Australia Australia - William Tyrrell Disappeared While Playing in Yard - Kendall (NSW) #77

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"Under the defence of lawful correction in NSW, a parent or carer can use force on a child as long as the action was intended as punishment."



The defence of lawful correction in New South Wales is contained in section 61AA of the Crimes Act 1900. This provision states that the accused must prove the following:
  • The force was intended as a punishment for the child.
  • The force was administered by a parent or someone in a parental role.
  • The force was reasonable considering the child’s age, health, maturity, nature of the misbehaviour, and other relevant factors.
 
i thought it was against the law in australia for a foster child to be given physical punishment?
I think we discovered it's a breach of the foster care regulations or code of conduct or something. This would mean that the government could sack you as a carer. It wouldn't mean that your action was a crime necessarily. However, in my opinion there would be a big question over whether the defence of lawful correction would apply--because the application of force has to be reasonable under the circumstances, and arguably it's not reasonable to breach the foster care rules.
 
I think we discovered it's a breach of the foster care regulations or code of conduct or something. This would mean that the government could sack you as a carer. It wouldn't mean that your action was a crime necessarily. However, in my opinion there would be a big question over whether the defence of lawful correction would apply--because the application of force has to be reasonable under the circumstances, and arguably it's not reasonable to breach the foster care rules.

Arguably the child had been in the care of the foster parents for almost all of her life, at that point. About 11 years.
I wonder what kind of consideration Magistrate McIntyre will give to that in her determination.
As this was not a short term placement, or a situation where the child would ever be returned to her parents - as in, some kind of interim care.
It may be that they are determined to have had more of a parental role than a foster care role.

I guess we will see how Magistrate Susan McIntyre applies the lawful correction defence when she hands down her ruling on 22nd March next year.

 
Arguably the child had been in the care of the foster parents for almost all of her life, at that point. About 11 years.
I wonder what kind of consideration Magistrate McIntyre will give to that in her determination.
As this was not a short term placement, or a situation where the child would ever be returned to her parents - as in, some kind of interim care.
It may be that they are determined to have had more of a parental role than a foster care role.

I guess we will see how Magistrate Susan McIntyre applies the lawful correction defence when she hands down her ruling on 22nd March next year.

One could argue the contrary too though--that since they were considered permanent carers, it was incumbent on them to be the most spotless of all.
 
One could argue the contrary too though--that since they were considered permanent carers, it was incumbent on them to be the most spotless of all.

I dunno, JLZ. It seems pretty hard for anyone to be Superparents. No matter who you are, where you live, how you live, to be a perfect parent is impossible.

Most people do the best they can, given their circumstances. But I am pretty sure that, in time, all of us could look back and think "I could have handled that particular thing better".

Teenagers and pre-teens can be a real PIA when they want to be.

imo
 
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In May, an argument was recorded in which the foster mother accused the child of throwing things around the home.
"If I see or hear you throw something around again that won't be the only thing that gets thrown," the woman said.
"You seem to only listen to me when I threaten to get violent with you."

A July argument over packing the dishwasher resulted in the foster mother threatening to pack up the child's things in a black plastic garbage bag.
"If I get that attitude ... I'm going to slap you across the face," the woman said.
"Do you want me to do that? Because you are pushing me big time." William Tyrrell's foster parent accused of being 'bad mother' by child

It seems both of these things was said after the wooden spoon assault. I thought the magistrate said that the assaults were a prima facie case and had reason to think the child thought those threats could have been carried out. It's unlawful to throw anyone around and is not within the scope of parental corrective behaviour and it seems the FFC knew that the threat was a threat of violence.

As her rep Sharon Ramsden ironically pointed out today, a slap across the face is not within the scope of corrective parental behaviour, and yet that is what her client threatened.

The evidence for the child having hands placed around her neck came from 2 witness who heard this child's admission, said she was so frightened and then started sobbing during a break in a police interview. Were the police asking questions about hands being placed on her neck, prior to this admission? That's important IMO
 
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“The couple will reappear before the same court in March when magistrate Susan McIntyre will deliver her judgment following further written submissions.”
https://www.news.com.au/national/ns...s/news-story/c1e811807af311a5525e83420f9b4a97

........ It has been reported that: https://www.news.com.au/national/ns...d/news-story/f3ee72eb216644d68ef907d8ce64a31d Underlined BM
“In a bugged phone call to an unidentified person, the foster mother is heard saying: “I kicked (the child) this morning, I kicked her hard” and “I’m not coping.”
In that same conversation, she mentions that she was being “investigated” by police over William’s disappearance and commented: “They are trying to trip me up on stuff.”
She further added: “They’re doing it because they *advertiser censored**ed it up … They cleared the guy.”

MOO - The anger, frustration and the manner in which the handling of the 11 year’s behaviour and actions could be the result of pressure that both the FM and FF were under:-
https://www.news.com.au/national/ns...d/news-story/f3ee72eb216644d68ef907d8ce64a31d
“Later that day, she is heard having a conversation with the child.
“I need to apologise to you, I lost complete control and what I did was out of line … I’m sorry I did that,” the woman says.
“I’m sorry too,” the child says.
The woman adds: “What I’m trying to do is not respond to you poking the bear. And I’m the bear.”
She also says she’s under a “huge amount of pressure” and says she “loves the child”, despite her not being her “flesh and blood”.

For three days, Parramatta Local Court has heard covert recordings from inside William’s foster family’s home, including one where the woman can be heard kicking another child - who is not William - and smacking them with a wooden spoon.
Other tapes heard the woman threatening to “slap” the child in the face and “throw” them around.
The missing boy’s foster mother has pleaded guilty to two counts of assaulting a child - who cannot be identified - by smacking them with the wooden spoon and kicking them in the thigh.
The foster mother, 58, has pleaded not guilty to two counts of intimidation against the same young child while William’s foster father, 56, has pleaded not guilty to one count of common assault and one count of intimidation.”

JMO - I wonder if in assessing the assaults and intimidation by both the FM and FF, the ‘disciplining of the young girl was entirely inappropriate … considering the sad experience that the young girl has had to endure. It seems that the ‘disciplining’ treatment doled out to her was over the top in respect of the young girl’s immature behaviour.

We have not heard anything from the surveillance tapes which record any mention of William's disappearance to the young girl. I wonder if, in the more recent times, his disappearance was ever talked about with her. Or is it just like it had never happened and not spoken about at all with her. MOO

Edited to add last paragraph
 
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I guess we will see how Magistrate Susan McIntyre applies the lawful correction defence when she hands down her ruling on 22nd March next year.
What the court has to decide is whether there was intimidation. If MFC grabbed the child by the neck, I think that is intimidation: a threat to strangle. If he merely pushed her down by the shoulder, any contact with the neck area being minimal and incidental, I think that is not intimidation. His behaviour in the car--shouting and screeching the tyres--might qualify, possibly being a threat to crash the car and harm them both. Crashing a car, strangling a child, are not lawful punishments, so the defence of lawful correction could not apply.
 
What the court has to decide is whether there was intimidation. If MFC grabbed the child by the neck, I think that is intimidation: a threat to strangle. If he merely pushed her down by the shoulder, any contact with the neck area being minimal and incidental, I think that is not intimidation. His behaviour in the car--shouting and screeching the tyres--might qualify, possibly being a threat to crash the car and harm them both. Crashing a car, strangling a child, are not lawful punishments, so the defence of lawful correction could not apply.

Well, apparently a couple of barristers disagree with you.

I think if FM's lawyer thought the intimidation charge was indisputable, FM would have pled guilty to it - as she did with the assault charges. Pretty sure the assault charges would be considered the more serious charges FM faced.

imo
 
Well, apparently a couple of barristers disagree with you.

I think if FM's lawyer thought the intimidation charge was indisputable, FM would have pled guilty to it - as she did with the assault charges. Pretty sure the assault charges would be considered the more serious charges FM faced.

imo
bbm
Yes, laws have changed in DV assault cases and placing hands on someone's neck if proven are often given jail time as the action is seen as an escalation psychologically towards homicide. MOO
 
Well, apparently a couple of barristers disagree with you.

I think if FM's lawyer thought the intimidation charge was indisputable, FM would have pled guilty to it - as she did with the assault charges. Pretty sure the assault charges would be considered the more serious charges FM faced.

imo
I haven't addressed FFC's charges. I'm not saying MFC's charges are indisputable either.
 
I haven't addressed FFC's charges.

I realise that. And I don't intend to get iinto a debate about whether or not FD's hands were around the child's neck or on her shoulders, because it seems to me the way to push someone back into a sitting position is to push them down on their shoulders.

It is a case of he said/she said, and I can't even guess how a court will rule on that.

imo
 
Paraphrased from The Daily Telegraph

FF Defence Lawyer said the child twice refuted allegations that she was grabbed by the neck. (In subsequent police interviews)
He alleged the child stated the man had his hands on her shoulder area.

When the child was asked if the man had ever grabbed her by the neck, the child said “umm yes” but told a second Police officer she didn’t remember talking about it.

The Child allegedly told Police, “He usually (the foster father) just yells, but he had his hand near my neck. I didn't know what he would do, but he wouldn't choke me. He’s not like that,”

Paywalled for some

 

In follow-up interviews, Mr English said the child twice refuted allegations that she was grabbed by the neck, instead stating the man had his hands on her shoulder area.

Asked by Senior Constable Kate Lock if the man had ever grabbed her by the neck, the child said “umm yes” but told a second officer she didn’t remember talking about it.

“He usually (the foster father) just yells, but he had his hand near my neck. I didn't know what he would do, but he wouldn't choke me. He’s not like that,” she told police.
 
I'm a little frustrated with the focus on a few specific incidents. Isn't there a way to argue that it was the repetition of such incidents and the atmosphere of blaming over a long period of time that constituted the intimidation?
 
In May, an argument was recorded in which the foster mother accused the child of throwing things around the home.
"If I see or hear you throw something around again that won't be the only thing that gets thrown," the woman said.
"You seem to only listen to me when I threaten to get violent with you."

A July argument over packing the dishwasher resulted in the foster mother threatening to pack up the child's things in a black plastic garbage bag.
"If I get that attitude ... I'm going to slap you across the face," the woman said.
"Do you want me to do that? Because you are pushing me big time." William Tyrrell's foster parent accused of being 'bad mother' by child

It seems both of these things was said after the wooden spoon assault. I thought the magistrate said that the assaults were a prima facie case and had reason to think the child thought those threats could have been carried out. It's unlawful to throw anyone around and is not within the scope of parental corrective behaviour and it seems the FFC knew that the threat was a threat of violence.

As her rep Sharon Ramsden ironically pointed out today, a slap across the face is not within the scope of corrective parental behaviour, and yet that is what her client threatened.

The evidence for the child having hands placed around her neck came from 2 witness who heard this child's admission, said she was so frightened and then started sobbing during a break in a police interview. Were the police asking questions about hands being placed on her neck, prior to this admission? That's important IMO
Edit to say, the journalist said it was unlawful to slap someone's face as parental correctiveness. SR did not argue that point. Making so many mistakes recently.
 
I realise that. And I don't intend to get iinto a debate about whether or not FD's hands were around the child's neck or on her shoulders, because it seems to me the way to push someone back into a sitting position is to push them down on their shoulders.

It is a case of he said/she said, and I can't even guess how a court will rule on that.

imo
Can I ask you and others with some knowledge of foster care: assuming there was no threat of choking, it was purely a matter of pushing the child down to require her to undergo the sitting punishment--would that application of force be a breach of foster care rules?
 
After the child told teachers about the argument, the foster father said they should go to the foster mother instead if he ever did anything to make them fearful.
Mr English said this statement did not show a consciousness of guilt but rather the realisation that any further comments to the child's school could result in the couple losing care. Tyrrell foster father argues 'lawful' force on child

bbm This argument is absolute b.s. Why would the MFC think that the child, reporting to the school, could result in the couple losing care, unless he feared that his actions were sitting outside of carer guidelines at the very least. MOO
 
After the child told teachers about the argument, the foster father said they should go to the foster mother instead if he ever did anything to make them fearful.
Mr English said this statement did not show a consciousness of guilt but rather the realisation that any further comments to the child's school could result in the couple losing care. Tyrrell foster father argues 'lawful' force on child

bbm This argument is absolute b.s. Why would the MFC think that the child, reporting to the school, could result in the couple losing care, unless he feared that his actions were sitting outside of carer guidelines at the very least. MOO
The prosecutor did rebuff this ….

Police prosecutor John Marsh claimed the foster father was “conscious of having intimidated” the child and counselled her not to raise her concerns with teachers.

 
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