Introduction

When it comes to disciplining children, a sticky topic is whether or not to use corporal means of punishment, like smacking. It’s a fact that some parents smack their children, while others find the practice completely unacceptable. 

A recent decision of the Federal Circuit and Family Court of Australia, Jagic & Mattias [2022] FedCFamC2F 1820 (20 December 2022) (Jagic), saw a mother lose custody of her three children after she allegedly smacked her 5-year-old daughter. The decision highlights the Court’s scrutiny over the one-sided evidence that was submitted by the police and the children’s father. 

What happened in the case?

Three children aged 7, 5, and 3 lived with their mother and spent four nights a week unsupervised with their father. The mother was charged with assault occasioning actual bodily harm concerning her 5-year-old child, and a breach of an Apprehended Domestic Violence Order (ADVO) between herself and the children’s father.

It was alleged that at around 8pm one evening, the child had urgently needed to use the toilet, and had urinated on the floor tiles instead of inside the toilet itself. It was alleged that the mother smacked her child, causing a large, red hand mark on the child’s buttocks, with clearly visible welting and bruising. Over the next two days, the child complained to her father about the pain, so he took photographic evidence and alerted the school and authorities. The welting and bruising along with the hand mark were still visible two days later.

What does the law say about smacking a child?

Pursuant to s 61AA of the Crimes Act 1900 (NSW), a parent may use the “defence of lawful correction” if there are criminal proceedings brought against them due to the use of physical force on a child. However, there are limitations involved. Below is an outline of what is considered acceptable and unacceptable under the law.

Acceptable:

• The physical force must have been applied by the child’s parent or by a person acting for the parent, and
• The physical force used on the child must be reasonable. To determine what is reasonable, the court considers the age, health, maturity, or other characteristics of the child, as well as the nature of the alleged misbehaviour or other circumstances.

Unacceptable:

• The use of force was done to the child’s head or neck, unless it was considered trivial or negligible in all of the circumstances.
• Where the use of force is applied to any other part of the child’s body in a way that would likely cause harm that lasts for more than a short period.
• Any other circumstances where the use of physical force is not reasonable.

In order to rely on this defence, the parent must prove that the force was reasonable on the balance of probabilities, which is the civil standard for evidence.

Why did the court remove the children from the mother’s custody?

The Federal Circuit and Family Court could not determine the outcome of the criminal case that was filed against the mother. The Court was tasked with making a decision on an interim application for relief by the father to have the children removed from the custody of their mother due to family violence considerations.

When the Court heard the evidence, the mother remained silent and did not provide information about the circumstances of the bruise. She did not deny the allegations, and the Court found that she could have provided it with evidence to enable it to make a decision, but failed to do so. 

The Court noted that it had seen hundreds of photographs of bruised body parts, and it had never seen the likes of a handprint being marked on a child’s buttocks in that manner. The Court stated that it could not imagine the type of force that would have been used to bruise the child in that way for it to still be visible days later. It was the Court’s view that this would not come within the meaning of a “lawful correction” pursuant to the Crimes Act. The Court ultimately stripped the mother of her custody rights, which it gave to the father instead.

Raising family violence concerns

An often-raised matter in family court proceedings are allegations of family violence. There are cases where there is evidence, but quite often it can be raised as a baseless allegation out of spite, retaliation, or revenge against the spouse. In this particular case, the mother raised allegations that the father had been the perpetrator of family violence towards her and the children in the past. 

For this submission, the Court had considered the fact that the father had not been convicted of any family violence charges, as well as the fact that he had unsupervised time with the children four times a week for a long period of time. The Court ultimately considered the family violence as “untested” and decided not to make family violence findings against the father.

Conclusion

The case of Jagic  shows that a parent can lose custody when there are allegations of family violence, with evidence to support it, and there is a total lack of evidence by the alleged perpetrator to provide an explanation to the court. This was not a regular smack which used little force, as the amount of force that was applied to the child was among the likes of which the court had never seen before.

Pannu Lawyers extensively practices in Family Law and regularly appear at the Federal Circuit and Family Court of Australia, which has court locations in Parramatta (NSW) and Dandenong (VIC). We are conveniently located within a walking distance from the Blacktown train station and can accommodate after hour appointment to suit you. Call our office on 02 9920 1787 or 1300 VAKEEL to discuss your matter in a confidential manner.