A recent case that went to the Court of Appeal brought this issue to light. In the matter of Cao & Cao  FamCAFC 252 (19 December 2018) Justice Austin heard an appeal on a decision that the mother be allowed to remain in custody of her children despite allegations made by her 8 year old daughter that the mother has “struck” her. The details about how the strike occurred and what (if any) injury it caused remained quite unclear, however the father did think it fitting to report to police, the school and to take the child into his sole care from then on forward.
Justice Austin disallowed the appeal on the grounds that it is still not yet unlawful to use modest physical force to chastise a child. But what does this mean?
What is moderate physical force when punishing a child?
Section 61AA of the Crimes Act 1900 sets out a defence for the application of physical force to a child.
At the moment under this section the use of physical force to punish a child is allowed under the following circumstances:
- That you are the parent, or guardian and have been authorised to use physical force to punish the child by the parent; and
- The physical force was a reasonable punishment having regard to:
a. The age, health, maturity of the child,
b. The misbehaviour that the child is being punished for;
- Unless it is trivial, the force will not be reasonable if it is:
a. To any part of the head or neck of the child, or
b. Is likely to cause harm to the child that lasts for more than a short period.
So it seems at the moment, as long as you fall within this narrow
defence you will not be going to jail for using physical force to punish
However with physical punishment of children outlawed in 54 nations around the world and this law being up for mandatory review every 3 years, Australia’s position on this issue is soon likely to change.