Can You Smack Your Child in South Australia? Dewar Legal Acts in Supreme Court Appeal

Having been liberally smacked as a child and being none the worse for it, the writer is pleased to report that the answer is “yes” within certain common sense limitations.

Dewar Legal recently acted in a successful appeal to the Supreme Court of South Australia regarding the issue of parents smacking their children – Police v G,DM [2016] SASC 39. The matter received widespread local and national media coverage. For examples, see:

Our client – a distinguished member of the Australian military with an exemplary work record and no criminal history at all – was the father of a particularly difficult 12 year old boy. As a result of very poor behaviour (and having tried other means of discipline without success) our client smacked the child three times on the thigh. No bruising or injury was caused. Indeed shortly thereafter our client and the child discussed the incident (and the child’s misbehaviour) and put the matter behind them.

Unfortunately the child’s mother (who was separated from our client and promptly instigated family law proceedings seeking sole custody of the child without any rights of visitation for our client) marched the child off to a police station and reported the smacking incident. Our client was (ridiculously) charged with aggravated assault on his son. A reasonable observer could be forgiven for concluding that this was a classic example of the criminal justice system being used as a weapon in a family law matter and of the police and prosecuting authorities simply being too weak to prevent themselves from being used in this way.

We advised our client to plead “not guilty” on the basis that the smacking constituted reasonable parental correction of a child – a long-standing legal defence to a charge of assault.

A magistrate heard the evidence. The magistrate preferred the evidence of our client over the child and his mother. Despite this, our client was found guilty of aggravated assault on the basis that the smacking was unreasonable. Nevertheless, our client was discharged without conviction and without penalty – the magistrate had some sympathy for our client and noted that not every breach of the criminal law needs to result in charges being laid.

In our view the magistrate’s decision to find our client guilty was plainly wrong. We immediately appealed to the Supreme Court. Despite our client being dealt with “without conviction” the consequences for him would have been severe given his profession and future plans.

Our appeal was successful on all points. His Honour Justice Peek held that our client’s conduct in smacking his son was not unreasonable and was genuinely intended to correct the child’s misbehaviour.

While the media have referred to His Honour’s judgment as being a “landmark” decision, in reality it is simply a correction of the magistrate’s obvious error in applying a long-standing principle of law to the facts of this particular matter. In South Australia (as in most common law jurisdictions), it is not illegal to physically chastise a child as long as the chastisement is reasonable in all the circumstances and is genuinely intended as a disciplinary measure.