Which case won?

casea
The case for the father
  • The mother of my children inflicted emotional and physical violence upon them.
  • There is a serious risk of emotional and physical harm to my children in their mother’s violent household.
  • The risk that my children could be harmed by their mother physically abusing them in future is evident from the fact that she physically assaulted my daughter on 1 May 2018.
  • The determination about the lack of any “unacceptable risk” of harm in the mother’s household was incorrect, because the primary judge failed to take into account that my daughter gave consistent accounts of her assault by her mother to me, to the school authorities and to the police.
  • There is no proper basis for the court not to accept my evidence as truthful and correct, so the court should make an order for the children to live with me and to have only very limited supervised time with their mother.
caseb
The case for the mother
  • I did not assault my daughter.
  • Even though the police spoke to my ex-husband and my daughter after the alleged incident, they did not charge me with assault.
  • The versions of events my daughter gave to my ex-husband, to the school principal and to the police were inconsistent with one another.
  • The details about how the alleged assault occurred and what (if any) injury it caused remain quite unclear.
  • The version of the injuries my ex-husband reported to the police and the child’s counsellor were inconsistent with the doctor’s report.
  • There is no risk of physical or emotional harm to the children while they live in my household. The court should maintain the current orders as they stand.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
a19%
b81%

Expert commentary on the court's decision

“If a false, exaggerated, or inaccurate allegation is made, it still remains false, exaggerated or inaccurate no matter how many times it is repeated”.
Family Court finds in favour of mother

In the case Cao & Cao [2018] FamCAFC 252, the Family Court found in favour of the mother.

The court dismissed the father’s appeal and determined that the status quo should be maintained, so the children would continue to live predominantly with the mother and spend substantial time with the father.

“Just because you say it over and over again doesn’t make it true”

Justice Austin of the Family Court rejected the father’s submission that because the child made the same consistent allegation, it must be accepted by the court. The judge said: “If a false, exaggerated, or inaccurate allegation is made, it still remains false, exaggerated or inaccurate no matter how many times it is repeated”.

The judge added that he was not saying that the eldest child’s reports were false, exaggerated, or inaccurate. Equally, however, they were not true just because she repeated them.

Court needs to test the evidence when it is in dispute

The judge also rejected the father’s submission that there was no proper basis for the court not to accept his evidence as truthful and correct, pointing out that even if his evidence about what his daughter told him was exactly correct, it did not mean what he was told by her was truthful and accurate.

The judge noted that the father’s submission assumed that the primary judge was obliged to accept his evidence of what his daughter said, despite the controversy over the facts she reported. Given that the mother squarely refuted the allegation that she assaulted the child, the primary judge could not just assume the father’s evidence was correct and the mother’s was false.

Smacking children as lawful physical chastisement

The court took the view that even if the child had been struck by the mother, it did not mean that she had been assaulted. She may have only been physically chastised (“smacked”).

The judge pointed out that “even though corporal punishment is falling out of favour under contemporary moral standards, it is still not yet unlawful to use modest physical force to chastise a child.” (See section 61AA of the NSW Crimes Act 1900).

Corporal punishment does not amount to physical “abuse” under the Act unless it constitutes an assault.

Police apparently unconvinced that mother assaulted child

Both Justice Austin and the primary judge took note that the police report said:

Due to the age of the [child] she was not specific as to how the assault occurred and whether or not it was under the grounds or lawful chastisement… Police are of the opinion the use of force on the [child] was borderline excessive.

Justice Austin took the view that while the police contemplated that the mother may have smacked the elder child, they remained unconvinced that the incident amounted to an assault of the child by the mother, as there was no evidence before the primary judge (or in the appeal) that the mother was charged by police with any criminal offence arising out of the incident.

Court rejects further ground of father’s appeal

After also considering another ground of the father’s appeal, that the primary judge erred by allowing extraneous or irrelevant matters to guide or affect her, Justice Austin rejected the father’s appeal.

The court found that there was no error by the primary judge in determining that there was no unacceptable risk of physical or psychological harm to the children in the mother’s household.

What does Australian law say about smacking children?

It is not illegal to physically discipline a child, provided that the physical discipline does not amount to an assault on the child. When the physical discipline amounts to an assault, it is no longer “lawful chastisement” but a crime.

In general, the Family Courts won’t consider lawful chastisement of a child to amount to an “unacceptable risk of physical or psychological harm” to the child, but each case will depend on its own circumstances.

If you elect to physically discipline a child, you will reduce the risk of allegations of assault or “unacceptable risk of physical or psychological harm” if you follow the following guidelines.

  • Explain to the child why you are physically disciplining them at the time of the punishment.
  • Always use an open hand.
  • Do not use implements (eg wooden spoons, rulers, canes, bats).
  • Make the physical punishment reasonable and proportional to the action being punished.
  • Confine smacks to the area on the child’s backside, between the top of the bottom and mid-way down the child’s thigh.

For more information, please see our earlier article Is it legal to smack my child?

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information.
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