A pilot’s conviction for smacking his 12-year-old son has been overturned, with a court ruling that causing pain during discipline does not “transform” a parent into a criminal.

Supreme Court Justice David Peek quashed the dad’s conviction for aggravated assault yesterday, highlighting the original trial as “misdirected” on “the issue of parental correction”.

In delivering his judgment, Justice Peek stated that the slaps the pilot delivered to his son’s thigh, were “not unreasonable” and used for the purpose of correcting the behaviour of his offspring.

“The suffering of some temporary pain and discomfort by the child will not transform a parent attempting to correct a child into a person committing a criminal offence,” he said. “Indeed, the very suffering of temporary emotion may be calculated to impress the child and correct the behaviour, just as much as the accompanying physical discomfort.

“Some level of pain is permissible, and in the present case there was little … the mere existence of red marks caused by the punishment does not prove unreasonable correction.

“It is very important that parental conduct which is not considered unreasonable in the Australian community should not be stigmatised as criminal offending in a criminal court.”

The pilot, 43, challenged his original conviction imposed by the Magistrates Court for an alleged assault upon his son in the northeastern suburbs in March 2014.

In his judgment, Justice Peek said the pilot shared custody of his son, 12, with his estranged first wife.  He went onto describe the mother’s approach to parenting as “very laissez-faire”.

Further describing the father in the case, Justice Peek said the pilot was of “of excellent character and work ethic” with a “distinguished” military career.  

Delving into the father’s parenting style, the Judge emphasised his use of “firm boundaries” surrounding bedtimes, TV and computer use, meals and chores.  

“The pilot gave evidence that he tried to instil self-discipline in his son and values similar to those of the Air Force including respect, dignity and integrity,” he said. “(The boy) would become indignant and stubborn … he did not like being corrected … he was quite adamant that he was in the right and his father was in the wrong.”

Describing the incident in question itself, Justice Peek said that prior to the smacking incident, the father had punished his son by giving him “time out” and was “genuinely frustrated” by its ineffectiveness.

When his son “threw a tantrum” over lunch about his food and showed disrespect to his father and stepmother, the pilot then smacked the boy three times.  

His struck the boy once on his bare thigh and twice on his shorts, saying, ““if you’re going to act like a four-year-old, I’ll treat you like a four-year-old”.The boy said in evidence that the pain in his leg was not serious and hurt a little bit for a day, and the redness lasted two days … his thigh did not bruise,” he said.

The pilot’s former wife reported the incident to police, and after a trial he was convicted of assault and discharged without further penalty.

Justice Peek said the magistrate’s original decision must be overturned and the charge dismissed.

He said the unreasonable application of force for “malice or revenge” was a criminal act, but genuinely disciplining a child of appropriate age and size for the punishment was not.

“If one can ever safely say that something is as old as mankind, that something might be parental correction of children,” he said. “There has long been a fundamental question as to the extent to which the law should intrude into such areas. While it may be that some children … may be too old for physical parental correction, such an argument does not extend to a 12-year-old boy.”

Justice Peek said that life-affecting consequences for the pilot linked to an aggravated assault conviction were significant in nature and in this case, unwarranted.

“Many persons might be unable to comprehend how a parent could even be charged in such a situation,” he said. “(They) would believe that a finding of aggravated assault would have to be based on conduct very much more serious than that.”

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