Parents’ Right and Duties

Parents (and guardians) have the right:

• to determine the child’s upbringing and education;
• to discipline the child (including reasonable corporal punishment);
• to consent to the child’s adoption; and
• to take legal proceedings on their behalf.

Parents (and guardians) have the duty:

• to maintain the child, and this duty is imposed equally on both parents;
• to send the child to school once the child reaches 6 years of age, and until they reach 16 years of age; and
• to obtain medical attention for a child who is ill.

Broadly speaking, the law does not intervene between parent and child unless the parent abuses, neglects, fails to maintain the child or cannot control them. Any disputes between the parents about the children (for example, where parents separate and then disagree about where the child/ren will live) will be decided according to either a mutually agreed Parenting Order, or according to what the Family Court thinks is in the best interests of the child.

Corporal Punishment

Adults have no more right to hit a child than that they have to hit another adult. If they do, they commit assault that can be both a criminal offence and a civil wrong. However, as the law stands, parents and other adults in loco parentis (standing in the place of parents) have the right to administer corporal punishment to children in their care, provided the force used is ‘reasonable under the circumstances’. This right does not however extend to the corporal punishment of children in schools (s128, Education Act 2016 (Tas)), juvenile detention centres (s132, Youth Justice Act 1997 (Tas)) or children in foster care and childcare.

The type or degree of force that is ‘reasonable’ is not set out in legislation and legal precedents are inconsistent. It is difficult to state what does and does not come within such a vague phrase as ‘reasonable under the circumstances’. It depends on the circumstances of each case and the standards of the court.  However, among the relevant factors are the following:

• the age of the child — they must be old enough to appreciate correction and the punishment must be reasonable for a child of that age. One judge said: ‘a parent is not lawfully entitled to administer to an infant girl of 19 months any physical punishment except of the very lightest description, for example, a slight slap at the very most’;
• the instrument of correction— canes have been held lawful, but not a loaded gun;
• where a blow was administered. Normally, blows to the face or other vulnerable parts of the body are unlawful;
• the force and number of the blows;
• the seriousness of the child’s offence;
• the age, size, health, and perhaps sex of the child; and
• the consequences of the blows – injuries requiring medical attention will normally suggest illegality.

Numerous parents over the last decade have been convicted in the Tasmanian Supreme Court for excessively punishing their children. In P v Tasmania (No 2) (2006) TASSC 35, the Supreme Court upheld sentence and conviction against a father for the ill treatment of three children extending back three decades. The sentence was a four year term of imprisonment.

In DPP v NLW and JGW (2004) TASSC 93, a sentence of 3 months imprisonment and a $1000 fine were upheld for an incident involving an acquaintance of the victim placing a vacuum cleaner over the boy’s penis, and rubbing Deep Heat on his testicles. The victim was 4 years old.

The case of R v V (2004) TASSC 18 also involved conviction for ill treatment of a child that occurred several decades prior. In 2004, a single mother was convicted of ill-treating her 19 month old boy. Her sentence included a 4 year period where she was not permitted custody of children under the age of 18 years without Departmental approval. The stress of her situation, which included heavy pregnancy, homelessness, and an attempt to leave a violent dysfunctional relationship were taken into account.

Bresnehan v R (1992) 1 Tas R 234 is an early example of the issues around corporal punishment. The light sentence of 10 weeks imprisonment is at a noticeable contrast with more recent cases where sentences are much harsher.

In Bresnehan, a father and his wife were prosecuted for various charges of ill treatment of a child and assault against all four of their children. The father was convicted of one count of ill treatment of his youngest son. In relation to the other charges of ill treatment of a child and assault the jury returned hung verdicts. The alleged incidents included:

• the ‘cigar incident’: the children were forced to smoke cigars and eat the cigar butts; the youngest son was whipped, grabbed by the throat and thrown to the ground, two other children were also whipped (one or more of the children had been caught smoking);
• the ‘tapes incident’: the stepmother whipped all the children on the hands with a horsewhip because a missing cassette tape had been found destroyed;
• the ‘gun powder incident’: the youngest son was forced to hold his face over a mug of loose gun powder and the powder was ignited (he had taken it and apparently played with it);
• a cattle-prodder was used to sting the children on the tongue and bottom;
• a child was tied in a shed with a dog chain and hit with a shearing belt for not feeding the dogs properly.

Other incidents included being hit with a dog lead, a stock whip, a hearth brush, a shearing belt and a piece of wood. For the charge of ill treatment of his youngest son the father was initially sentenced to 12 months imprisonment. Because the jury’s verdict was guilty to this non-specific charge, it was unclear which incidents they found proven. The parents denied that most of these punishments took place at all. On appeal by the father the sentence was reduced to 10 weeks and backdated (Bresnehan v R (1992) 1 Tas R 234). This reduction was made because it was held that the trial judge had taken some incidents into account which were not the subject of a conviction, namely the charges relating to the other three children).

The trial judge and all three judges in the Court of Criminal Appeal gave mitigatory weight to the fact that the father had acted with a genuine belief that his methods were for the ultimate good of the child. So long as the law permits physical punishment of children subject to the proviso of unreasonableness, the law will be obliged to give such genuine beliefs mitigatory weight.

It should be noted that the Tasmanian Law Reform Institute’s 2003 Paper ‘Physical Punishment of Children’ argues that community standards are changing and increasingly the use of corporal punishment on children is viewed as inappropriate. Already, the corporal punishment of children has been banned in ten European countries.