another, without consent.

In NSW, common assault is a crime. This is reflected in section 61 Crimes Act 1900 (NSW).

This offence carries a maximum penalty of up to 2-year prison and/or $5,500 fine.

It states:

“Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.”

This offence can also be committed without applying any force.

A person commits this offence recklessly if the accused person commits the common assault with the realisation as to the likelihood of causing ‘immediate fear or injury’ to the victim.

For the offence to constitute common assault, the injury caused must not be considered ‘actual bodily harm’.

For an injury to be considered ‘actual bodily harm’ it must be described as any hurt or injury which has interfered with the victim’s health or comfort, which includes bruising. It does not include fear. Actual bodily harm is harm described as more than merely transient or trifling, but not permanent.

The offence of assault occasioning actual bodily harm is a more serious offence carrying heavier penalties.

Some defences that apply to a common assault offence include:

  • The defence of lawful correction outlined earlier;
  • Where the alleged assault was unintentional, inevitable part of everyday life or accepted by the community;
  • Where the assault occurred in the context of self-defence to protect yourself, someone else or your property;
  • Where the alleged victim was unaware of the alleged assault;

Where a lawful arrest was taking place.

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