Corporal Punishment and Parenting Matters

Corporal punishment, or physical discipline of a child, remains a contentious issue in Australia. Some parents believe that an occasional smack is a necessary tool for disciplining children, while others contend that any form of physical punishment designed to inflict pain amounts to assault. In fact, corporal punishment is by definition assault, but one that can be defended by claiming “reasonable chastisement”. If chastisement of a child exceeds what is reasonable, a parent will face legal consequences, yet the concept of reasonableness can be a difficult one to define. In addition, a parent’s approach to disciplining their child is a significant consideration in parenting matters before the Federal Circuit and Family Court of Australia or the Family Court of Western Australia.

Corporal punishment

Corporal punishment is the use of physical force to cause someone to feel pain or discomfort with the intent to correct behaviour. Most often, physical discipline takes the form of slapping, smacking, spanking or hitting with a belt or cane. In Australia, criminal law recognises a parent’s right to discipline their children, including the use of reasonable physical correction, provided that it is administered within legal boundaries. These boundaries are set by common law principles and state and territory legislation. Each jurisdiction in Australia has its own provisions relating to corporal punishment. For example, in New South Wales, Section 61AA of the Crimes Act 1900 allows parents to administer corporal punishment that is “reasonable” given the child’s age, maturity, health and other characteristics, as well as the nature of their misbehaviour. The definition of reasonable punishment is open to judicial interpretation and depends on all relevant factors. Importantly, there is no defence for striking a child in the head or neck or any other way that causes lasting harm.

Corporal punishment in family court matters

Historically, the family courts have reflected community standards by accepting reasonable physical discipline as part of normal child rearing. Modern research has found that corporal punishment has a detrimental effect on a child’s physical and psychological welfare and can contribute to mental health issues and anti-social behaviour in adulthood. As community views on corporal punishment have altered in recent decades, this too has been reflected in the attitude of the family courts, with an increasingly critical approach to the use of physical force against children.

The recent sweeping amendment of the Family Law Act 1975 has changed the way the family courts approach parenting decisions, from an emphasis on the benefit of the child having a meaningful relationship with both parents, to a prioritisation of the child’s mental, physical and emotional safety and wellbeing above all other considerations. This definition of the best interests of the child guides all judicial decisions in parenting proceedings. As the Family Court emphasised in Dahlmans & Dahlmans [2021], a parent involved in a contested parenting matter faces the likelihood of being accused of family violence or abuse if they continue to use physical discipline against their children.

Best interests of the child

If a party to the proceeding raises concerns about the use of physical discipline, the family courts will evaluate how corporal punishment impacts the best interests of the child with a particular focus on the follow factors:

• Safety of the child

The child’s safety is the primary consideration in parenting matters. As such, if corporal punishment is excessive, harmful, or deviates from modern parenting norms, it can weigh heavily against a parent’s suitability to have unsupervised contact or primary care of the child.

• Positive Parenting

The courts will consider how effectively each parent engages with positive parenting and non-violent discipline strategies that foster a safe and nurturing environment. The court may see parenting styles that rely on corporal punishment as outdated and detrimental to the child’s development.

• Community Standards

The courts will consider what form of discipline is considered reasonable in the parent’s community, but will still prioritise the child’s safety and well-being above all else.

Case study

Injunctions were made against the use of corporal punishment in a recent parenting matter before the Federal Circuit and Family Court of Australia. In Tahan & Radlov [2024], Justice Jenkins ordered that though both parents would exercise parental responsibility, the children would live exclusively with their father. While there were half dozen matters at issue in the proceeding, one of the father’s serious concerns was that the mother resorted to inappropriate physical discipline because she struggled to impose boundaries on the children.

Both parties accused each other of physically disciplining the children. However, the mother did not claim that the father posed a danger to the children, while the father argued that there was an unacceptable risk to the children if they spent extended time in the care of the mother. The father submitted affidavit evidence that one of his children had alleged the mother smacked her “all over”, and when asked, the children reported that the mother was angry, yelled, swore and hit the children during “most visits”. During the observation session, the social worker witnessed the mother struggling to cope with the children’s behaviours, appearing “out of her depth” and unable to calm one of her children when they were distraught and angry.

The mother denied ever hitting or yelling angrily at the children. This caused the social worker concern about the mother’s lack of insight into her actions, which she considered to place the children at greater risk. Justice Jenkins found that physical discipline was more likely to occur when the children spend extended periods with the mother, and therefore, the risk would be reduced by limiting the time the children spent in the mother’s care. Ultimately, the court also ordered that neither party should be permitted to use physical discipline on their children as there was “no prejudice to the father in being restrained from doing what is in all likelihood illegal”.

The family law solicitors at Go To Court can help if you have questions about how the corporal punishment of children is treated in parenting matters. Please contact our team on 1300 636 846 for any legal assistance or representation.