An Illawarra man has won an appeal against an apprehended violence order granted in relation to his 12-year-old son who claimed his felt intimidated by his father smacking him and swearing at him during visits to his home.
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In a case that tested the notion of "lawful chastisement" of a child, District Court judge Paul Conlon found that the man's behaviour on two occasions referred to by the child did not constitute the sort of intimidation that required the granting of an AVO.
The two examples put before the court both occurred during the Easter school holidays when the boy and his sister went to stay with their father, who is separated from the children's mother.
The boy told police that one evening while he was washing dishes his father began yelling at him saying he was unenthusiastic about the job and being careless.
The court heard evidence that the man had said to his son "come here and do the f---ing washing up you little shit", before calling him "a f---ing idiot".
The boy told police he was scared by his father's outburst and wasn't sure whether he might hit him.
In the other incident, the father came into the lounge room to discover expensive headphones belonging to his older daughter (from another marriage) were lying on the floor, broken.
The man asked his son, who was sitting close by and had been using the headphones earlier, "who did this?"
The boy said the headphones had fallen off the couch, however the man did not believe him, calling his son a "f---ing liar", before smacking him on the arm area.
During the Local Court proceedings earlier this year, the man admitted that he swore at the boy at times, including in the two incidents.
"I do admit swearing on some occasions and using the F word when I get upset but it's a rarity," he told the court, adding he swore in order to press upon his children the gravity of the situation, or to convey the degree of agitation he was feeling.
Local Court magistrate Susan McGowan found the man's actions towards his son constituted intimidation and granted a standard AVO in September.
However, Judge Conlon overturned that decision on Thursday and set aside the AVO, saying while the man's behaviour had no doubt been an overreaction, it was not intimidatory to the point the child needed legal protection from his father.
Judge Conlon noted evidence from the boy's older half-sister in making his determination, saying her retelling of a typical conversation between her half-brother and father did not allude to him having any fears.
The woman described her half-brother as being a "typical 12-year-old boy" on the verge of puberty, saying he often tested his father out.
"[Dad] would ask him to help out with the dishes and [my brother] might give a smart-arse response like 'I'm not your slave'," the woman said.
Judge Conlon said the boy's apparent reaction indicated he was far from fearful of his father.
He said the legislation, which allows for the court to make an AVO on the grounds of intimidation alone, was often misused.
"This legislation, whilst important to guard and protect people in domestic violence situations ... is often abused and abused for a variety of reasons," he said.
Tell us what you think: Is smacking a child sometimes acceptable -- or is it always wrong? If you think smacking is sometimes appropriate, what circumstances can justify it, what are acceptable guidelines for administering the punishment -- and what do you do if smacking fails to resolve the issue? Or, if you think smacking is never justified, what alternative methods work better, what do you do if those methods fail -- and what should be done about parents who do sometimes resort to smacking?
Note: While we encourage debate on the issue in general, we will not publish comment on the specific court case in the article.