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TREVORROW v STATE OF SOUTH AUSTRALIA 1 August 2007 )
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SUPREME
COURT OF
(Civil)
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suppression orders or statutory provisions prohibiting publication that may
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judgment to ensure that the intended use of that material does not breach any
such order or provision. Further enquiries may be directed to the Registry of
the Court in which it was generated.
TREVORROW v STATE OF
Judgment
of The Honourable Justice Gray
TORTS - MALICIOUS PROCEDURE AND
FALSE IMPRISONMENT
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE
EQUITY - GENERAL PRINCIPLES - FIDUCIARY OBLIGATIONS
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE CROWN -
LIABILITIES OF THE CROWN - IN TORT - FOR ACTS OF SERVANTS OR AGENTS - LIABILITY
OF SERVANT OR AGENT - FOR MISFEASANCE IN PUBLIC OFFICE
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT -
REMOTENESS AND CAUSATION
LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS - THE
PERIOD OF LIMITATION - ACTIONS FOUNDED ON SIMPLE CONTRACT AND TORT (INCLUDING
BREACH OF STATUTORY DUTY)
The plaintiff brought an action against the State of
Held: The removal and placement of the plaintiff was without statutory warrant
or legal authority and ultra vires – the statutory board and government
department involved in the plaintiff’s removal, placement and return to his
natural family were emanations and agents of the State – the State is liable
for the actions of the board and departmental officers - the State owed a duty
of care to the plaintiff at the time of his removal, fostering and subsequent
return to his natural family – the State breached its duty of care to the
plaintiff – the plaintiff was falsely imprisoned – the plaintiff was subject to
misfeasance in public office – the State had a fiduciary duty to inform the
plaintiff of the circumstances of his removal and to ensure he received
independent legal advice - declarations made and damages including exemplary
damages awarded.
The plaintiff made application for an extension of time pursuant to the
Limitation of Actions Act – consideration of principles in extending time –
consideration of the defence of laches – Held: Extension granted – State’s
defence of laches rejected.
Aborigines Act 1934-1939 (SA) s 4, s 5, s 6, s 7, s 8, s 9, s 10, s 17,
s 24, s 31, s 32, s 33, s 34, s 38, s 39, s 40, s 42 and s 51; Maintenance
Act 1926-1937 (SA) s 5, s 8, s 12, s 15, s 16, s 28, s 30, s 31, s 33, s
37, s 50, s 100, s 101, s 102, s 106, s 110, s 128, s 147, s 149, s 150, s 172,
s 175, s 167, s 168, s 189 and s 194; Aboriginal Affairs Act 1962 (SA) s 4,
s
5, s
13, s
15 and s
16; Limitation
of Actions Act 1936 (SA) s 35, s 36, s 45 and s 48; Crown
Proceedings Act 1992 (SA) s 5; Aboriginals Ordinance 1918 (NT);
Adoption of Children Act 1925-1934 (SA) s 12; Social Welfare Act 1970
(Vic) s 36; Immigration
(Guardianship of Children) Act 1946-1973
(Cth) s 6; Public Service Act 1916 (SA); Evidence Act
1929
(SA) s 45A; Community Welfare Act 1972 (SA) s 5, s 7 and s 10;
Children's Protection Act 1936 (SA) s 5; Social Welfare Act 1926-1965
(SA) s 167 and s 168; Ordinance No 12, 1844 .; State Children Act
1895 (SA) S 16 and s 33; Aborigines Act 1911 (SA) s 4, s 5, s 10, s
14, s 17 and s 31; Aborigines (Training of Children) Act 1923 (SA) s 6,
s 7 and s 8; Aborigines (Consolidation) Act 1934 (SA); Maintenance
Act Amendment Act 1965 (SA); Justices Act 1921 (SA) s 50(1),
referred to.
Alphacell Ltd v Woodward [1972] AC 824; Anthony Hordern & Sons
Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1;
Attorney General v Prince & Gardner [1998] 1 NZLR 262; B v
Attorney-General of New Zealand [2004] 3 NZLR 145; Bank of New South
Wales v The Commonwealth of Australia (1948) 76 CLR 1;
Barker and Others v Duke Group Ltd (in Liq) (2005) 91 SASR 167; Barrett
v Enfield London Borough Council [2001] 2 AC 550; Bennett v Minister of
Community Welfare (1992) 176 CLR
408; Breen v Williams (1996) 186 CLR 71;
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR
541; Brockhill [2001] 2 AC 19; Bropho v Western Australia
(1990) 171
CLR 1; Calvaresi & Rota Forma Pty Ltd v Lawson & Lawson
(1995) 184 LSJS 147; Carnegie v State of Victoria [1989] VSC
(unreported, Full Court, 14 September 1989); Chappel v Hart (1998) 195 CLR
232; Cia de Seguros Imperio v Heath (REBX) Ltd and Others [2001] 1
WLR 112; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR
384; Clay v Clay (2001) 202 CLR
410; Cotogno v Lamb (No 3) (1986) 5 NSWLR 559; Coulthard v Disco
Mix Club Ltd and Anor [2001] 1 WLR 707; Cowell v Corrective Services
Commission of NSW (1998) 13 NSWLR 714; Crimmins v Stevedoring Industry
Finance Committee (1999) 200 CLR 1;
Cubillo v Commonwealth (No 2) (2000) 103 FCR 1; Daniels Corp v ACCC
(2002) 213
CLR 543; Deputy Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR
219; Downey v Trans Waste Pty Ltd (1991) 172 CLR
167; Duke Group Ltd (in Liq) v Alamain Investments Ltd & Ors (2003)
232 LSJS 58; Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298 at
[470]; Finlay & Ors v Silcon Industrial Pty Ltd & Anor (2003)
229 LSJS 14; Fitzgerald v Masters (1956) 95 CLR 420;
Fitzgerald v Penn (1954) 91 CLR 268;
Forbes v Davies and Commonwealth of Australia (1994) Australian Torts
Reports 81-279; Fountain v Alexander (1982) 150 CLR
615; Gerula v Flores (1995) 126 DLR (4th) 506; Graham Barclay
Oysters P/L v Ryan (2002) 211 CLR
540; Gray v Motor Accident Commission (1998) 196 CLR 1;
Groves v The Commonwealth (1982) 150 CLR
113; Hewer v Bryant [1970] 1 QB 357; Hospital Products Ltd v
United States Surgical Corporation (1984) 156 CLR 41
at 102; Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR
334; Jaensch v Coffey (1984) 155 CLR
549; JD v East Berkshire Community Health NHS Trust and Ors [2005] 2
WLR 993; Johnson v Perez (1988) 166 CLR
351; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd
(1985) 157
CLR 309; The King v Wallis and Another; Ex parte Employers Association
of Wool Selling Brokers and Others (1949) 78 CLR 529;
Knox v Gye (1872) LR 5 HL 656; Kruger v Commonwealth (1997) 190 CLR 1;
Lamb v Cotogno (1987) 164 CLR 1;
Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221; Leon Fink Holdings Pty
Ltd v Australian Film Commission (1979) 141 CLR
672; Lovett v Le Gall (1975) 10 SASR 479; Luscombe v State of
South Australia (1984) 118 LSJS 221; McPhee v Blyth (1992) 166 LSJS
236; Maguire v Makaronis (1997) 188 CLR
449; Marshall v Watson (1972) 124 CLR
640; Medlin v State Government Insurance Commission (1995) 182 CLR 1;
Meering v Grahame-White Aviation Company Ltd (1919) 122 LT 44;
Metropolitan Bank v Heiron (1880) 5 Ex D 319; Mills v Meeking (1990)
169 CLR
214; Motor Terms Co Pty Ltd v Liberty Insurance Ltd (1967) 116 CLR 117;
Murray v Ministry of Defence [1988] 2 All ER 521; Myer Stores Ltd and
Ors v Soo [1991] 2 VR 597 at 599; Napolitano v Coyle (1977) 15 SASR
559; Neale v Colquhoun [1944] SASR 119; Neindorf v Junkovic
(2005) 222 ALR 631; New South Wales v Moss (2000) 54 NSWLR 536;
Newcastle City Council v GIO General Ltd (1997) 72 ALJR 97; Northern
Land Council v The Commonwealth of Australia (1987) 75 ALR 210; O'Brien
v McKean (1968) 118 CLR
540; Phelps v Hillingdon London Borough Council [2001] 2 AC 619;
Pollack v Volpato [1973] 1 NSWLR 653; Pyrenees Shire Council v Day
(1998) 192
CLR 330; R v Bonython (1984) 38 SASR 45; R v Calbria (1982)
31 SASR 423; R v D [1984] 1 AC 778; R v Governor of Brockhill Prison;
Ex parte Evans [No 2] [2001] 2 AC 19; R v Lavender (2005) 222 CLR 67;
R v Nicholson (1984) 12 A Crim R 231; R v Perry (No 4) (1981) 28
SASR 119; Re Bolton; Ex parte Beane (1987) 162 CLR
514; Re Loftus (deceased); Green & Ors v Gaul & Ors [2006] 4
All ER 1110; Rivett Arboricultural & Waste Equipment Hire Pty Ltd v
Evans (No 2) [2007] SASC 197;
Ross v Chambers (Supreme Court of Northern Territory, Kriewaldt J, 5 April
1956, unreported); Roy Morgan Research Centre Pty Ltd v Commissioner of
State Revenue (Vict) (2001) 207 CLR 72;
Ruddock v Taylor (2005) 222 CLR
612; S v Gloucestershire County Council [2001] Fam 313; Sanders v
Snell (1998) 196 CLR
329; SGH Ltd v FCT (2002) 210 CLR 51;
Shorey v PT Limited (2003) 77 ALJR 1104 AT [44]-[47]; Sola Optical
Australia Pty Ltd v Mills (1987) 163 CLR
628; State of New South Wales v Fahy [2007] HCA
20; Sullivan v Moody (2001) 207 CLR
562; Superannuation Fund Investment Trust v Commissioner of Stamps (SA)
(1979) 145
CLR 330; Sutherland Shire Council v Heyman (1985) 157 CLR
424; Tame v New South Wales (2002) 211 CLR
317; The Commonwealth v Yarmirr (2001) 208 CLR 1;
Tito v Waddell (No 2) [1977] Ch 106, at 139; Trevorrow v State of South
Australia (No 2) (2005) 94 SASR 1; Trevorrow v State of South Australia
(No 3) (2005) 94 SASR 44; Trevorrow v State of South Australia (No 4)
(2005) 94 SASR 64; Trobridge v Hardy (1955) 94 CLR 147;
Ulowski v Miller [1968] SASR 277; Uren v John Fairfax & Sons Pty Ltd
(1966) 117
CLR 118; Van de Heuvel v Tucker (2003) 85 SASR 512; Victorian
Workcover Authority v Esso Australia Ltd (2001) 207 CLR
520; Visy Paper Pty Ltd v Australian Competition and Consumer Commission
(2003) 216
CLR 1; W v Essex County Council [2001] 2 AC 592; Waters v
Commissioner of Police for the Metropolis [2000] 1 WLR 1607; Wedd v Wedd
[1948] SASR 104; Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71;
Wik Peoples v Queensland (1996) 187 CLR 1
at 90; Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35
NSWLR 497 at 512; Wilson v Peisley (1975) 7 ALR 571; Wyong Shire
Council v Shirt (1979-1980) 146 CLR 40;
X (Minors) v Bedfordshire County Council [1995] 2 AC 633; XL Petroleum
(NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR
448; Youngman v Lawson [1981] 1 NSWLR 439; Zorom Enterprises Pty
Ltd v Zabow [2007] NSWCA
106, considered.
TREVORROW
v STATE OF
[2007] SASC 285
Civil
GRAY J
INTRODUCTION[1]
|
1 |
On Christmas Day 1957, an Aboriginal infant in need of
medical treatment was sent to hospital. The child recovered a short time
later. He was then taken from hospital and placed in long term foster care. His
parents were unaware of the removal or fostering. Almost 50 years later, this
Court is to determine the legal consequences that flow from the removal, his
placement with another family, and the circumstances of his return to his own
family a decade later. |
|
2 |
The general circumstances giving rise to this litigation
are that the plaintiff, Bruce Allan Trevorrow, an Aboriginal child, then aged
13 months, was sent by his father Joseph Trevorrow with neighbours from
Meningie to the Adelaide Children’s Hospital on Christmas Day 1957. Joseph
had informed the neighbours that the plaintiff was suffering from stomach
trouble. The neighbours drove the plaintiff to the Children’s Hospital where
he was admitted. The hospital notes recorded that the plaintiff had no
parents. They also recorded that the plaintiff was neglected and
malnourished. According to the hospital records, the plaintiff responded to
treatment and by New Year’s Eve it was noted that he was "going
well". |
|
3 |
At or about that time it appears that Martha Davies
responded to a newspaper advertisement seeking foster care for Aboriginal
babies. On |
|
4 |
The plaintiff and his father never met again. Joseph died
some eight years later. The plaintiff was reunited with his mother, Thora
Karpany, and siblings almost a decade after he was first placed with Martha.
By this time, Thora had remarried and had further children from this
relationship. In 1967, the plaintiff, as a 10-year-old, returned to live with
Thora. That arrangement continued for less than 14 months. The plaintiff
spent the balance of his adolescence in and out of institutions. The
plaintiff claimed that the circumstances of his removal from his mother and
natural family and his ongoing separation for almost a decade has led to
injury, loss and damage. It was the plaintiff’s case that he has led a
troubled life marked by a loss of family and community identity, a loss of
cultural identity, depression, alcoholism, poor health, poor domestic
relations and an erratic employment history. |
|
5 |
Counsel for the plaintiff contended that two Crown
Solicitors, one in 1949 and the other in 1954, advised that the process later
followed in the removal of the plaintiff was not authorised by law and was
beyond power. The plaintiff alleges that he was the subject of misfeasance in
public office and was falsely imprisoned. It was contended that the
defendant, the State of |
|
6 |
The State denied that the plaintiff was unlawfully removed
from his parents, that the APB was an emanation of the State and thereby his
legal guardian, and that there was any duty owed or, if owed, any breach. The
State denied any liability arising from any of the pleaded causes of action. |
|
7 |
The plaintiff sought orders pursuant to the Limitation
of Actions Act 1936 (SA) extending time for the bringing of a
number of the causes of action. The State opposed such orders. With respect
to the claims that did not attract a statutory time limit, pleas of laches
were raised. The State submitted that grave prejudice followed from the delay
in the institution of these proceedings. The State claimed that a number of
important witnesses had died, or were so aged as to be incompetent. |
|
8 |
The management of documents in the trial has posed some
difficulty. The parties could not agree on a common book of documents. In the
event the parties tendered separate and compendious books of documents, each
set organised to suit the presentation of that party’s case. The Court’s
attempt to have the one consolidated set of documents agreed, even late in
the trial, was unsuccessful. Regrettably, a degree of duplication inevitably
resulted. The parties are not to be criticised – extraordinary efforts were
made to assist the Court with aged, difficult to handle and extensive
documentation. A number of documents that appeared to be identical required
close examination as from time to time subtle material differences appear. |
|
9 |
The documentation of the plaintiff’s early years is
extensive. However, in certain respects, records that have and may have
existed have been lost. |
|
10 |
A number of witnesses gave evidence, including witnesses
from the time who were directly involved with the plaintiff as a child. In
assessing that evidence, care has to be taken of the toll that the passing of
time can have on memory. |
|
11 |
There is risk, where a court is being asked to determine
the legal consequences of events that took place four to five decades ago,
that contemporary attitudes of witnesses, experts, legal advisers and of the
court will have an effect on the presentation and determination of the
issues. |
|
12 |
Particular attention needs to be paid to changing
community standards. As Brennan CJ observed in Kruger v Commonwealth:
[2] |
Moreover, when a discretionary power is statutorily
conferred on a repository, the power must be exercised reasonably, for the
legislature is taken to intend that the discretion be so exercised.
Reasonableness can be determined only by reference to the community standards
at the time of the exercise of the discretion and that must be taken to be the
legislative intention. Therefore, it would be erroneous in point of law to hold
that a step taken in purported exercise of a discretionary power was taken
unreasonably and therefore without authority if the unreasonableness appears
only from a change in community standards that has occurred since the step was
taken.
O’Loughlin J drew upon these remarks in Cubillo v Commonwealth (No 2),
where he observed: [3]
It is a truism to say that we live in changing times. What
was accepted yesterday is rejected today. What would not be tolerated yesterday
is accepted today. There are moral and social issues that have in the past
divided, and continue today to divide, sections of the community.
Then later: [4]
[N]ot only is it relevant to have regard to the state of
knowledge, to technology and to standards of conduct and behaviour at the relevant
time, but allowance must also be made for changes in those matters to be
implemented and generally accepted. Again, in determining what is reasonable in
that regard, matters such as the existence of resources and statutory power to
effect change must be taken into account. In some cases, of course, such
changing values may come to be reflected in policy but this can only be done to
the extent that it is not inconsistent with the existing statutory regime.
|
13 |
A court must also consider applicable legislation in the
context of its historical setting. In Kruger one of the issues the
Court had to decide was the legality of conduct governed by provisions of the
Aboriginals Ordinance 1918 (NT). Toohey J observed:[5] |
When the Ordinance is analysed and placed in its historical
setting, is it reasonably capable of being seen as providing a rational and
relevant basis for the discriminatory treatment of persons answering the
description of "Aboriginal or half-caste"? No such basis would
survive analysis today. But, for the reasons advanced earlier in this judgment,
the Ordinance must be assessed by reference to what was reasonably capable of
being seen by the legislature at the time as a rational and relevant means of
protecting Aboriginal people against the inroads of European settlement. That
is a matter of evidence. ...
|
14 |
The present proceedings, as earlier noted, relate to
events that commenced some 50 years ago. However, extensive contemporaneous
documentation relevant to the events was tendered in evidence. This
documentation, largely departmental, most prepared with apparent care and in
accordance with established practices and procedures, allows a relatively
clear understanding of the events, attitudes and policies of the time. From
time to time witnesses were able to speak to documents and the procedures and
practices that led to their creation. In many instances, this has assisted the
process of the court being satisfied that documents were reliable records of
events that occurred and of attitudes and policies of the time. |
|
15 |
Where appropriate, efforts were made by counsel for the
parties to ensure that expert witnesses were directed to evaluate the
circumstances upon which they gave their opinions having regard to the
historical context and the state of knowledge and learning at the relevant
time. |
|
16 |
The Court received into evidence copies of leading
academic texts of the time in the discipline of what would now be termed
child psychiatry. These texts addressed problems arising from the separation
of child from parent. The Court heard from Dr Keith Le Page, a psychiatrist
at the Child Guidance Clinic at times during the 1960s. Dr Le Page was able
to give evidence as to the state of medical knowledge at relevant times
including awareness of attachment theory and of the consequences of the
rupture of mother-child attachment. |
|
17 |
Books, articles, conference minutes and other documents
explaining the underlying policy of applicable legislation were received into
evidence, providing background to assist in an understanding of the
legislation consistent with the views of the mid-1950s and 1960s. |
|
18 |
It is convenient in these reasons to first address the
relationship between the State, its statutory bodies corporate, and relevant
government departments. To understand the plaintiff’s claims and the
relationship between the parties, it is necessary to undertake an overview of
the legislation that governed those relationships. This review will canvass
the legislative history both leading to and following the critical events. |
|
19 |
Next a broad chronology of events will be outlined. This
chronology was subject to little challenge and draws on contemporaneous
documents. A more detailed discussion of particular events will be undertaken
later in these reasons. |
|
20 |
A detailed review of the legislative framework against
which the relevant events occurred and the general government policies then
in place will be addressed before the making of primary findings. Those
findings are best addressed once the legislative regime has been laid out. It
will then be convenient to consider each of the causes of action. |
|
21 |
It may be helpful to note some points pertaining to the
terminology used throughout these reasons. The first relates to the use of
the words "taking", "removal", "placement" and
"fostering". The departmental documents describe the plaintiff as
being "taken" from hospital. When I refer to the plaintiff as being
"removed" from his family, I am describing the process whereby the
plaintiff was taken from the Children’s Hospital and without his parents’
knowledge or consent being given to Martha. I sometimes also describe the
plaintiff as being "placed" with the Davies family. All of these
and like expressions describe the plaintiff being removed from hospital and
given to Martha, instead of being returned to his natural parents. There is
indirect evidence that the plaintiff was formally "fostered".
Martha was eventually licensed as a foster parent. The arrangement was that
Martha would have the long-term control and custody of the plaintiff to the
exclusion of his natural family. |
|
22 |
Some further points regarding terminology include the use
of Christian names in the course of these reasons. It has been convenient to
refer to the members of the Trevorrow and Davies families by their Christian
names in order to avoid confusion that could arise by having to refer to
several people sharing a common surname. However, at times throughout these
reasons the context calls for use of surnames as well. |
|
23 |
When referring to the Aborigines Act 1934-1939 (SA)
and Maintenance Act 1926-1937 (SA) I have included the years of the
Acts, in order to avoid any confusion that might arise due to the fact that
several Acts were enacted over the years with similar titles. With the exception
of the Aborigines Department, all State departments and boards have been
referred to by initialisms – APB for the Aborigines Protection Board, CWPRB
for the Children’s Welfare and Public Relief Board, and CWD for the
Children’s Welfare Department. |
|
24 |
By way of introduction it is important to have an
awareness of the government entities involved in the events the subject of
the action and their interrelationship. An issue at trial was whether certain
entities were emanations of the State. I have concluded later in these
reasons that all relevant entities in particular the APB and the CWPRB, were
emanations of the State and that accordingly the State was and remains
responsible for their actions and conduct. I consider the terms
"emanation", "instrument" and "agent" to be
largely interchangeable, and their use in these reasons varies only according
to the context in which they are used. |
|
25 |
The APB, a body corporate under the Aborigines Act
1934-1939, had an overseeing or executive responsibility in dealing with
a number of indigenous issues. The secretary of the APB was also the
permanent head of the Aborigines Department. He was a Crown employee
appointed pursuant to and subject to the Public Service Act 1936-1938 (SA).
The conduct of the APB’s affairs was primarily carried out by officers of the
Aborigines Department at the direction of the permanent head of the
Department, and through him, at the direction of the APB. In the early 1960s
the Aborigines Act 1934-1939 was repealed, the APB ceased to exist and
was replaced by the Aboriginal Affairs Board. The Aborigines Department
continued but was renamed the Department of Aboriginal Affairs. |
|
26 |
The CWPRB, a body corporate under the Maintenance Act
1926-1937 discharged public welfare duties generally within the State.
This board primarily discharged its responsibilities through officers of the
CWD.[6] The CWPRB and officers of the CWD had duties in regard to
the fostering of children and responsibility from time to time for indigenous
matters. As discussed in detail later, there were areas of common statutory
responsibility between the APB and CWPRB. |
|
27 |
Another government entity, the Child Guidance Clinic,
appears to have operated as part of the Health Department of South Australia
and had responsibilities with regard to children generally, including
indigenous children. The documents from the time establish that referrals were
made to the Child Guidance Clinic from a number of government agencies
including the CWD, the Aborigines Department, the Department of Aboriginal
Affairs and the Education Department. |
|
28 |
A medical officer at the Child Guidance Clinic, Jeannie
Moffatt, undertook responsibilities toward the plaintiff. It appears that the
initial referral to the Child Guidance Clinic was made in 1966 by Barbara
Reiff, an officer of the Department of Aboriginal Affairs. Dr Moffatt
continued to have contact with the plaintiff until early 1970. |
|
29 |
Relevant to the present proceeding is a consideration of
whether the plaintiff’s removal from the Children’s Hospital and placement
with Martha were undertaken at the immediate direction of the Aborigines
Department with the authority of the APB, or in the alternative, in
circumstances ratified and adopted by the APB, or otherwise. |
|
30 |
The licensing of Martha as a foster mother was apparently
undertaken by the CWD, however, maintenance payments to Martha were
authorised and made by the APB. Officers of the Aborigines Department dealt
with inquires by the plaintiff’s natural mother with respect to the
plaintiff. Later, when the plaintiff presented behavioural problems, he was
referred to the Child Guidance Clinic by the Department of Aboriginal Affairs
who appeared to have accepted the responsibility for the placement with the
Davies. The return of the plaintiff to his mother in 1967 appears to have
been undertaken at the direction and under the control of the Department of
Aboriginal Affairs in consultation with the Child Guidance Clinic. In 1968,
following a court order, the plaintiff was placed in the care of the Minister
of Social Welfare and accordingly became a State child. |
|
31 |
Before coming to discuss the events giving rise to this
action, as earlier observed, it is necessary to put those events into the
context of the statutory scheme addressing Aboriginal children at the time.
Aspects of this scheme will be discussed in detail later in these reasons. |
The Statutory Scheme
|
The statutory scheme in place at the time of the
plaintiff’s removal from his natural family entrusted two bodies with roles
to play in ensuring that Aboriginal children in need were properly cared for
– the APB and the CWPRB. |
|
|
33 |
Pursuant to section 7 of Aborigines Act 1934-1939,
the APB had the following duties: |
(a) to apportion, distribute, and apply, as seems most fit, the moneys at
the disposal of the board:
(b) in its discretion, to apply part of the moneys at its disposal in the
purchase of stock and implements to be loaned to aborigines to whom land has
been allotted under section 18, and may supply the same accordingly either
without payment or on such terms as are approved by the board, and no person
shall, except with the approval of the board, acquire any title to any goods or
chattels so loaned as aforesaid:
(c) to distribute blankets, clothing, provisions, and other relief or
assistance to the aborigines:
(d) to provide, as far as practicable, for the supply of food, medical
attendance, medicines, and shelter for the sick, aged, and infirm aborigines:
(e) to provide, when possible, for the custody, maintenance and education of
the children of aborigines:
(f) to manage and regulate the use of all reserves for aborigines:
(g) to exercise a general supervision and care over all matters affecting
the welfare of the aborigines, and to protect them against injustice,
imposition, and fraud.
|
34 |
The APB was the legal guardian of Aboriginal children.
Section 10 provided: |
(1) The board shall be the legal guardian of every aboriginal child,
notwithstanding that any such child has a parent or other relative living,
until such child attains the age of twenty-one years, except whilst such child
is a State child within the meaning of the Maintenance Act, 1926.
and further provided:
(2) Every protector shall, within his district, be the local guardian of
every such child within his district.
(3) Such local guardian shall have and exercise the powers
and duties prescribed.
|
35 |
Section 17(1) of the Aborigines Act 1934-1939 provided
that the APB could place an Aboriginal person within a reserve or Aboriginal
institution: |
The board may cause any aborigine to be kept within the
boundaries of any reserve or aboriginal institution, or to be removed to and
kept within the boundaries of any reserve or aboriginal institution, or to be
removed from one reserve or aboriginal institution to another reserve or
aboriginal institution, and to be kept therein.
It should be immediately observed that this subsection had no part to play
in the removal or placement of the plaintiff.
|
36 |
Under the legislative scheme in place, the CWPRB, pursuant
to the Maintenance Act 1926-1937, bore the statutory
responsibility for caring for children in need, whether Aboriginal or
otherwise. |
|
37 |
The legislative scheme envisaged that the two boards would
work together. Importantly, section 38 of the Aborigines Act 1934-1939 provided
that the APB and the CWPRB were authorised to work in concert to effect the
removal of an Aboriginal child according to law: |
The [APB] may, with the approval of the [CWPRB] constituted
under the Maintenance Act, 1926, commit any aboriginal child to any institution
within the meaning of the Maintenance Act, 1926, under the control of the
[CWPRB], to be there detained or otherwise dealt with under the said Act until
such child attains the age of eighteen years.
As will become evident, the section 38 process was a cause of ongoing
tension between the boards.
|
38 |
Evidence before the Court demonstrated that the State, its
emanations the APB and the CWPRB, relevant Ministers and officers of the
Aborigines Department and the CWD, were all of the understanding that the
State was powerless to remove Aboriginal children from their parents absent compliance
with relevant provisions – sections 17 and 38 of the Aborigines Act
1934-1939, and section 102 of the Maintenance Act 1926-1937 or
with the consent of the child’s parents. |
|
39 |
Section 102 of the Maintenance Act 1926-1937
provided that where a court was satisfied that the child was destitute or
neglected, it could: |
(a) order such child to be forthwith sent to an institution, to be there
detained or otherwise dealt with under this Act until such child attains the
age of eighteen years; or
(b) by an order in writing place such child in the custody and under the
control of the [CWPRB] until such child attains the age of eighteen years.
Crown Solicitors’ Advices
|
On |
These powers, however, are of a general nature and of
themselves are not, in my opinion, specific enough to authorise the removal of
aboriginal children from their parents.
|
41 |
Notations appear on the minute that evidence the following
events. On |
To the [APB]
The Crown Solicitor has advised that the [APB] has no authority to remove
aboriginal children from their parents except by concerted action with the
[CWPRB], as provided in section 38 of the Aborigines Act, 1934-39.
|
42 |
Accordingly, it is clear that by August 1949, the
Attorney-General, the Minister of Works, the chairman and secretary of the
APB and the APB itself were all aware of the Crown Solicitor’s advice, that,
beyond the procedures prescribed in section 38 of the Aborigines Act
1934-1939, the APB did not have the power to remove Aboriginal children
from their parents. As earlier observed, the secretary of the APB was also
the head of the Aborigines Department. As a result, the Department was aware
of the advice of the Crown Solicitor. |
|
43 |
Evidence before the Court revealed that the CWPRB was
unwilling at relevant times to accept and perform its statutory role in
providing for neglected or destitute Aboriginal children. |
|
44 |
In November 1953, the chairman of the CWPRB advised the
Honourable Chief Secretary that a court had placed an Aboriginal child under
the custody and control of the CWPRB and that this was a problem for the
CWPRB. The perception of the chairman of the CWPRB was that various
authorities had tried to avoid problem Aboriginal children by placing them
under the guardianship of the CWPRB. The CWPRB had resisted because it considered
it would be undesirable to place "difficult, native children" into
its institutions because the institutions were not considered suitable. The
chairman of the CWPRB observed that the mixing of white and
"native" children was not always successful and that staff at the
institutions might be upset through having to handle "native"
children. The CWPRB considered the APB should be responsible for such
children. The chairman requested the Chief Secretary to refer the matter to
the APB for appropriate action.[7] |
|
45 |
In or about May 1954 the secretary of the APB noted that
it was well known that the CWD would not accept Aboriginal children except in
extreme cases.[8] As a result when an Aboriginal child was reported as
neglected, uncontrolled or orphaned the secretary of the APB stated that he
had been "forced to beg religious organisations to accept these children
into their Homes".[9] |
|
46 |
In June 1954, the CWPRB sought advice from the officer in
charge of its Prosecution Branch regarding its duty to Aboriginal children
living under unsatisfactory circumstances. The board was advised that it was
justified in taking the attitude that the welfare of Aboriginal children was
a matter for the APB at least in the first instance and not for the CWPRB. |
|
47 |
This tension between the two boards prompted the
Attorney-General to again seek the advice of the Crown Solicitor. In a minute
to the Attorney-General dated 13 August 1954 and entitled, "Aboriginal
Children – Children’s Welfare and Public Relief Board and Aborigines
Protection Board", the then Crown Solicitor, R. R. St. C. Chamberlain
confirmed the 1949 advice provided by Mr Hannan. Mr Chamberlain gave the
following advice: |
Sections 5 and 7 of the Aborigines Act, 1934-39, provide
that the [APB] is charged with the duty of controlling and promoting the
welfare of aborigines, particularly in the matters mentioned in section 7 of
that Act, and section 10 provides that the [APB] shall be the legal guardian of
every aboriginal child until he attains 21 years of age, except whilst such
child is a State child within the meaning of the Maintenance Act.
Primarily, therefore, the [APB] should provide for the control, welfare,
maintenance and education of aboriginal children.
Destitute, neglected or uncontrolled children
An aboriginal child should not become destitute or neglected, because the [APB]
is its legal guardian and charged with the duty of providing for its welfare,
and if the Board’s attention is drawn to a particular case of apparent
destitution or neglect, no doubt the Board would take steps to relieve the
situation.
If, however, the [APB] cannot, or does not take action, or if, despite that
Board’s efforts, an aboriginal child became destitute, neglected or
uncontrolled, I see no legal reason why action should not be taken under
section 102 of the Maintenance Act, 1926-1952. The Aborigines Act does not
contain similar powers.
Illegitimate children under 7 years of age
The [APB] has a general duty under its Act "to provide, when possible, for
the custody, maintenance and education of the children of aborigines"; see
section 7(e). It has no express power to enter the homes of aboriginal
children, such as the [CWPRB] has, pursuant to section 16(1) IV[10] and section 189[11] of the Maintenance
Act, 1926-1952. The [APB’s] powers with regard to the custody
and control of aboriginal children are limited to removing children to an
aboriginal reserve or institution under section 17(1) and to the removal of
certain children, with the consent of the [CWPRB] to an institution within the
meaning of the Maintenance Act pursuant to section 38 of the Aborigines Act.
There is nothing in the Aborigines Act to prevent the [CWPRB] exercising its
powers under section 16(1) IV and section 189 of the Maintenance Act with
regard to aboriginal illegitimate children under seven years of age except
where such children may have been removed to an aboriginal reserve or
institution.
Children under seven years of age, living with other than near relatives.
Section 188, Maintenance Act.
In these cases the [CWPRB] may exercise its powers under section 188 of the
Maintenance Act subject only to the exercise by the [APB] of its powers under
Sections 17(1) and 38 of the Aborigines Act.
[emphasis added]
|
48 |
On 24 August 1954, the CWD forwarded to the APB a copy of
the opinion of the Crown Solicitor, Mr Chamberlain, dated 13 August 1954, and
reiterated that the CWPRB "is not anxious, for several reasons, to have
aboriginal children in our Departmental Institutions housing neglected and
destitute children"[12]. |
|
49 |
The effect of this attitude was reflected in the minutes
of the APB dated 15 December 1954 when the case of an apparently neglected
Aboriginal child was drawn to the attention of the APB by the CWD but neither
took action, and the child was returned to her mother. The minutes of the APB
record: |
The Secretary reported that information had been received
from the Northfield Infectious Diseases Hospital that a part-aboriginal
child..., had been admitted to hospital smothered with impetigo sores and
apparently neglected. The Medical Officer considered it was wrong for the child
to be returned to her parents. A communication had been received from the [CWD]
suggesting that the case apparently would be one with which this Department
would be interested and able to make the necessary arrangements for the care of
the child. It was noted that no aboriginal child can be considered to be
neglected or destitute as the [APB] is the legal guardian of any such child,
and should a child be found in the condition above-mentioned it would be
necessary for the [APB] to take steps to correct the position. As Colebrooke
Home and Umeewarra Mission are already overcrowded there is no other Home in
which the child could be accommodated. It was agreed that no action could be
taken and that the child should be returned to her mother at Point McLeay.
|
50 |
In January 1955, the deputy chairman of the APB considered
that it was the duty of the APB to see that Aboriginal children were provided
for, and not necessarily to provide for them, and that it was the duty of the
CWD to take charge of neglected or orphaned part-Aboriginal children. |
Relationship between the APB and
the CWPRB
|
51 |
In about January 1956, the secretary of the APB and the
chairman of the CWPRB met to discuss neglected and delinquent Aboriginal
children. As a result, the secretary of the APB prepared a report for the
consideration of the CWPRB, explaining that the legislation clearly intended
that where, despite the best efforts of the APB, Aboriginal children were
destitute, neglected or uncontrolled those children were the responsibility
of the CWPRB. The CWPRB was pressed to accept as State children all
destitute, neglected and uncontrolled Aboriginal children, as provided in
existing legislation. The recommendation to the CWPRB was that the provisions
of section 38 of the Aborigines Act 1934-1939 were to be invoked in
the case of neglected, destitute or uncontrolled "full blooded
aboriginal children" and the provisions of the Maintenance Act
1926-1937 were to be invoked in the case of "part aboriginal"
children. |
|
52 |
It is clear from minutes of the secretary of the APB, that
it was his understanding that the APB did not have the power to remove
destitute or neglected children from their parents. On 3 February 1956, in a
minute from the secretary of the APB to the chairman of the CWD, the secretary
advised: |
The Aborigines’ Act 1934/39 charges the [APB] with the duty
of controlling and promoting the welfare of aborigines and provides that
"each member of the [APB] shall be the legal guardian of every aboriginal
child.....until the child attains the age of 21 years, except where such child
is a State child within the meaning of the Maintenance Act". Provision is
made for the [APB] to expend monies placed at its disposal for the custody,
maintenance and education of the children of aborigines but does not provide
for their removal to an institution or any place where they could be maintained
or educated. The Crown Solicitor has ruled that, although the [APB] are the
legal guardian of aboriginal children the fact of their being so does not
permit them to remove the children from their parents whether neglected or not.
[emphasis added].
|
53 |
The secretary of the APB further stated in the minute of 3
February 1956 that despite the advice of the Crown Solicitor with respect to
section 17, the secretary did not consider that the APB had the power to
remove Aboriginal children and place them within the boundaries of an
Aboriginal reserve: |
Section 17(1) of the Act does, however, provide that
aborigines may be removed and kept within the boundaries of an aboriginal
reserve or institution, and the Crown Solicitor is of the opinion that children
could be removed from their parents under this Section, but obviously this
was not the intention of the legislation.
The secretary continued:
Other matters, such as the [APB] being charged with the duty
of providing for the custody, maintenance and education of the children of
aborigines are, according to the Crown Solicitor, of a general nature and not
specific enough to authorize the removal of aboriginal children from their
parents, regardless of the fact that Section 42(1) III provides for regulations
to be proclaimed enabling an aboriginal child to be sent to or detained in an
aboriginal institution or industrial school.
...
It would appear that the legislation concerned clearly intended destitute,
neglected or uncontrolled aboriginal children to be the responsibility of the
[CWPRB], otherwise provision would have been made in the Aborigines’ Act for
the removal of such children, and the power to transfer the control of such
children to the [CWPRB] would otherwise not have been included.
In view of the fact that the Aborigines’ Act does charge the [APB] with the
duty of controlling and promoting the welfare of the aborigines and in
providing that the [APB] shall be the legal guardian of every aboriginal child,
it would appear that primarily the [APB] should provide for the control,
welfare, maintenance and education of aboriginal children which in effect it
does. Where, however, a child is destitute, neglected or uncontrolled, and any
action taken by the [APB] does not, despite the [APB’s] effort, improve the
situation, which frequently happens, then it would seem that the [CWPRB] should
approve of the transfer of control of the child to [the CWPRB]. Unfortunately,
the Crown Solicitor has ruled that an aboriginal child should not become
destitute or neglected because of the fact that the [APB] is its legal guardian
and charged with the duty of providing for its welfare. Although legally this may
be the position, any practical action taken by the [APB] through the officers
of this Department rarely improves the situation.
The [APB] have on many occasions discussed the question of destitute, neglected
or uncontrolled aboriginal children and finds with their limited authority that
it is quite impossible to adequately or satisfactorily care for such neglected
children.
|
54 |
On 18 April 1956, the chairman of the CWPRB responded to
the minute of the secretary of the APB: |
The [CWPRB], after carefully considering your apparent
difficulties in adequately controlling and caring for aboriginal children (vide
your minute herein of the 3rd February), is of the opinion that
these children should be provided for in the following way.
The part aboriginal, whether exempted or not, who is living a fully independent
life, earning and paying rates and taxes, should be accepted into our community
life. Neglected or destitute children from this group should be subject to
the same court orders as other children and should continue to be placed, when
necessary, in our departmental institutions with white children.
All other destitute or neglected aboriginal or part aboriginal children should
continue to be the responsibility of the [APB]. In some cases, eg myall
aboriginals living a tribal life, etc, it would be unthinkable to remove the
children from their parents. In others, it seems hardly right to expect this
Department to admit these children into departmental institutions when it has no
power or authority in the matter of improving their usual living conditions.
So it is suggested and preferred that the [APB] endeavours to establish
institutions for the purpose and seek any legislative authority deemed
necessary to adequately control and care for these destitute or neglected
aboriginal children.
[emphasis added]
|
55 |
In conformity with the chairman of the CWPRB’s minute of
18 April 1956, on 13 June 1956, the CWPRB notified the APB that the latter’s
request to have an Aboriginal child committed to one of the institutions run
by the CWPRB was refused. |
|
56 |
The secretary of the APB noted that the matter had reached
a stage where urgent action was required because the Aborigines Department
had limited resources and the CWPRB refused to accept Aboriginal children
because they considered those children to be the responsibility of the APB.
He recommended that the matter be referred to the Minister. |
|
57 |
At a special meeting of the APB on 18 May 1956, the APB
agreed the whole matter should be referred to the Minister of Works who may
wish to discuss these matters with the Minister in control of the CWPRB and
submit the matter to Cabinet. |
|
58 |
On 18 May 1956, the secretary of the APB wrote to the
Minister of Works to raise the CWPRB’s refusal to accept Aboriginal children
into its institutions and to seek urgent assistance given the invidious
position that the APB, as the legal guardian of such children, was placed in as
a result. The secretary concluded: |
It is essential and an urgent matter that either one of the
Boards concerned or, to some extent, both of them, accept the responsibility of
caring for these unfortunate children. My Board have agreed to forward this
matter for the consideration of the Honourable Minister as, to a large extent,
it is a question of Government policy. The Honourable Minister may wish to
discuss these matters with the Minister in control of the CWPRB and/or
submit this matter to Cabinet for an expression of Government policy.
|
59 |
The unsuccessful attempts on the part of the APB to press
the CWPRB to accept responsibility for neglected or destitute children
continued. At the same special meeting the APB agreed that the provisions of
section 38 of the Aborigines Act 1934-1939 should be invoked in
relation to a child who had been reported as neglected.[13] However, as earlier observed, the CWPRB refused to approve
the committal of the child. Instead the chairman of the CWPRB wrote to the
secretary of the APB and advised: |
That my Board, after considering the matter, decided not to
approve of the committal of this child to a Departmental Institution.
This ruling is in conformity with my Board’s previous decision on the general
question of the committal of Aboriginal children to this Department’s
institutions. This was advised to you on the 18th April last ...
|
60 |
On 20 June 1956, the secretary of the APB reported this
refusal by the CWPRB to approve the child’s committal and advised that the
child had been removed from her parents and "temporary
arrangements" were made for her to be admitted to the Methodist Babies
Home. The Minister was also advised of these arrangements and provided with a
copy of the letter from the CWPRB, but nothing happened. |
|
61 |
In its annual report to Parliament for the year ending 30
June 1956, the APB pressed its opinion that the CWPRB should act in the case
of neglected Aboriginal children.[14] |
|
62 |
Five months after the APB had raised this issue with the
Minister of Works and in the absence of any response, the APB again raised
the matter with the Minister. This time it was in connection with a child who
had been committed to the care of the CWPRB by the Education Department for
being habitually absent from school. The CWPRB had asked the APB to make a
contribution to the maintenance of the child.[15] |
|
63 |
On 30 October 1956, the secretary of the APB wrote to the
secretary of the CWD, asking that the CWD place a neglected child. The
secretary of the CWPRB replied that the child could not be admitted to one of
their institutions. Subsequently, the secretary of the APB wrote to the
Minister informing of the invidious position with which the APB was
confronted in light of the CWPRB’s refusal to perform its statutory role and
again requesting governmental action: |
The [APB] have previously drawn attention to the fact that there
are neglected aboriginal children throughout the State for which the [APB]
is responsible, but because of lack of legislation, no action can be taken
to correct the position.
The [APB] has no power to remove children from their parents but the
Aborigines Act, 1934-39 does provide that the [APB] may, with the approval of
the [CWPRB], commit any aboriginal child to any institution within the meaning
of the Maintenance Act. Unfortunately, the [CWPRB] will not approve of such
transfers being made.
Recently information was received in this office that [blank], born on 6th
September 1955, the illegitimate daughter of [blank] and supposedly [blank] was
in the Port Augusta Hospital in an advanced state of malnutrition. A few weeks
ago, the Senior Welfare Officer of this Department saw this child during a
visit to the mother’s camp and impressed upon the mother the necessity of
properly feeding and caring for the child. The mother was also warned that
unless the child received more care, it would be placed in a home.
The Port Augusta Hospital Authorities state that the child was received at the
Hospital in a shocking state and should not, under any circumstances, be
returned to her mother.
Following this information, the [CWPRB] were approached requesting that the
child be admitted to one of their institutions. The Secretary of the [CWPRB]
has now replied that the child cannot be admitted.
My Board are desirous that its recommendation in regard to the care and control
of neglected aboriginal children should be submitted to the Government for a
direction as to whether the [APB] or the [CWPRB] should accept the
responsibility for these children.
[emphasis added]
|
64 |
This minute from the secretary of the APB discloses that,
in the opinion of the APB itself, the APB did not, under the Aborigines
Act 1934-1939, possess the power to remove Aboriginal children from their
parents, regardless of the circumstances, without the approval of the CWPRB.
In the secretary’s view, the APB required such power in order to properly
execute its role and duty as the legal guardian of Aboriginal children, but
it is clear from the above that in his view, the APB lacked such power. |
|
65 |
As a result of this refusal on the part of the CWPRB to
co-operate and without having received a response to the earlier minutes, the
secretary of the APB wrote again to the Minister, reiterating the request
"for a direction as to whether the APB or the CWPRB should accept the
responsibility of these children". In turn, the then Acting Minister of
Works referred the matter to Cabinet. The matter was then referred by Cabinet
to the Attorney-General. |
|
66 |
The Minister of Works wrote to the secretary of the APB on
21 November 1956 and asked that he confer with the CWPRB and with the
Parliamentary Draftsman. |
|
67 |
In January 1957, the secretary of the APB reported to the
Minister of Works that he had conferred with the CWD. In the course of his
report he added: |
I have conferred with the Parliamentary Draftsman as to
whether legislation would be required to enable the [APB] to establish
institutions for aboriginal children and beg to advise that the Parliamentary
Draftsman is of the opinion:-
(1) While the [APB] probably has the implied power to establish institutions
for aborigines or special classes of aborigines, the Act is not clear at this
point and if it is desired to establish such institutions, it is desirable to
provide expressly for such an establishment by legislation.
(2) As regards compulsory separation of neglected aboriginal children from
their parents and their detention in institutions, it would be desirable to
make the powers clear.
(3) The [APB] is of the opinion that the Juvenile Court should have power to
order the detention of children in aboriginal children’s institutions but this
cannot be done without additional legislation.
My Board are most anxious that some early action be taken in
order that neglected aboriginal children throughout the State can be adequately
cared for.
|
68 |
The secretary of the APB wrote again to the Minister on 1
May 1957: |
As you are aware, the [CWPRB] in this State refuse to accept
any responsibility for full-blood aborigines and only for part aboriginal
children where they are living a fully independent life, earning and paying
rates and taxes, and accepted into the community life. The [CWPRB] are of the
opinion that all other destitute or neglected aboriginal or part aboriginal
children should continue to be the responsibility of the [APB], and they have
suggested and prefer that the [APB] endeavours to establish institutions for
the purpose, and seek any legislative authority deemed necessary to adequately
control and care for these neglected and destitute children.
The secretary also informed the Minister of the legislative scheme in
Victoria, and noted that, unlike South Australia, the children’s welfare
authority in Victoria accepted responsibility for Aboriginal children.
|
69 |
In the meantime, due to the CWPRB’s consistent and
repeated refusal to provide care for neglected, destitute and uncontrolled
Aboriginal children, alternative and informal arrangements were made for
dealing with these children. Notwithstanding the Crown Solicitors’ advices
and the APB’s and the Aborigines Department’s view of their limited legal
authority and power, officers of the Aborigines Department arranged for the
placement of Aboriginal children in foster homes and religious institutions.[16] The APB approved the payment of maintenance for those
children. |
|
70 |
In June 1957, the Minister of Works noted that the South
Australian Premier had suggested the CWD should take care of neglected
Aboriginal children. |
|
71 |
However, in October 1957, the position remained unchanged.
The secretary of the APB advised the Umeewarra Mission, Pt Augusta that
"the CWPRB will not charge these children as neglected, nor accept them
into their Homes, and as you know the APB has no authority to do so". |
|
72 |
In November 1957, the secretary of the APB advised the
Minister of Works that the CWPRB still considered that neglected Aboriginal
children should be the responsibility of the APB, except those who were
living a fully independent life, and that in practice the CWPRB would not
accept neglected Aboriginal children. |
|
73 |
It is relevant to note at this stage that the foregoing
remained the attitude and practice of the CWPRB until October 1960 when the
chairman of the CWPRB advised the Chief Secretary of a shift in the board’s
attitude. He advised that whilst the CWPRB was not in favour of utilising the
procedures under section 38 of the Aborigines Act 1934-1939, it would
accept children committed to it by a court. The chairman noted that the CWPRB
and officers of the CWD would confer with the APB and its officers, on
request, in matters where court action was contemplated. In particular, in
his minute the chairman reported: |
The [CWPRB] is not in favour of acting administratively
with the [APB] to make an aboriginal child a State child, although this is
provided for in the Aborigines Act, because there would usually be objection
from the child or his relatives, and the [CWPRB] prefers, in such cases, that a
Court should decide whether the liberty of the individual should be restricted.
If an aboriginal child is committed to the [CWPRB] by a Court, the Department
will receive him and deal with him until the expiration of the mandate. If the
charge is under the Education Act, this will be only until the child is of
school-leaving age. In other cases it would be until he is 18 years. Since
January, 1960, the [CWD] has received into its Institutions 19 aboriginal or
part-aboriginal children, in addition to some who have been re-admitted
following committals in previous years. Eighteen of these 19 children were
neglected and one was uncontrolled.
The [CWPRB] is still of opinion that aboriginal children living a tribal life
should be dealt with by the [APB]. In cases where aboriginal children are
living on aboriginal reserves or in aboriginal institutions, the [CWPRB] feels
that the [APB] should care for and control them, at least until a Court commits
them to a [CWD] Institution. Where aboriginal children are not living under
primitive conditions or in aboriginal reserves, they may reasonably be dealt
with in the same way as white children in similar circumstances. Where
aboriginal children have been living as members of the community there is less
difficulty in their adjustment to life with white children in [CWD]
Institutions. Where, however, aboriginal children have been living primitively,
it is to their own disadvantage to be placed precipitately in an all-white
environment.
The [CWPRB] therefore respectfully RECOMMENDS that necessary additional
legislative authority should be afforded the [APB] to ensure provision for
aboriginal children living in a primitive or near primitive life. The [CWPRB]
will deal, as it has in the past, with other aboriginal children who are
committed to it by the Courts.
The [CWPRB] and its officers will confer, on request, with the [APB] and its
officers in those cases where court action may be thought necessary and whether
preliminary discussions are considered appropriate. Where aboriginal children
are committed to the [CWPRB], it will be to the children’s advantage if the
[APB] makes available its facilities as needed.
|
74 |
It is clear from the above discussion regarding the
tension between the APB and the CWPRB that the APB itself considered that in
the absence of approval from the CWPRB, it lacked the legal authority and
power to remove Aboriginal children from their parents. In a letter dated 16
October 1958 to his counterpart in the State of Victoria, the Superintendent
of Aborigines Welfare, the secretary of the APB responded to a number of
inquiries made by the Victorian Aborigines Welfare Board regarding the
practices and policy for the care and protection of Aboriginal people in
South Australia. In relation to Aboriginal children, the secretary of the APB
wrote: |
I cannot prove that there is, but I feel sure that a higher
mortality rate is evident amongst aboriginal children than those of other
descent. Unfortunately, there is a considerable amount of under-nourishment,
malnutrition and many cases of neglect. Aborigines, despite encouragement and
assistance, when the time comes they do as they desire. You are no doubt aware
that they do not prepare meals as we do, nor will they take proper care of
utensils, etc. when feeding babies. In fact, quite frequently they do not seem
to worry whether the child is fed or not. Very few aboriginal children are
given breakfast before attending school, and of course a lot of their income is
wasted in the purchase of cool drinks, lollies, tinned foods, and unfortunately
in gambling and the purchase of intoxicants. There is not a high proportion of
aboriginal children who are wards of the State, simply because our
legislation does not provide that neglected children can be removed from their
parents, except by transfer to the [CWPRB] who in any case, will not accept
them. At the present time, although I would ask you to treat this as
confidential, a Bill is in the course of preparation whereby it is hoped that
the Board will have authority to charge children as neglected and commit them
to homes and institutions. Again in confidence, for some years without legal
authority, the Board have taken charge of many aboriginal children, some are
placed in Aboriginal Institutions, which by the way I very much dislike, and
others are placed with foster parents, all at the cost of the Board. At the
present time I think there are approximately 300 children so placed, and the
cost of maintaining these children during this financial year will be over
[sterling]30,000. As often as possible we arrange for this type of child to be
adopted, necessarily of course, with the authority of the parents.
[emphasis added].
|
75 |
On 20 October 1958, the secretary of the APB, in a minute
to the members of the board wrote: |
You are aware that for some years there has been concern
regarding neglected and destitute aboriginal children, who are not being
accepted by the [CWPRB].
You are also aware that there is no legal provision for the Board to remove an
aboriginal child from its parents whether neglected or not.
|
76 |
This was confirmed in a memorandum dated 11 November 1958
from the secretary of the APB to the staff of the Department, which all staff
members initialled to indicate that they had read and noted the document. In
the memorandum, the secretary emphasised that staff were not permitted to
discuss with or provide information to any outside party regarding the
legislation, the powers of the APB or the removal of Aboriginal children. The
memorandum stated: |
TO ALL STAFF FOR NOTING
In the local press it was recently stated that the Aborigines Advancement
League have formed a committee to review the provisions of the Aborigines Act,
1934/39. In the press article special mention was made regarding the Board’s
powers in connection with neglected aborigine children.
Please note that no member of the staff is permitted to discuss any matters in
connection with legislation as it is at present or any possible amendments to
the Aborigines Act.
It is permissible to discuss what is recognised as Board policy, but even then
every care should be exercised that any remarks of any officer do not cause
embarrassment to the Board or the Department.
In particular, no information is to be made available as to the powers of
the Board as provided in the Act, especially as regards the removal of
aboriginal children from their parents. All such enquiries are to be directed
to the Secretary.
[emphasis added]
The chief welfare officer, John Weightman and welfare officers Marjory Angas
and Brian Bennett, were amongst those staff members who received the
memorandum. This memorandum evidences the acute sensitivity surrounding the
APB’s practice of removing Aboriginal children.
|
77 |
Mr Bennett, a former welfare officer with the Aborigines
Department and its successor the Department of Aboriginal Affairs, gave
evidence that he understood that only the CWD had the power to remove
children. He understood that the practice at the time was to consult with the
CWD when there was a concern that a child was neglected and there was a need
for intervention. The following exchange took place during cross-examination: |
Q As at the middle of 1958, you were aware that there was some sensitivity
in the department about whether or not the department had legal power to remove
children from their parents. Do you remember that concern.
A From my memory, the department didn't have the power to do
it. The [CWD] did.
Q You were aware that the [APB] did not have legal power to take children
from their parents.
A I can't remember what the Act says. I mean, that's a long time ago. I
don't know what the Act says prior to when it was changed in 1960 something.
Q But you were certainly aware that the department you worked for did not
have legal power to take Aboriginal children from their parents.
A No, I believed that the [CWD] had that power.
Q And that's a different department.
A Yes.
...
Q You believed that your department did not have legal power to take
children from their parents.
A I don't know what date and I'd have to look at the Act. I can't recall
that. Could I qualify that by saying that I don't believe that I, at any time
during my career as a welfare officer, had the power to remove an Aboriginal
child from its parents.
Q You thought that you did have power to bring the [CWD’s] attention to a
child if you had concern about that child.
A Certainly.
Q You were aware that there was a process by which the [APB] and the [CWPRB]
could agree about how the child was to be dealt with.
A I don't know that there was any collusion. I believe that the [CWD] made
up their minds. They were the ones that went to court and took the child to
court. I would only go as a witness. I didn’t have any powers.
|
78 |
The APB’s lack of power to remove Aboriginal children from
their parents was again recognised by the secretary of the APB in a minute to
the Minister of Works dated 20 April 1959, which commenced with the
following: |
It should be clearly understood that the [APB] have no
authority to remove aboriginal children from their parents.
|
79 |
In a letter to Pastor Eckermann dated 19 May 1960, the
secretary of the APB again recognised that the APB lacked power to remove
Aboriginal children: |
For your information only I have to inform you that legally,
I have no right to remove a child from its parents. However, in such cases I do
so and where deemed necessary we refuse to allow the child to be returned to
it’s parents without my consent.
If you so desire you can inform the mother of the child that it has been placed
in your Children’s Home at my direction and cannot be released to the mother
without my written consent. You should add that I will not likely consent to
the child being released until such time as the mother is properly accommodated
and able and willing to care for the child in a proper manner.
[emphasis added]
|
80 |
Correspondence reveals that there developed a departmental
practice within the Aborigines Department in approaching Aboriginal families
with the purpose of encouraging parents to place their children in foster
homes. On 15 May 1959, the secretary of the APB sent a letter to the officer
in charge at Meningie stating: |
Please find enclosed a copy of letter forwarded to [Joseph],
suggesting that he place his two boys under the care of the [APB].
It would be appreciated if you would try to persuade [Joseph] that this
would be in his children’s best interests.
[emphasis added]
|
81 |
On 27 May 1959, the secretary of the APB wrote another
letter to the officer informing him: |
If the Welfare Staff of this Department becomes aware that
an illegitimate child is being in any way neglected, it is necessary for such
matters to be reported to the [CWPRB].
On 15 March 1960 the secretary of the APB further wrote:
I have received a letter from [Joseph] in which he makes
application for relief on behalf of his children, Hilda and Tom Lampard, known
as Trevorrow.
An Officer from this Department has approached [Joseph] re the placement of his
children on a number of occasions and I would suggest that they should be
placed in foster homes.
It would be appreciated if you could approach [Joseph] regarding the placement
of his children.
The officer in charge responded:
I have to advise that I have this date interviewed [Joseph]
in regards to the placement of his children as suggested by this letter. I
pointed out various advantages that the children would gain by such a placement
but [Joseph] is still very reluctant to give any consent to such a move. He
still claims that they are well fed, which they are, and also that Rita
Trevorrow is now keeping house full time for all of them.
|
82 |
The above references make clear that at relevant times to
these proceedings the APB did not consider that either it, or the Aborigines
Department, had the power to remove Aboriginal children from their parents
without there being compliance with the earlier mentioned statutory
processes. |
|
83 |
This discussion about the legislative scheme provides
evidence of the governmental background against which the plaintiff’s removal
and fostering are to be considered. The plaintiff was dealt with at a time of
tension between relevant government entities and in circumstances where all
the relevant entities were aware of and concerned about the limited powers of
the APB. |
Findings
|
Each of the facts and matters referred to thus far under
the heading "Legislative Context" is supported by evidence in the
trial. I find that the events recorded occurred, that the observations
recorded were made and that the opinions expressed were in fact held. I find
each of these facts and matters proved on the balance of probabilities - each
was referred to in a document, evidenced by a document or supported by a
document. The documents identified were ordinary business record of the time.
Oral evidence provided further support. Whether the legal advices given by
the successive Crown Solicitors were correct legal advices is an issue to be
discussed and resolved later in these reasons. |
|
|
85 |
In particular, I am satisfied that, from as early as 1949,
concerns were held by the APB, the CWPRB and government Ministers, including
the Attorney-General, about the extent of the legal authority of the APB to
deal with neglected Aboriginal children. That concern led to the taking of
advice from several Crown Solicitors about the extent of the legal powers of
the APB. The matter was considered to be one of great importance and was
referred to Cabinet as well as the Ministers responsible for the APB and the
CWPRB. |
|
86 |
As earlier observed, the legislative scheme and in
particular section 38 of the Aborigines Act 1934-1939 envisaged that
there would be co-operation between the two boards, and in appropriate cases
of neglect for Aboriginal children to be placed into institutions controlled
by the CWPRB. |
|
87 |
I find that insurmountable difficulties arose because of
the ongoing and consistent refusal of the CWPRB to enter into any dialogue as
envisaged by section 38. This refusal continued throughout the 1950s and
spanned the time of the plaintiff’s removal and fostering. |
|
88 |
I find that the legal advice from the several Crown
Solicitors about the limits of the legal authority and power to remove
Aboriginal children from their parents was widely disseminated and was well
known. The government, through Cabinet, the Ministers responsible for the two
boards, the Attorney-General, the members of the boards themselves and the
departmental officers were all aware of the advice. The substance of those
advices received a level of community and interstate awareness. Both the APB
and the CWPRB were active in seeking legislative amendment but no relevant
amendments were forthcoming. |
|
89 |
It is against this background that the plaintiff was
removed from his parents in circumstances where those involved in his removal
were of the understanding and belief that they did not have the legal
authority and power to remove the plaintiff in the way they did. Equally,
those concerned were well aware that they did not have the power to purport
to foster the plaintiff in the way they did. Legal processes that would have
provided a material degree of protection to the plaintiff were not followed.
Those concerned acted wilfully and knowingly in these respects. |
|
90 |
It is relevant to observe that a departmental officer with
the Aborigines Department, Mrs Angas, who had been appointed as a welfare
officer in the Department for less than nine months, apparently took on
responsibilities with regard to the removal of the plaintiff. At that time,
as earlier observed, it was the practice of the APB and the Aborigines
Department to act to remove children thought to be neglected, and to do so
with the state of mind that they lacked the legal authority or power to so
act. Mrs Angas’ conduct would appear to be consistent with this
practice. |
|
91 |
Although precise findings cannot be made, it would appear
that this practice of deliberately and knowingly acting beyond legal
authority and power – as it was understood – ceased by the end of the 1950s
when the Aborigines Department openly and publicly acknowledged that it had
no power to remove neglected Aboriginal children from their parents, and the
departmental approach had been altered to an attempt to persuade rather than
to remove without approval. |
|
92 |
The following facts are drawn from both the documentary
and oral evidence presented at trial. Unless otherwise indicated, they are
facts that I find proved on the balance of probabilities. The oral evidence
and my observations and conclusions with respect to the witnesses will be
discussed later in these reasons. |
|
93 |
From at least early 1954, the plaintiff’s natural parents,
Joseph and Thora had been in a relationship. There appears to have been no
marriage according to Australian custom and law and there was no evidence as
to whether there was marriage according to Aboriginal custom and law. It is
possible that their relationship was established by 1946. |
|
94 |
The plaintiff was born on 20 November 1956 at the Queen
Victoria Maternity Hospital. The plaintiff’s birth certificate records that
his father was |
|
95 |
Thora suffered severe pre-eclamptic toxaemia during her
pregnancy with the plaintiff. However the hospital notes record that the
delivery was normal. The plaintiff was underweight at birth at five pounds
and three ounces. |
|
96 |
The plaintiff remained at the Maternity Hospital for 10
days before being transferred to the Children’s Hospital. The records of his
admission at the Children’s Hospital mention that the plaintiff, as a
newborn, had not thrived, that he was a very small baby who cried continually
and that his hydration was "not good". It is not clear from the
records how long the plaintiff remained at the Children’s Hospital, however
an entry made on 12 December 1956 records that although he had not gained
much weight, he was generally doing well. It is reasonable to infer that he
was discharged soon after. |
|
97 |
It is not known who collected the plaintiff from hospital
but it is reasonable to infer that it was his parents or through arrangements
made by them. The evidence establishes that he was living with his parents
and older siblings in Meningie following his discharge. At this time, Joseph
and Thora lived with their children, Hilda, aged 9, George, 5, Tom, 3 and the
plaintiff in a home built primarily of iron and sacks in the fringe-dwelling
camps outside of Meningie. Other relatives lived nearby. Joseph’s children
from a previous relationship would come to stay from time to time. |
|
98 |
Evidence from the plaintiff’s siblings and half-siblings,
together with entries in documents from the time, allow findings to be made
about family life in the Trevorrow home in the late 1950s and 1960s. |
|
99 |
Joseph was a proud man who did his best to provide for the
material and emotional needs of his family. The Trevorrow family were fringe
dwellers on the outskirts of Meningie, building their accommodation from
second-hand materials and living partly off the land and partly by purchased
supplies. However, the general picture of a well-nourished family, both
physically and mentally, and of a happy family emerged from the evidence. |
|
100 |
The evidence established that Joseph was generally in
regular although casual employment. The children were adequately clothed and
fed. Joseph took an active interest in his children’s education. He
encouraged their attendance at school. Thora was a loving mother who cared
for her children and the home. As was the custom, the wider Aboriginal
community, in particular the women of the wider family, helped with the care
of the children. If needed, other women of the family would "step
in" and take on the domestic and child-minding tasks. |
|
101 |
On 14 August 1957, Sergeant Liebing, the officer in charge
at Meningie Police Station, prepared a General Report, "The Financial
position of Joseph Trevorrow re Maintenance of child", presumedly in
regard to Alice Trevorrow – a half-sibling of the plaintiff – in which he
recorded the following: |
This person [Joseph] is at present living with another
aboriginal native, named [Thora], and although not married to her has been
living with her as man and wife for the past three and a half years to my
knowledge. He has been in constant employment with W. Dollard and Co. of
Meningie for the past six months. During this period his weekly wage has been
[sterling]12/7/- after all deductions have been taken out. He has been working
for Dollard & Co since I have know him but has had periods when not
employed and periods when he has left and tried his hand at fishing.
I also learned the following facts regarding his financial position. He has no
money in any bank, savings bank, nor does he own any property of any
description or houses, apart from the self built shack in which he and his
defacto wife and children live. He has no investments of any nature, such as
bonds, stocks or shares. He does own two old motor cars which at present are in
a very poor and dilapidated condition. He states that he owes about
[sterling]10 in sundry debts at present.
His family consists of the following –
By his first wife who has now left him.
Joseph Trevorrow, aged 20 years, now living away from home and employed by
Highways Department at Bordertown.
Rita Emilie Trevorrow, aged 17 years – recently placed by Aborigines Department
as a domestic at Woomera.
Alice G. Trevorrow – now committed to Vaughan House.
Children by Defacto wife – [Thora].
Hilda Rose Trevorrow – aged 9 years – living at home.
Thomas Edwin Trevorrow – aged 3 years – " " "
[The plaintiff] – aged 8 months – " " "
A copy of this report formed part of the Aborigines Department file with
notations concerning attendances on Thora.
Christmas 1957
|
Events that occurred at or about Christmas 1957 require
close examination. In the week before Christmas, a difference arose between
Thora and Joseph concerning Joseph’s son by a previous relationship. This led
Thora to leave the home for about a week to stay with friends, probably at
Tailem Bend. She left the older children with Joseph and the plaintiff with
her brother and his wife at their home nearby. However, it is apparent that
in Thora’s absence that at least at times Joseph was caring for the
plaintiff. Sergeant Liebing visited the Trevorrow home during Thora’s absence
and observed the plaintiff and another child. His observations of the
plaintiff caused him no concern for the plaintiff’s well-being. |
|
|
103 |
However, shortly prior to Christmas Day, the plaintiff
fell ill. Joseph went to the police station in an effort to obtain assistance
to have the plaintiff taken to hospital. The police could not help with
transport arrangements other than suggest that Joseph contact the garage at
Meningie. Joseph carried the plaintiff wrapped in a blanket to a neighbour
and relative - Mrs Evans - and arranged for the plaintiff to be taken to the
Children’s Hospital. |
|
104 |
The plaintiff, while in hospital, quickly recovered. By
New Years Eve he was reported to be doing well. On 6 January 1958, an officer
of the Aborigines Department arranged for and authorised Martha Davies to
take the plaintiff in to what became a permanent placement. The plaintiff’s
parents were not informed of what was occurring. They did not consent. I now
turn to a closer examination of these events. |
|
105 |
On 15 January 1958, some nine days after Martha took the
plaintiff home from hospital, the secretary of the APB wrote to Sergeant
Liebing, in terms prepared by Mrs Angas, requesting details of how the
plaintiff came to be in the Children’s Hospital and where his mother was at
the time. Sergeant Liebing when responding on 28 January 1958 observed at the
outset of his report: |
I have to acknowledge receipt of your letter dated 15/1/1958
regarding the above named child, which is the son of [Thora] and [Joseph] of
Meningie.
|
106 |
Sergeant Liebing’s report allows a number of findings to
be made on the probabilities as to what had occurred. The report was prepared
some four to five weeks after the relevant events. It was prepared having
regard to the officer’s responsibilities, and was a report in response to a
request of the secretary of the APB. I accept the report as a reliable
business record. Other evidence provides support to a number of the following
findings, in particular the evidence of Hilda Day and Rita Lindsey. |
|
107 |
Sergeant Liebing reported that his enquiries had revealed
that the plaintiff had been taken to the Children’s Hospital on 25 December
1957 by Mr and Mrs Evans of Meningie. He advised that Thora had allegedly
walked out and gone to stay with friends at Tailem Bend. He noted that Thora
"was and had been absent from her home for about a week". Thora had
left due to a difference with Joseph over the presence of Joseph Trevorrow
Junior, the eldest son of Joseph, at the home. Thora claimed to have left her
children in the charge of Steven George Lampard and his wife in her absence.
However Sergeant Liebing doubted the veracity of this claim as he had visited
the Trevorrow home during the period of Thora’s absence and noted the
plaintiff and another child at the Trevorrow home. Importantly, at the time
of this observation, Sergeant Liebing noted: |
Both, [the plaintiff] and another child, were then lying on
an unmade double bed, and [Joseph] did not make any complaint to me regarding
this child’s health.
There was no suggestion in Sergeant Liebing’s report that, to his
observation the plaintiff appeared to be unwell, malnourished or showed any
evidence of mistreatment or neglect. It is apparent that Sergeant Liebing’s
observations were made only a short time before the plaintiff’s admission to
hospital.
|
108 |
Sergeant Liebing also reported that Joseph had come to the
police station on Christmas Day, 1957 seeking assistance for the plaintiff: |
During the afternoon of 25/12/1957 [Joseph] had come to the
Meningie Police Station and demanded that I immediately contact the Point
McLeay Mission Station and bring the station ambulance to Meningie and convey
the child, [the plaintiff], to the Tailem Bend Hospital as he was then
suffering from pains in the stomach. I was not able to contact the Point McLeay
Mission Station due to the Narrung exchange being closed. After a further
argument with [Joseph] in which he inferred that I had not tried to get the
ambulance for his child I told him to contact either of the two garages in
Meningie and they would certainly assist him in getting the child to Hospital,
which he demanded and insisted was a case of great urgency. However it appears
that he did not take any notice of my [Joseph] did not accompany the child and
it now appears that Evans’s took the child direct to the Children’s Hospital in
Adelaide.
Sergeant Liebing provided the following information to explain why Joseph
had come to the police station demanding assistance:
Prior to the visit of [Joseph] at the Meningie Police
Station on 25/12/1957 I had arrested Joseph Trevorrow Jnr on two charges for
which he was later sentenced to eight weeks imprisonment in the Adelaide Gaol,
and I feel that this is what prompted [Joseph] to come to the Police Station
and demand the immediate attention to his child, whom I believe had had some
type of alleged stomach pains some days prior to his visit to the Police
Station.
Sergeant Liebing apparently considered that the request for an ambulance on
Christmas Day for the plaintiff, who it was claimed was suffering from pains in
the stomach, was an attempt to cause trouble because of the Sergeant’s previous
arrest of Joseph Trevorrow Junior.
|
109 |
Importantly, there was no suggestion whatsoever in the
Sergeant’s report of neglect, malnourishment or mistreatment of the
plaintiff. There was no suggestion that the plaintiff was not being properly
cared for. There is no reason to doubt that Sergeant Liebing was reporting from
his observations and knowledge at the time. The Trevorrow family were known
to him. |
|
110 |
The Children’s Hospital notes record that the plaintiff
was admitted on Christmas Day, 1957. The records note that the plaintiff was
a "neglected child – without parents". The records also contained
an entry of "malnutrition" and a diagnosis of "infective
diarrhoea". The following note appears on the history sheet: |
Brought up by Mr and Mrs R Evans, Meningie.
Child unwell ... Apparently been in the Tailem Bend Hosp. For abdominal trouble
previously. He is one of 3 1/4 cast children. The other two children are
neglected. Mother has cleared out and father is boozing. Apparently father is
nourishing the children with alcohol (could almoner please investigate).
Another examination sheet recorded that the plaintiff was "obviously
neglected".
|
111 |
It is to be observed that the hospital records in material
respects were in conflict with the report of Sergeant Liebing. Only days
before the plaintiff’s admission to the hospital Sergeant Liebing had visited
the Trevorrow home and observed the plaintiff. As earlier noted, the tenor of
the Sergeant’s report was that the plaintiff was well. The records were also
in conflict with the evidence of the plaintiff’s siblings and half-siblings. |
|
112 |
Furthermore, it appears that while in hospital the
plaintiff recovered rapidly. On 31 December 1957, a note was made that
he was "Going well. On full milk today". He was discharged on 6
January 1958. |
|
113 |
It is convenient at this point to note that Dr Alan
Walker, called by the plaintiff, and Dr Andrew Tidemann called by the State,
gave evidence about the hospital records and their significance. Their
evidence is discussed in some depth later in these reasons. However, for
present purposes it is relevant to record that Dr Tidemann, a paediatrician,
considered that the diagnosis of malnutrition was a "dangerous
diagnosis" to be made. He was of the view that it was clear from tests performed
that the plaintiff on admission was suffering from acute bacterial
gastroenteritis. This condition would in the ordinary course have led to
dehydration and rapid weight loss. I accept this evidence. |
|
114 |
Dr Walker, also a paediatrician, who had more than 50
years experience in treating indigenous children, gave evidence that
infective diarrhoea was a common problem with Aboriginal children. He was of
the view that the symptoms noted in the hospital records were consistent with
but not diagnostic of neglect. It was Dr Walker’s opinion that the
plaintiff’s symptoms, including weight loss and loose abdominal skin, were
consistent with a diagnosis of a diarrhoeal illness. This was further
supported by the plaintiff’s quick recovery. I accept this evidence. |
|
115 |
The evidence allows the conclusion to be reached that the
plaintiff’s parents were loving and caring parents despite their differences
and relationship difficulties. I find that Thora did not walk out, in any
permanent sense; rather she left for a short period, probably a week. It is
probable that she made arrangements for Joseph, with the assistance of the
wider family, to care for the children including the plaintiff. The evidence
discloses that Joseph was a responsible parent who was insistent that the
plaintiff be taken to hospital. The child had been observed by Sergeant
Liebing to be well shortly before Joseph attended at the police station on
Christmas Day. All of this evidence suggests the existence of a condition
causing a rapid deterioration in the health of the plaintiff. This evidence
supports Dr Walker’s and Dr Tidemann’s views of the interpretation of
relevant medical entries in the hospital notes. |
|
116 |
I find that the plaintiff was not "malnourished"
and was not "neglected". The plaintiff was not "without
parents". I find that the plaintiff’s siblings were not neglected, that
Thora had not "cleared out", and that Joseph was not
"boozing". I find that Joseph did not nourish his children with
alcohol. The basis for these findings has been referred to earlier and is the
subject of later discussion. |
|
117 |
On 6 January 1958, Martha Davies went with her husband, |
|
118 |
Carol Malinda (nee Davies), Martha’s elder daughter,
recalled the day that her parents brought the plaintiff home from hospital: |
I remember Mum and Dad went to the Children’s Hospital to
see this child that they wanted to adopt and then he just seemed to be there.
They went and picked him up and brought him home.
|
119 |
According to Carol, all that |
|
120 |
Martha had not previously been a foster mother in South
Australia and, at 6 January 1958, it appears that she was not licensed.
Martha’s application to become a foster mother was enclosed under cover of a
letter from the secretary of the APB to the secretary of the CWD, dated 5
February 1958, a month after the plaintiff had been placed in her care. The
letter was in the following terms: |
I am enclosing an application form for [Martha] to act as
foster-mother, who has in her care [the plaintiff], illegitimate son of [Thora]
and [Joseph], Meningie. The child was taken on the 6th Jan. 1958.
|
121 |
On 20 February 1958, the secretary of the APB wrote to
Martha advising that the APB had approved maintenance for the plaintiff at
the rate of 30/- per week as from 6 January 1958. |
|
122 |
On 17 March 1958, about eleven weeks after the plaintiff
had been taken to the Children’s Hospital, Mr Weightman, a welfare officer
with the Aborigines Department, visited the home of Joseph and Thora. The
visit was in the course of Mr Weightman’s normal duties. It would appear from
Mr Weightman’s report that at this time Joseph and Thora were still
together. |
|
123 |
Mr Weightman found the home to be reasonably clean and
tidy. There was one child at home who was observed to be warmly clad and only
dirty from playing. There was no suggestion that the child was other than
properly cared for. Mr Weightman described the basic condition of the
home. He noted that Joseph was employed. |
|
124 |
Mr Weightman gained the general impression that the living
conditions were far from ideal but that he "could not recommend that any
child be committed due to the unsatisfactory nature of the home". |
Thora seeks the return of the
plaintiff
|
125 |
On 25 July 1958, Thora wrote to Mrs Angas seeking
information regarding the plaintiff: |
Dear Mrs Angas
I am writing to ask if you will let me know how baby Bruce is and how long
before I can have him home as I have not forgot I got a baby in there and I
would like something defenat [sic] about him this time trust you will let me
know as soon as possible
Yours faithfully [Thora]
Meningie.
The reference to "this time" allows the inference to be drawn that
there had been at least one earlier request from Thora.
|
126 |
On 19 August 1958, the secretary of the APB, in a letter
apparently prepared by Mrs Angas, responded to Thora’s inquiry advising, inter
alia: |
[The plaintiff] is making good progress but as yet the
doctor [unidentified] does not consider him fit to go home.
|
127 |
The reference to the suggested views of "the
doctor" finds no direct or indirect support from any evidence led at
trial. Having reviewed the evidence, I am satisfied that there was no medical
advice as suggested. |
|
128 |
The evidence established that Martha was able to take the
plaintiff to the Children’s Hospital for outpatient treatment when necessary
with the costs being met by the State. She was also able to take the
plaintiff to a general medical practitioners and in that event to seek
reimbursement from the State. The evidence disclosed an account with respect
to the plaintiff arising from an attendance at a general practitioner. Martha
submitted that account for reimbursement. Reimbursement was made. Otherwise
the records suggest that Martha, when necessary, took the plaintiff to the
Children’s Hospital. |
|
129 |
The plaintiff returned to hospital in April 1958 to be
circumcised. This procedure was successful – there were no reported
complications. The surgical procedure was undertaken without any
communication with or permission from the plaintiff’s parents. |
|
130 |
In a letter to the secretary of the APB dated 18 May 1959,
Constable Goldie related a conversation that he had with Thora regarding the
plaintiff: |
[Thora] has asked me to mention another matter to you. She
says that she has a child, [the plaintiff], aged two years, in the care of the
[APB]. [Thora] states that the child has been in the care of the Board for the
past eighteen months and although she has tried on numerous occasions to see
the child she has not been allowed to do so. I wonder if you could possibly
look into this matter please and inform [Thora] whether she would be allowed to
see the child or not.
|
131 |
On 27 May 1959, the secretary of the APB, in a letter
apparently prepared by Mrs Angas, responded to Constable Goldie in the
following terms: |
With reference to [the plaintiff], aged 2 years, I wish to
advise that [Thora], has for many years lived improperly with [Joseph]. She has
proved to be a most unsuitable mother for any of her children, and in the case
of the above mentioned child who was removed from her care due to the fact that
he had been left by his mother in a critical condition.
It is most unlikely that I would be able to agree to this child being returned
to the mother as her home is not in any way satisfactory for the benefit of the
child’s health.
As far as I am aware [Thora] has never requested that she actually see [the
plaintiff], but has demanded that the child be returned to her care.
It would be possible for [Thora] to see [the plaintiff] in the presence of a
Welfare Officer if suitable arrangements were made in advance. It would also be
necessary for her to fully understand that the child will not be returned to
her.
|
132 |
An issue at trial was the extent to which Thora had sought
the return of the plaintiff. The documentation tendered at trial clearly
establishes that Thora did seek contact with and the return of the plaintiff
and that she did so repeatedly over a period of years. However, it appears
that her requests were consistently ignored or rejected. The secretary of the
APB’s response, "[Thora] has never requested that she actually see [the
plaintiff]", was disingenuous. Thora’s pleas for her child were clear
and consistent. The assertion that Thora had left the plaintiff in a critical
condition was plainly incorrect. Sergeant Liebing’s report of 28 January 1958
provided a contemporaneous account to the contrary. |
|
133 |
There appears to have been a level of determination on the
part of the APB that the plaintiff and Thora were not to have contact –
"the child will not be returned to her". |
|
134 |
A number of letters bear the initials of Mrs Angas but
were approved by and adopted as letters of the secretary of the APB. These
letters were written at a time when the APB, the secretary and the
departmental officers were well aware that the plaintiff had been removed and
placed in foster care and in the belief and understanding that this had
occurred without legal authority. The statutory processes had been
deliberately ignored, they had been flouted in the face of authoritative
legal advice. |
|
135 |
Some years later, in a report to a summary court in 1977,
Mrs Angas recorded that Thora: |
consistently approached the Protector requesting the return
of her son, however, these requests were not heeded until the change in the
legislation i.e. Aborigines Affairs Act 1962-1972 which transferred the legal
guardianship and responsibilities of Aboriginal children to the parents.
This report was a formal report by Mrs Angas to a court. There can be no
doubt that Mrs Angas expected the report to be received and acted upon by the
court. This report confirms the accuracy of Constable Goldie’s letter of 18 May
1959, and the fact of Thora’s repeated requests for the return of her child. It
is also confirmatory of the secretary’s response of 27 May 1959. That response
clearly infers that no heed was paid to Thora’s requests for the return of her
child. The report of Mrs Angas, however, failed to disclose that several
years had passed following the enactment of the Aboriginal Affairs Act 1962
(SA) before Thora’s requests were heeded.
|
136 |
It is convenient at this point to record my findings with
regard to Mrs Angas. At the time of the trial Mrs Angas had died, and
accordingly any findings critical of her should be made with considerable
care.[17] She has not had the opportunity to answer criticisms made
of her. |
|
137 |
Mrs Angas commenced work as a welfare officer with the
Aborigines Department in April 1957. Departmental records disclosed that she
prepared a letter under the cover of the secretary of the APB on 19 June 1957
concerning Alice and Rita Trevorrow. At that time Mrs Angas had been working
at the department for about four weeks. In the letter it is recorded: |
We understand, the father [Joseph] of Meningie is illiterate
and an habitual drunkard. He has a defacto wife, [Thora]. There are several
illegitimate children of this union[Joseph] has no permanent employment.
Conditions in this camp are reported as most undesirable for children.
Periodically [Thora] is forced to leave home and seek assistance for herself
and the children.
|
138 |
It is unclear on what information this purported
understanding was based. There is no evidence or other suggestion of Thora
having been forced to leave home or seek assistance for herself or her
children. As is evident from my findings elsewhere in these reasons, the
understanding referred to above was materially inaccurate. For example,
Joseph was in regular employment and was not an habitual drunkard. . |
|
139 |
While the plaintiff was in the Children’s Hospital in
early 1958, it is evident that Mrs Angas took the view that the plaintiff
should be permanently removed from his natural family. Despite Thora’s
repeated requests, Mrs Angas stood resolutely in the way of the plaintiff’s
return to Thora or even of Thora having contact with her child. Documents
contain a reference to the possibility of Thora having supervised contact
with the plaintiff. However, it appears that nothing was done to encourage or
facilitate any such contact. |
|
140 |
The reports of Sergeant Liebing and welfare officer Mr
Weightman of late 1957 and early 1958 can be reasonably expected to have been
available to Mrs Angas, certainly by the time she wrote to Thora on 19
August 1958. |
|
141 |
As earlier observed, on 27 May 1959, Mrs Angas prepared a
letter for the secretary of the APB to the officer in charge of Meningie, in
which it was asserted on this occasion that Thora was a most unsuitable
mother to all of her children and had left the plaintiff in a critical
condition. Again, this information was materially incorrect. There was no
evidence of the other children of Thora and Joseph being in any way
mistreated, malnourished or neglected. To the contrary, it appears that they
were well cared for, lived within a family, attended school, overcame
adversities facing indigenous children at the time, and flourished in adult
life. The plaintiff’s siblings gave evidence generally to this effect at the
trial. |
|
142 |
It would appear that Mrs Angas was prejudiced against
Joseph and Thora. I infer that this was the result of Mrs Angas’ relative
inexperience when first dealing with the family and misinformation provided
to her. |
|
143 |
The report of Mrs Angas prepared for a summary court in
1977 demonstrated that she had changed her views with respect to the
plaintiff. Mrs Angas then recognised and acknowledged the problems
flowing from the plaintiff’s separation from his mother. The full text of
this report is set out later in these reasons. |
|
144 |
Mrs Angas may have been well intentioned but unwittingly
prejudiced in her dealings with Thora and Joseph and their family. However,
Mrs Angas was well aware, or ought to have been aware, that the removal of
the plaintiff from his family and his placement with the Davies family was
undertaken in circumstances that were understood to be without legal
authority, beyond power and contrary to authoritative legal advice. She was
aware, or ought to have been aware, of the importance of maintaining ongoing
contact between mother and child, and of both the natural parents’ and
child’s right to have contact. Evidence from welfare officers confirmed that
the usual practice was for contact to be maintained between natural family
and child after removal. I am satisfied that there was no medical reason why
the plaintiff should not have been returned to his mother, and that this
suggested excuse proffered by Mrs Angas was simply a ruse to avoid the
plaintiff being returned to Thora. |
|
145 |
When the plaintiff first went to live with the Davies,
Martha lived with her husband, |
|
146 |
There is no evidence that any agency of the State enquired
after or monitored the plaintiff’s well-being during the first six years of
his placement with Martha. The earliest record of an officer of the
Department of Aboriginal Affairs visiting the Davies home for the purpose of
checking on the plaintiff was in February 1964. |
|
147 |
From the evidence that exists of this period, it appears
that for some time the plaintiff lived relatively happily with the Davies. He
was treated as a member of the family. Family photographs that were tendered
support this finding. They depict the plaintiff participating in various
family activities including attending Sunday School. |
|
148 |
Carol recalled the plaintiff as a happy child. She gave
evidence that her parents did not treat the plaintiff any differently from
their biological children and that he was loved by them as though he were one
of their own. |
|
149 |
Other evidence however demonstrates that there were major
problems emerging and developing. There were early signs of the plaintiff
experiencing developmental problems and depression. Notes of an attendance at
the Children’s Hospital on 23 December 1959, shortly after the plaintiff’s
third birthday, record that he was diagnosed with trichotilliomania, a
condition described in a 1950 paediatrics text as, "fretful infants who
frequently pull the hair and large areas of the scalp may be almost denuded
in some cases". In Dr Le Page’s opinion this was evidence of an
early depressive condition. As indicated later, I accept this opinion. |
|
150 |
As a young child, the plaintiff had an apparent speech
defect. In late 1963, Martha arranged speech therapy at the Children’s
Hospital. The plaintiff undertook therapy in early 1964. By January 1965, his
speech defect was almost controlled. |
|
151 |
The first formally recorded visit by a welfare officer
employed by the Department of Aboriginal Affairs to the Davies home occurred
on 5 February 1964. It should be noted that this was over a year after
legislative change had been implemented, whereby legal guardianship of the
plaintiff had transferred from the APB – (now disbanded) - to his mother,
Thora. Thereafter, welfare officers of the Department visited regularly to
assess the plaintiff and the Davies home. The practice, if any, followed by
State agencies prior to 1964 with respect to monitoring foster homes and
foster children is unclear. |
|
152 |
A psychologist associated with the Education Department
and the plaintiff’s teachers during the mid 1960s considered the plaintiff to
be of mid-average intelligence overall but lower in the verbal range, largely
due to his speech difficulties. The plaintiff also had co-ordination
problems, which apparently prevented him from using a standard sized pencil
when writing. However, reports from lay witnesses suggested that the
plaintiff was proficient at sport, particularly football. He was agile and
ran and moved fluently, more so than other children. There were no apparent
difficulties with coordination in that environment. This evidence would
suggest that the plaintiff’s problems with coordination were minor and may
possibly have had, or were contributed to by, factors with other than a
physical cause. |
|
153 |
Generally, the welfare officers who visited the Davies
home from 1964 onwards, reported the plaintiff to be a happy child living in
a comfortable family environment. On one occasion, Dorothy Forbes, a welfare
officer who visited the Davies home on 2 March 1964, observed that the Davies
family were "obviously fond of [the plaintiff] and he is treated as one
of the family unit". At school and Sunday School, the plaintiff was
well-liked and made friends among the other children. |
|
154 |
As the plaintiff grew, his skin and hair colour darkened.
Family photographs show that over time as his appearance changed it became
easier to distinguish the plaintiff from the other Davies children. As a
young child, the plaintiff believed that he was a natural member of the
Davies family. His slightly darker skin colour was explained to him by Martha
as being due to European relatives having a darker complexion. |
|
155 |
Carol recalled the time that she told the plaintiff that
he was an Aboriginal in order to prepare him for school. Carol agreed that at
this time the plaintiff would have had little understanding of what the word
"Aborigine" meant and that it probably did not indicate to him that
he was not a natural member of the Davies family. It seems that his
Aboriginality was something that did not "sink in" until some time
later. |
|
156 |
In around 1964, when aged about eight years, the
plaintiff’s behaviour deteriorated markedly. Welfare officers described him
as destructive and irresponsible. He stole money from Martha. He was careless
with possessions. He regularly soiled his underwear, almost daily and usually
on the way home from school. |
|
157 |
Some time during November 1964, Martha, in the presence of
Barbara Reiff, a welfare officer employed by the Department of
Aboriginal Affairs, threatened the plaintiff that if his behaviour did not
improve, he would be placed elsewhere. This threat was repeated in May 1965
and September 1965. |
|
158 |
On 14 April 1965, Ms Reiff visited the Davies home and
made the following note: |
A very good home. Unfortunately [Martha] has been very ill
in hospital and was considering giving [the plaintiff] up. However providing
her health is ok she now doesn’t want to part with him. He has stopped stealing
and is becoming quieter and helpful. Unfortunately he is still very rough at
play and with his clothes especially shoes.
A further note made on 20 May 1965, reported that Martha’s health was by
that stage much better.
|
159 |
At around this time, when the plaintiff was about eight or
nine years old, it is likely that he became aware that he was not a natural
member of the Davies family. He was told that he had natural parents of his
own. |
|
160 |
Carol gave evidence about the period around 1965, and her
impressions of the plaintiff at that time. She said that he still appeared to
be quite happy, that he continued to participate in family activities and
still appeared to enjoy family life. However, these observations were
superficial. All was not well. |
|
161 |
In September 1965, Ms Reiff arranged for the plaintiff to
be referred to the Child Guidance Clinic. The Clinic was established in 1960
to provide a free Government service throughout South Australia to children,
between infancy and adolescence, who were deemed to be suffering from
emotional and behavioural disorders. It was also offered to the children’s
families. It seems that the referral was prompted by Ms Reiff’s observations
during a visit to the Davies home on 8 September 1965, when she made the
following note: |
[The plaintiff’s] destructive ways are getting worse ... He
also dirties his pants. He was bottom of his class this time and didn’t hand
his report in to [Martha]. ... [Martha] is not in the best of health, says she
will give [the plaintiff] to Xmas to improve or else will have to leave.
|
162 |
The plaintiff first attended the Child Guidance Clinic on
30 September 1965. Intelligence and psychological testing was performed. He
saw the clinic’s psychologist. The plaintiff was first seen by Dr Moffatt in
January 1966. |
|
163 |
Dr Moffatt had been contacted by Dr Le Page, with whom she
had studied medicine at university in the 1950s. Having practised medicine
for about three years prior, Dr Moffatt commenced her training in psychiatry,
and in particular child psychiatry, in late 1959. Dr Le Page asked Dr Moffatt
to work with him at the Wakefield Street Child Guidance Clinic. In 1966, Dr
Moffatt commenced working at the Clinic. Dr Moffatt worked under Dr Le Page,
who was a psychiatrist at the Clinic. |
|
164 |
In a report written some time later, Dr Moffatt made
the following note of her first consultations with the plaintiff: |
I first met [Martha] and [the plaintiff] in January 1966.
[Martha] used the session to ventilate considerable hostility towards her
married daughter. I had the impression that she was borderline psychotic. [The
plaintiff] related in a very dependant [sic] way, and said that he was unhappy
at the thought of having to leave [Martha].
They attended again in February, when [Martha] reported that [the plaintiff]
was more settled. ... Once again [Martha] was mainly concerned about the
married daughter who had left her husband and moved in with her two small
children. She was also hostile towards the Clinic because of changes of
appointments, staff etc, and failed to keep the next appointment in April.
Dr Moffatt recorded the opinion that Martha had taken the child "to
prove that an aboriginal child was just as good as a white one".
|
165 |
Dr Moffatt of the Child Guidance Clinic observed from the
departmental records that each time Martha threatened to send the plaintiff
away, there followed a temporary improvement in the plaintiff’s behaviour.
The significance of these threats will be discussed later. Dr Moffatt also
observed that during this period, Martha was receiving treatment for a
nervous disorder associated with menopause. |
|
166 |
The treatment that the plaintiff received at the Child
Guidance Clinic appeared to have a positive effect on his behaviour. A
welfare officer noted that there was a vast improvement in the plaintiff’s
behaviour following several visits to the Child Guidance Clinic. It was
reported that the plaintiff no longer soiled his pants and that although he
was still rough at play he was taking care not to tear his clothing. A
further report of 21 February 1966, noted that the plaintiff was less
destructive and more appreciative of the Davies family. |
|
167 |
It appears that the plaintiff’s behaviour continued to
improve. Miss Lee, a welfare officer employed by the Department of Aboriginal
Affairs, made the following observations on 25 July 1966: |
A loving home where [the plaintiff] is treated as one of the
family. [Martha] said that she considers [the plaintiff] as her own child. She
now feels that his faults are no worse than her own children’s faults. [The
plaintiff’s] behaviour has improved over the past few months.
However, the improvement was transient.
|
168 |
On 4 August 1966, Martha phoned the Department of
Aboriginal Affairs to advise them that on the previous evening the plaintiff
– then aged nine years – had left the foster home at approximately 5:30pm and
had not returned until 1:20 the following morning. When initially questioned,
the plaintiff had no explanation for being away from home. When visited by a
welfare officer on 8 August 1966 and spoken to alone, the plaintiff explained
that he had not wanted to return home because he was afraid that |
|
169 |
At this time, the plaintiff had not been to the Child
Guidance Clinic for some months, having missed his January appointment. Dr
Moffatt did not see the plaintiff again until March 1967. |
|
170 |
On 28 February 1963 the Aboriginal Affairs Act was
proclaimed and came into effect. The Aborigines Act 1934-1939 was
repealed. The APB ceased to exist and legal guardianship was given to natural
Aboriginal parents. |
|
171 |
It is important to note that at the date of the coming
into effect of the Aboriginal Affairs Act, legal guardianship of the
plaintiff was given to Thora. However, it does not appear that any steps were
taken to notify Thora of this change or of her, or of the plaintiff’s,
rights. It does not appear that any consideration was given to the
plaintiff’s rights. It appears that the issue was first raised with Thora in
or about 1966 when she again raised with the Department of Aboriginal Affairs
the return of her son. As previously noted, Joseph died on 14 January 1966,
before the plaintiff was returned to Thora. |
|
172 |
Counsel for the State submitted that reference to the new
legislation in newspapers provided adequate public dissemination of the
effect of the changes to guardianship effected by the Aboriginal Affairs
Act. It must be extremely doubtful whether in the early 1960s newspapers
were available in any "real way" to Thora. I reject the submission
that a reference in a newspaper to the Aboriginal Affairs Act and of
its effect on legal guardianship was adequate to inform Aboriginal parents
and in particular Thora of the legislative change. |
|
173 |
On 13 September 1966, Mr Bennett, who had the
responsibility for the region that encompassed Victor Harbor, where at that
time Thora lived, received a telephone call from Thora. She wanted to see the
plaintiff, whom she had not seen since he was an infant. Mr Bennett made the
following note of their conversation: |
I asked why she had not requested to see him before, and she
stated that previously she had not had decent housing, and did not wish to see
the boy with a view to regaining his custody while living in substandard
accommodation.
[Thora] understands that she will have to get to know [the plaintiff] over a
period of time and gradually work towards him returning to her care without
emotionally disturbing the boy.
During evidence, Mr Bennett recalled that he explained to Thora the matters
referred to in the second paragraph. Mr Bennett then requested other welfare
officers directly involved with foster children to work toward arranging a
meeting between the plaintiff and his mother.
|
174 |
A file note on the Department of Aboriginal Affairs file
recorded the plaintiff’s first meeting with his natural mother and siblings.
This occurred on 20 November 1966, the plaintiff’s tenth birthday, at the
Department’s offices in Adelaide: |
[The plaintiff] was rather shy when he met his mother and
brothers and sisters, but he was obviously thrilled to see them. They gave him
a bottle of coke, bananas, and lollies. [The plaintiff] has been taught to be
grateful for what is given to him. He also shares his things with others.
[Thora] said the above things were for his birthday though I suspect that she
had, in fact, forgotten that it was his birthday until they met.
They asked [the plaintiff] what he wanted for Christmas. The family then
decided to give him a watch, but as the foster parents have already purchased
one for his birthday, this will not be necessary.
[Thora] made the request that [the plaintiff] visit them during the school
holidays. This was later mentioned to the foster mother by Miss Lee. [Martha]
is naturally enough a little upset at the prospect of losing [the plaintiff],
but there are many problems involved in [the plaintiff’s] behaviour in the home.
[Thora], on the other hand, is sure that [the plaintiff] will be all right with
her. She realizes that [the plaintiff] was shy and that her family are rowdy
and lively. She thought [the plaintiff] was a sensible little boy. On the
whole, [Thora] was willing to co-operate. She doesn’t mind meeting the foster
mother, whom she realises must be fond of [the plaintiff].
A meeting, with careful preparation may help in this case, but there is no
doubt that [Thora] wants [the plaintiff] back. I would like to see things move
slowly for [the plaintiff’s] sake. He is old enough to be able to express some
feeling in the matter. A visit to his mother in January may help him.
|
175 |
Martha reported to a welfare officer who visited on 22
December 1966, that the plaintiff’s behaviour was not good immediately after
his reunion with his natural family. She told the welfare officer that the
plaintiff repeatedly "quoted" his natural mother and that he had
"fantastic ideas of his mother and her home generally". On this
occasion, Martha also said that the plaintiff had been "very secretive
and uncommunicative with her" and that he had been behaving this way
over a long period of time. |
|
176 |
In December 1966, the plaintiff developed a limp. Martha
took him to the Children’s Hospital. The Hospital records and other relevant
records do not suggest there was any physical cause for the limp. |
|
177 |
A welfare officer visited Martha on 6 January 1967 in
preparation for the plaintiff’s weekend visit to his natural family. The
following note was made of the visit: |
W.O. visited [Martha] to arrange for a visit to his mother.
She seemed to accept the idea of the visit quite well. [The plaintiff] has
built up quite fantastic ideas as to what his mother’s home is like. For a week
or two after the visit he referred to her as his foster mother instead of the
usual "mummy". This rather hurt [Martha]. Her feelings in this matter
are quite mixed. On one hand she wants [the plaintiff] to see his mother and at
times appears as though she would not mind if he went home to his mother but on
the other hand she has looked after him for so many years that any parting
would be hard for her.
...
[Martha] has to take [the plaintiff] to ACH. She suggested that his trouble may
be emotional. W.O. did not make very much comment but stated that perhaps it
would be a good idea to discuss the matter with the almoner of ACH. This might
help the Doctors in their treatment of [the plaintiff].
|
178 |
Arrangements were made for the plaintiff to travel to
Victor Harbor to spend a weekend with Thora. Those arrangements were conveyed
to Thora in a letter from the Director of Aboriginal Affairs, dated 9 January
1967. The visit was to take place on 27-31 January 1967. |
|
179 |
A file note made on 25 January 1967 reported that a
welfare officer had visited the plaintiff and had found him to be excited at
the prospect of his upcoming weekend visit with his natural family in Victor
Harbor. |
|
180 |
The welfare officer who escorted the plaintiff back to his
foster home after his weekend visit to Victor Harbor made the following note: |
[The plaintiff] said he would like to stay with his mother
at Victor Harbor, although he mentioned that he missed his bike and other toys
which he left with [Martha].
[Martha] said that Adelaide Children’s Hospital can find no physical reason for
[the plaintiff’s] cramps and leg pains. These symptoms could be associated with
[the plaintiff’s] mixed-up feelings regarding meeting his own mother, and his
attachment to his foster family. [The plaintiff] is now talking about his
"real" mother and he is calling [Martha] his "foster
mother".
|
181 |
On 13 February 1967, Mr Bennett noted that Thora was very
pleased with how the plaintiff’s visit had gone and how the family accepted
him. She remarked about the plaintiff’s enthusiasm to live with her
permanently, but also mentioned that she still had some reservations and
expressed a desire to have him holiday with her on another occasion before
she committed herself to having him return. Thora told Mr Bennett that she
would like to have the plaintiff again for the Easter vacation. |
|
182 |
The plaintiff’s behaviour continued to deteriorate, as did
Martha’s ability to cope with him. A student social worker who visited the
plaintiff and Martha on 2 March 1967 made the following note: |
[Martha] and [the plaintiff] were spoken to, both separately
and together.
It became obvious during the period of discussion with [Martha], that [the
plaintiff’s] behaviour was too much for her to cope with. She complained of his
apparent lack of care of money, clothes and for her advice and warnings. She
spoke of the difficulty in getting through to [the plaintiff], when correcting
him or asking him to do anything. She also said that [the plaintiff] was
disturbing family life.
[Martha] felt that the arrival of [Thora] ([the plaintiff’s] mother) into [the
plaintiff’s] life was the reason for much of the trouble. She said that he
often used the fact that [Martha] was only his foster mother in reply to her
corrections. However [Martha] revealed that she often threatened to send [the
plaintiff] away as a punishment for his behaviour.
[The plaintiff] appeared to be a quiet, but likeable child. He confessed that
he had not been behaving well, but that he loved his family. These statements
came after prompting from the social worker. He has now decided to stay with
his foster mother rather than live with his real mother, [Thora]. However his
reasons for this were that he would lose his school friends and his bike if he
went to live with his real mother.
In conclusion, it appeared as though [the plaintiff] was little more than a
burden to [Martha]. The whole interview consisted of complaints made against
[the plaintiff] who appeared to be a well-behaved child. [Martha’s] demands on
the boy seemed hard. Her disappointment in the boy’s unwillingness to read the
books provided and his progress at reading and writing were evident. However
she did show some pride in the fact that [the plaintiff] had many friends.
|
183 |
Martha visited the Department of Aboriginal Affairs
offices with the plaintiff on 22 March 1967. She again complained of many
incidents of naughty behaviour and repeated her concern that she was finding
it difficult to control the plaintiff. |
|
184 |
The welfare officer accompanied the plaintiff to the
Children’s Hospital to have sores checked. The welfare officer described the
plaintiff as nervous, jumpy and disturbed while at the hospital. |
|
185 |
At about the same time, Thora had contacted the Department
and requested to see the plaintiff, again with a view to having him
permanently returned to her custody. A welfare officer met with Thora and
discussed with her the plaintiff’s unhappiness in his foster home. Thora
agreed to visit the Child Guidance Clinic if required. |
|
186 |
The plaintiff attended at the Child Guidance Clinic on 28
March 1967 and saw Dr Moffatt. Dr Moffatt found the plaintiff to be unsettled
and edgy. The plaintiff discussed with Dr Moffatt what he considered to be
the "pros and cons" of both the Davies and his natural family in
terms of where he would like to live in the future. The plaintiff told Dr
Moffatt that he had three families – the Davies, the Karpanys and his
"family in Christ". Dr Moffatt felt that he was becoming deeply
involved in religion in an attempt to find a solution to his problem. Dr
Moffatt prescribed tranquillizers for the plaintiff, indicating that she
thought his condition to be quite serious. The following day, Dr Moffatt
telephoned the Department of Aboriginal Affairs and spoke with a welfare
officer regarding her interview with the plaintiff. |
|
187 |
Notes made by welfare officers in early April 1967 reveal
that the plaintiff, then aged 10 years, was having difficulty deciding
whether he wanted to remain with the Davies or return to live with his
natural family. |
|
188 |
Dr Moffatt’s notes recording her interviews with the
plaintiff at around this time indicate that she was concerned that the
plaintiff’s return to his natural family might not be in his best interests.
She questioned Thora’s motivation for wanting the plaintiff returned to her.
However, Dr Moffatt also recognised that the situation at the Davies home was
no longer viable. Dr Moffatt discussed with departmental officers the
possibility of the plaintiff going to live at a boys’ home. This, she
considered, would enable the plaintiff to attend a city school, continue to
attend the Child Guidance Clinic, and would provide him with weekend and
holiday access to both his natural family and his foster family.
Dr Moffatt recommended that a departmental officer visit Thora to
discuss her feelings toward the plaintiff. |
|
189 |
At this time, in or about May 1967, the plaintiff was in a
disturbed and anxious state. He lacked the maturity to understand the
implication of the events taking place. Thora was confused. She had a
mother’s natural desire to be with her child, but she obviously had
reservations about what was in the plaintiff’s best interests. Martha too was
confused. At times she wanted nothing to do with the plaintiff and other
times she wanted him to stay as a member of the Davies family. All parties,
the plaintiff, Thora and Martha were ill prepared to cope with the events
that followed. |
Plaintiff returns to live with natural family
|
On 12 May 1967, a welfare officer escorted the plaintiff
to Victor Harbor where he was to spend the school holidays with his natural
family. However by 23 May 1967, it seems the Department of Aboriginal Affairs
had decided that the plaintiff would permanently return to live with his
natural family. Miss Lee collected the plaintiff’s belongings from the Davies
household and arranged for them to be sent to Thora’s household in Victor
Harbor. |
|
|
191 |
On 8 June 1967, a welfare officer escorted Dr Moffatt to
Victor Harbor to see the plaintiff and Thora. The welfare officer observed
the house to be reasonably clean and tidy and noted that Thora was "well
disposed" to discuss the plaintiff. Thora reportedly told the welfare
officer that the plaintiff had settled in very well both at home and at school
but that he sometimes "stood back" from the rest of the family. The
welfare officer also made note of the following concerns raised by the
plaintiff: |
Doctor told [welfare officer] and [Thora] that [the
plaintiff] is disturbed by the fact that his brother, [George], is unemployed
and spends most of his time about the house...
During the weeks that [the plaintiff] has been with the Karpany family they
have taken him to visit a number of relatives. [The plaintiff] appears to have
been overwhelmed by some of these meetings. [Thora] said that he would not get
out of the car at Gerard Reserve, because he was frightened.
[The plaintiff] told the Doctor that he was sorry that he had not said
‘goodbye’ to the Davies. She suggested that [the plaintiff] could be taken to
visit them when in Adelaide. Doctor wants [the plaintiff] and [Thora] to come
to the Child Guidance Clinic in late July for a further interview.
In addition to these concerns, Dr Moffatt’s notes record that the plaintiff
enjoyed school and liked his teacher, but felt lonely and upset that Martha had
not said goodbye to him.
|
192 |
On 29 April 1968, a welfare officer spoke with the police
sergeant at Victor Harbor who informed her that the plaintiff had attempted
to return to the Davies. |
|
193 |
On 25 June 1968, the plaintiff was apprehended by the
police at Victor Harbor and charged with three counts of larceny. The police
inspector reporting the incident to the Department of Aboriginal Affairs
informed a welfare officer that when police had returned the plaintiff home,
his mother became very angry and physically punished him to the extent that
the police officer took him back to the police station, where the plaintiff
spent the night, as the officer was concerned for his safety. |
|
194 |
In a letter dated 2 July 1968, the officer in charge at
the Victor Harbor Police Station, wrote to the Department of Aboriginal
Affairs regarding the plaintiff’s offending: |
I have to advise that [the plaintiff], (mother [Thora], of
Surrey Avenue, Victor Harbor, father the late [Joseph]), has committed various
offences recently in this town. The Facts are as follows:-
On the 25th June, 1968, he was questioned regarding the theft of a
transistor radio from a motor car. He was also questioned regarding larcenies
from the purses of schoolteachers at the Victor Harbor Public School. He
admitted these thefts, and on 26.7.1968 he was charged with the larceny of the
radio, and bailed to appear in this Court on 26th July, to answer to
this and perhaps other charges.
On 28th June, he broke and entered the home of a schoolteacher, and
stole a wallet containing $16-41. He also admitted that on the same day he
stole a pair of shoes, and used a bicycle without the owner’s consent.
This information came to our notice on 1.7.68 and on being questioned [the
plaintiff], after repeated denials, admitted the offences. He was charged this
date with Housebreaking and Larceny, and remanded to Windana to appear at
Victor Harbor on 11.7.68, when the Magistrate will be in attendance. On this
date I will ask the Magistrate to adjudicate on the offence of 25.6.1968.
There was no point in bailing him again, only to have him commit further
offences. Also his mother asked that he not be permitted to return home.
This offender is an aborigine.
Dr Moffatt was of the view that the stealing was probably
"accepted" by the Karpany family.
|
195 |
In July 1968, Dr Moffatt had discussions with Mr Bennett
concerning Thora and the plaintiff. Mr Bennett informed Dr Moffatt that Thora
had found the plaintiff difficult to manage and Thora had told Mr Bennett
that she did not want to have the plaintiff returned home to her. |
|
196 |
In an undated letter, presumably sent at around this time,
Thora wrote to Martha regarding the plaintiff: |
Just these few lines to say hello and I read [the
plaintiff’s] letter I am surprised he wrote to you but he has been a silly boy
he has been playing up and stealing so that put him in Windana on remand until
the 25 of this month and they will bring him back for his court but I have
asked if they will place him in a boys home after this but if you feel you can
do something for him you can come down to his court if you like as I can’t do
anymore for him if you do decide would you let me know but give this a lot of
thought before you decide if you want him back I was in Adelaide for a few days
but I did not remember your address to go out to see you well will you excuse
this short note as I want to post it today so I will close with love from
[Thora].
|
197 |
In a further undated letter, seemingly in reply to a
letter that Martha sent to her, Thora once again wrote to Martha regarding
the plaintiff. She thanked Martha for her most welcome letter and informed
her of the time and date of the plaintiff’s court attendance. Thora referred
to difficulties that her children were experiencing, associated with the
racist attitudes of both children and teachers at the school they were
attending. She asked Martha if she would be able to go and see the plaintiff
at Windana to ensure that he had clean clothes to wear for his court
appearance. A postscript to the letter said the following: |
You don’t know what it meant to me when I got your letter
this morning and read it I was so glad you have still enough love for [the
plaintiff] I realise your love is something more than I could ever give him.
|
198 |
The plaintiff was obviously ill-equipped to handle the
return. As foreseen by Dr Moffatt, the plaintiff had great difficulty coping
with the return and adjusting to his new life with his natural family. The
stress of the return obviously left the plaintiff confused, lost, perplexed
and isolated. He was overwhelmed. The State did little to prepare any of the
three parties – the plaintiff, Thora or the Davies – for the return of the
plaintiff to his natural family. |
|
199 |
The plaintiff was admitted to the Windana Boys Home on 2
July 1968. The plaintiff was 11 years old. In a report dated 5 July 1968, Dr
Moffatt outlined the plaintiff’s history to the senior psychologist at the
Department of Social Welfare, Mrs Penny. Dr Moffatt acknowledged that Thora
no longer wanted the plaintiff to live with her. She recommended that the
plaintiff be placed in the care of the Department of Social Welfare and
preferably placed in Glandore Boys Home where he could receive appropriate
treatment. In her opinion, "his behaviour is surely a manifestation of
chronic emotional disturbance". |
|
200 |
In an undated report from the Superintendent of the
Windana Boys Home to the secretary of the Department of Social Welfare,
presumably written in July 1968, the Superintendent described the plaintiff
in the following terms: |
[The plaintiff] is a real problem child, he is continually
getting into trouble by not listening or doing what he is told. He tries people
with his constant chatter. Often disturbs other inmates when they are engaged
in playing games. Never seems to keep a friend for very long. To supervise this
boy a person needs a tremendous amount of patience.
|
201 |
On 22 July 1968, Dr Moffatt wrote to Mrs Penny regarding a
visit that she had made to the plaintiff in Windana in the preceding week: |
I saw [the plaintiff] at Windana last week. His general
appearance was much improved, but he seemed tense and unhappy. He complained
that he did not have any visitors, and asked whether [Martha] knew of his
admission to Windana. I had to be fairly brutal and tell [the plaintiff] that
she had not contacted the Clinic, so that he should realise that she would not
want him home. He also knows that his mother, [Thora], no longer wants him.
I mentioned [the plaintiff’s] loneliness to Mr Bennett, who agreed that
[Martha] should not be contacted, but he will try to arrange for someone to
take an interest in [the plaintiff].
|
202 |
Intelligence and psychological testing conducted on the
plaintiff at around this time showed a drop in his overall level of
achievement. According to the psychologist conducting the testing, this
decline indicated that he was at that stage more anxious and less able to
make efficient use of his mental capacity. |
|
203 |
On 26 July 1968, the plaintiff appeared before the Victor
Harbor Juvenile Court. The Magistrate ordered that the plaintiff be placed in
the care of the Minister of Social Welfare until he reached 18 years of age.
It appears from the records that soon after, the plaintiff was transferred to
Glandore Boys Home where he would remain until about May 1969. |
|
204 |
On 5 August 1968, |
|
205 |
Carol recalled a time when she and the other members of
her family became aware that the plaintiff was in an institution and went to
visit him. She stated that the plaintiff was angry and upset because he had
been told that |
|
206 |
The plaintiff continued to misbehave while at Glandore. On
several occasions he absconded from the Home during the evening. He continued
to steal. A run-sheet maintained by the staff at Glandore recorded events
concerning the plaintiff and kept a record of his behavioural patterns during
the period August 1968 to April 1969. The run-sheet continually recorded the
plaintiff as being a disturbed and unhappy boy. During this period he was
highly nervous and would frequently lose control and become violent. In an
attempt to control his behaviour he was regularly administered medication. |
|
207 |
Dr Moffatt visited the plaintiff throughout this period.
In a letter dated 28 November 1968 to Mrs Penny, Dr Moffatt commented on the
decline in the plaintiff’s behaviour in the preceding weeks: |
As mentioned in our recent conversations, [the plaintiff] has been quite a
behaviour problem in recent weeks. Some of this, I am sure, relates to the
changeover of medication, but superimposed on the organic problems, there is
chronic insecurity viz. [the plaintiff] not knowing about his future
placement. In discussions with Mr Marr and Matron, we do all agree that [the
plaintiff] is overwhelmed by the number of boys at Glandore and it is apparent
to me that other children are using his poor control of aggression as a means
of obtaining vicarious satisfaction for their own feelings. Further foster
placement is most unlikely to succeed, so that it would seem that the only
other possibility is placement in a Cottage Home in 1969, if a vacancy arises.
[The plaintiff] was examined by Dr R. Rischbieth on 30/10/68 and he made the
following comments: "The E.E.G. is grossly abnormal with numerous brief
generalised epileptic complexes, but no focal features. Whilst the right-sided
pyramidal signs certainly indicate organic brain disease, or more likely
damage, I would have felt that there was little on the E.E.G. record to suggest
any progressive cerebral degeneration but that he should certainly go on
anticonvulsants and I would suggest Tegretol 100 milligrams t.d.s. in the first
instance".
In starting Tegretol, [the plaintiff] stopped his antidepressants and
tranquillizers and speedily became acutely disturbed. He has had two
periods in sick bay associated with skin rash, and I recall that he has had
numerous referrals to the Children’s Hospital for treatment of skin complaints.
The possibility of a dermatitis artefacta must be considered in this child, as
the sick bay and the fulfilment of his dependency needs provide a welcome
relief from the conflict with the other boys at Glandore.
He has had one weekend at home, at Victor Harbor, and also spent a weekend
when his mother visited relatives at Norwood. He is well aware that he is only
"tolerated" by [Thora] and her children, and in this regard it was
interesting to note that in the death notice relating to [Cyril] on November 20th,
[the plaintiff] was not listed as one of the children.
[emphasis added]
|
208 |
By the end of 1968, it was clear that the plaintiff was
ill. It is probable that he was depressed by reason of chronic insecurity. He
had been treated with anti-depressants and tranquillizers from time to time
since the age of 10. |
|
209 |
On 6 December 1968, Martha wrote to the Department of
Social Welfare asking whether it would be possible for the plaintiff to spend
the Christmas holidays with the Davies family. Her request was denied. Martha
was informed that other arrangements had been made for the plaintiff during
the holidays. However, it seems that the Department had deemed Martha to be
an unsuitable person to be charged with the care of the plaintiff. |
|
210 |
During visits with the plaintiff in early 1969, Dr Moffatt
recorded that he was tense, unhappy and she referred to the plaintiff as
"an isolate". She noted that the plaintiff had remained at Glandore
throughout the holidays, and that he was angry and hurt that his family had
not been in contact with him. He felt as though no one wanted him or cared
about him. She also noted that the plaintiff was continually fighting and
that the staff were developing a negative attitude toward him. |
|
211 |
On 28 March 1969, Dr Moffatt wrote to the senior
psychologist at the Department of Social Welfare, Mr Choularton, advising
that the plaintiff was a "socially isolated child whose needs cannot be
met in a large institution". Dr Moffatt recommended that the
plaintiff be admitted to a mental hospital for the purpose of monitoring his
behaviour and adjusting his medication. Subsequently, the plaintiff was
transferred to Windana before eventually being admitted to Hillcrest Hospital
on 2 May 1969. |
|
212 |
On 16 April 1969, Dr Moffatt wrote to Dr Richard
Rischbieth requesting that he review the plaintiff. Dr Moffatt provided the
following by way of background information: |
[The plaintiff] appears to have deteriorated considerably
during the past 6 months, although most of his behaviour is probably the result
of emotional conflict. There were other signs that he was not coping socially
... e.g. defecating on one occasion, in view of people waiting at a bus stop;
and on another occasion exposing himself to one of the female staff. I also had
the impression that he was dragging one leg, in walking. His general appearance
has become scruffy, with clothes in disarray.
...
[The plaintiff] does feel abandoned ... this is literally true of his own
family, and much of his anger seemed a despairing attempt to contact people.
However it became very distressing for staff and other children, hence his
removal to Windana on 11 April 1969. Since that date, by chance, he has not had
any medication, and when seen today he seemed relaxed and almost happy.
|
213 |
Dr Rischbieth wrote to Dr Moffatt on 22 April 1969,
informing her of his assessment of the plaintiff. Dr Rischbieth acknowledged
that he had perused the case notes pertaining to the plaintiff and recorded
the following observations concerning the plaintiff: |
I note that he seems to have had an epileptic episode in
October, but that most of the other episodes of disturbed behaviour might well
have been emotionally determined rather than being associated with his
dysrhythmia.
On examination, I agree that he was rather untidy, but he was cooperative, was
correctly oriented ...
I did not feel that he showed any signs to suggest a progressive neurological
disorder ... His behaviour has improved greatly since the transfer to Windana
and since his medication was stopped, though I would have felt, in view of the
markedly abnormal Electroencephalogram, perseverance with anticonvulsants was
indicated.
Dr Rischbieth commented that he thought that a short-term stay at Hillcrest,
providing an opportunity to observe the plaintiff’s behaviour, might be worth
considering.
|
214 |
Consequently, by the time the plaintiff was 12 years old,
his mental state had deteriorated to the point that his treating doctors
formed the view that inpatient treatment at a mental hospital was required. |
|
215 |
On 12 May 1969, Dr Moffatt visited the plaintiff at
Hillcrest. She observed that he looked well, that he complained of being
bored and wanted to know whether he was going back to Glandore. The ward
nurse reported that he was cooperative and eager to help. Dr Moffatt saw the
plaintiff again on 23 May 1969. On this occasion she observed that he looked
well and seemed to be settled but that his speech was more slurred.
Apparently in discussions regarding his future placement, the plaintiff
indicated that he would like to go to an Aboriginal family with another boy
of about the same age. |
|
216 |
It seems that the plaintiff’s behaviour significantly
improved once he left Glandore such that by May 1969, Dr Moffatt recommended
that the Department of Social Welfare give consideration to his future
placement. In a letter to Mr Choularton dated 16 May 1969, Dr Moffatt
recognised that the "problem of placement and identification with his
own race still remains to be solved". Dr Moffatt raised with Mr
Choularton the possibility of the plaintiff going to live with Mary
Dellaterie,[18] who was Thora’s first cousin and who had previously been a
foster parent. |
|
217 |
Dr Moffatt was aware that the plaintiff desperately wanted
to "belong" to a family and considered a foster placement with an
Aboriginal family to be the most advantageous option for him. Dr Moffatt
advised that a very gradual re-introduction to family life would be
appropriate given that the plaintiff was "not too unhappy" at Hillcrest.
Mr Choularton agreed that given that the plaintiff was easily dominated by
other children a return to an institution would not be appropriate. However,
he anticipated some difficulty in locating a suitable foster placement with
an Aboriginal family. |
|
218 |
On 28 May 1969, a welfare officer visited Mrs Dellaterie
at her home in Bridgewater. Mrs Dellaterie had a 13-year-old adopted son. The
welfare officer observed Mrs Dellaterie to be a "very homely person who
I feel could offer a very warm and understanding home for [the
plaintiff]". |
|
219 |
On 11 June 1969, the same welfare officer visited the
plaintiff at Hillcrest Hospital. The officer discussed with the plaintiff the
possibility of him going to live with Mrs Dellaterie. Reportedly, the
plaintiff was "quite excited" at this prospect. The officer then
spoke with the doctor directly responsible for the plaintiff’s care, Dr
Baillie, and made the following note of their conversation: |
Dr Baillie was most adamant that [the plaintiff] should
never have been placed at Hillcrest as he feels he has been in unsatisfactory
company and he feels that the boy has no problem, save that of being raised
under unsatisfactory circumstances. Queried the Doctor about these points as he
had been placed there by Dr Moffatt of Child Guidance. Dr Baillie recommended
that the boy be removed as quickly as possible.
|
220 |
The welfare officer was unable to contact Dr Moffatt. As
Dr Baillie had recommended immediate release, Mr Choularton saw no reason to
delay the plaintiff’s transfer to Mrs Dellaterie. |
|
221 |
The plaintiff was released from Hillcrest Hospital and to
Mrs Dellaterie’s house on 12 June 1969. It appears that the plaintiff
initially settled at the Dellaterie household relatively well. Within two
weeks of his arrival, Mrs Dellaterie reported that he was settling in well at
school and was making a conscious effort to settle into her home. However,
she also reported that she suspected that the plaintiff was
"pilfering" cigarettes and money from her. |
|
222 |
By 16 July 1969 matters had deteriorated. Mrs Dellaterie
contacted the Department of Social Welfare informing them that the plaintiff
had stolen sweets from a local shop. The welfare officer to whom she spoke
made the following note of the conversation: |
[The plaintiff] has mentioned many times to foster mother
that when he grows up he sees the only way of getting on as being a criminal.
Stated the other night he was having a dream and was a real criminal, was
having lots of fun, he was eventually caught by police and put in gaol but he
stated it was worth it. Foster mother feels she cannot trust him around the
home now.
The welfare officer visited the Dellaterie home the following day and had a
discussion with the plaintiff regarding his behaviour and his attitude towards
criminality and reminded him that if he misbehaved for Mrs Dellaterie, he might
be taken away from her home.
|
223 |
Dr Moffatt continued her contact with the plaintiff. On 17
July 1969, Dr Moffatt wrote to J. M. Lambert at the Department of Social
Welfare regarding the plaintiff: |
[The plaintiff] and Mrs Delatere attended the clinic at the
end of last month. I agree with you that Mrs Delatere is an
"impressive" foster parent and [the plaintiff] seems to be happy in
the household.
He was quite tearful in discussing the speed at which he was introduced into
the family situation.
|
224 |
Dr Moffatt saw the plaintiff and Mrs Dellaterie at the
Child Guidance Clinic on 28 July 1969. Dr Moffatt’s notes of the attendance
record that Mrs Dellaterie raised concerns regarding the plaintiff’s
behaviour, in particular the fact that he was caught stealing from a local
shop. However, it appears from the notes that the plaintiff, on the whole,
had settled in well with Mrs Dellaterie and got along well with Mrs
Dellaterie’s adopted son, RD. Dr Moffatt noted Mrs Dellaterie’s
observation that the plaintiff became increasingly affectionate during the
time that he stayed with her. She felt that the plaintiff had probably never
experienced love before. |
|
225 |
It appears, however, that within a short time the
plaintiff’s behaviour again deteriorated. On 22 August 1969, Mrs Dellaterie
contacted the Department of Social Welfare complaining that the plaintiff was
ripping his clothes, wetting himself, stealing, coughing across the table,
spitting in his food and being violent. It is evident from the departmental
records that at this time Mrs Dellaterie was having difficulty coping
with the plaintiff. It appears that around this time, the plaintiff was
experiencing difficulty sleeping and he continued to have nightmares. |
|
226 |
On or around 15 September 1969, the plaintiff attended the
Royal Adelaide Show with RD. While there, the plaintiff went off with a group
of Aboriginal boys. The police were alerted that the plaintiff was missing.
The plaintiff was subsequently apprehended by police and returned to Mrs
Dellaterie’s home. This appears to have been the "final straw" for
Mrs Dellaterie who contacted the Department of Social Welfare and requested
that the plaintiff be removed from her care. The Department contacted Dr
Moffatt who recommended that the plaintiff be placed in an institution such
as Brookway Park. Dr Moffatt was of the view that the plaintiff needed close
attention and that he might benefit from the type of training received at a
reformative institution. |
|
227 |
On 22 September 1969, the plaintiff was transferred to
Windana Remand Home for safekeeping and to allow the Department of Social
Welfare and the clinicians involved in the plaintiff’s care to assess his
situation. Mr Choularton subsequently agreed with Dr Moffatt’s
recommendation that the plaintiff be transferred to Brookway Park because he
felt that the plaintiff needed "a period of stability and a controlled
environment". The plaintiff was taken to Brookway Park on 7 October
1969. |
|
228 |
It appears that while at Brookway Park, the plaintiff was
eager to maintain contact with Mrs Dellaterie and expressed a desire to go
back and live with her. Mrs Dellaterie remained affectionate towards the
plaintiff and maintained that she eventually wanted to have him back. The
plaintiff went to stay with Mrs Dellaterie on weekend visits. Dr Moffatt
supported the maintenance of the relationship between the plaintiff and Mrs
Dellaterie. |
|
229 |
On 18 February 1970, a welfare officer visited the
plaintiff at Brookway Park. At this stage, the plaintiff was behaving well
and was not getting into trouble within the institution. Although the
plaintiff was still very fond of Mrs Dellaterie, he requested that upon
leaving Brookway Park he be placed in a different home because he did not
want to go back to the Aldgate School as he feared that he might be
"rubbished" by the other children. The plaintiff’s conduct at this
time would suggest that he placed little value on relationships or their
maintenance. He appeared accustomed to having relationships broken. |
|
230 |
Dr Moffatt continued to see and treat the plaintiff while
he was at Brookway Park. On 23 March 1970, Dr Moffatt made the following
report of the plaintiff’s progress: |
I have seen [the plaintiff] on several occasions since his
admission to Brookway Park. He appears to be more settled, and is not on any
medication at present, and volunteered the fact that he is in fewer fights with
boys at Brookway Park. However, it appears that he is still having considerable
difficulty with some of his school work, especially Maths, and he is aware of
the fact that he is not skilful with practical, manual tasks.
He is still maintaining the contact with Mrs Delatorie at Aldgate, and she has
had some contact with the clinic recently. However, in view of her fairly rigid
attitudes towards social behaviour, and the knowledge that she tends to see a
great deal of [the plaintiff’s] natural mother’s "bad" behaviour in
[the plaintiff], there are going to be difficulties if [the plaintiff] returns
to this home on a fulltime basis. I also have the impression that Mrs
Delatorie’s son, [RD], "uses" [the plaintiff] and his behaviour to
express his own teenage rebellious feelings. Also, there is no father-figure to
help either of these boys in their acceptance of male authority and their own
sexual identification.
As you know, in 1965, intelligence testing at Wakefield Street Clinic showed
average verbal ability ... and over the years he has maintained his reading and
spelling age at the level of his chronological age. But in the last 2 years
there has been a gradual deterioration in his non-verbal intelligence,
consistent with the presence of brain damage. This is going to cause
difficulties regarding future employment. I feel in view of his relatively
stronger verbal ability, that [the plaintiff] should be encouraged to remain at
school for as long as possible. He will have some re-assessment on his next
visit to the clinic ...
...
In view of his multiple handicaps, especially the series of broken dependency
relationships since 1965, I would recommend that [the plaintiff] attends
secondary school from an institution, preferably a hostel, rather than risk
another failed foster placement.
|
231 |
By March 1970, the plaintiff, now aged 13, was described
as having multiple handicaps. These were considered to stem from the chronic
insecurity suffered by the plaintiff as a result of multiple broken
dependency relationships. |
|
232 |
On 8 April 1970, a welfare officer discussed the plaintiff
with the Superintendent at Brookway Park and made the following note of the
conversation: |
[The plaintiff] has been in various types of trouble over
the last 2 weeks, all which had progressed to a more serious nature of offence
within the institution. It is felt that he is "finding his feet" and
considers himself to be one of the old boys now. This is giving him a
confidence that he did not have before and is "back-chatting" officers
and becomes abusive at times. Spent time in one of the cabins and had several
cuts with the cane from the Superintendent.
|
233 |
On 9 April 1970, the plaintiff underwent another EEG. The
result was classified as "abnormal". |
|
234 |
Dr Moffatt’s notes contain a summary of her observations
of the plaintiff following monthly consultations during the period January to
April 1970. Dr Moffatt noted the plaintiff’s appearance was "rather
dishevelled" but that he seemed more relaxed and that he was no longer having
medication. She recorded that the plaintiff reported feeling happier at
Brookway Park than he had been when he was at Glandore and that he was having
fewer fights. During this period, the plaintiff maintained contact with Mrs
Dellaterie. |
|
235 |
On 20 July 1970, departmental psychologist Mr G C Purdie
wrote a report regarding the plaintiff. He agreed with Dr Moffatt’s opinion
that the best option for the plaintiff would be to place him in a hostel to
enable him to attend secondary school. Mr Purdie reported: |
Mrs Dellatorie is quite happy to have [the plaintiff] back
in her home and she has maintained consistent contact with him during his stay
at Brookway Park. [The plaintiff] has spent his days out at Bridgewater with
her. Mrs Dellatorie is also prepared to have [the plaintiff] home for weekends
and holidays if it is decided that he would be better suited to a hostel at
present. During my interview with Mrs Dellatorie, she referred to [the
plaintiff] as a "poor little devil" and someone that you had to pity
and have understanding for because of his upset background. Her discipline did
appear to be inconsistent: overindulgent in some ways and very strict in
others. However she was genuinely interested in [the plaintiff’s] welfare and
wants to do which is best for [the plaintiff].
It seems that a hostel placement would be the most suitable one for [the
plaintiff]. This would enable the Education Department facilities to be used
most effectively in [the plaintiff’s] interests and would provide [the plaintiff]
with a gradual reintroduction to Dellatorie household. [The plaintiff] would
prefer to go straight back to Mrs Dellatorie’s but is prepared to go to a
Hostel, if there is a vacancy. He sees his placement at Brookway Park as the
result of not getting on too well with Mrs Dellatorie. However he feels that
she hasn’t been "bossing him" so much on his recent days out, and his
relationship with [RD] appears to be a very warm, happy one. Contact with Dr
Moffatt will be maintained.
|
236 |
On 9 October 1970, Dr Moffatt wrote to Mr Choularton
regarding the plaintiff: |
[The plaintiff] certainly appears to be more settled, and
there are indications that he is feeling accepted by other boys, especially in
sport, but he has not made a close friend at Brookway.
His main concern continues to be his poor schoolwork, and doubts about future
employment. As you know, from earlier intelligence testing, [the plaintiff]
would be suited to a special-type class in Technical High School.
His other area of concern is the relationship with Mrs Delatorie. There are
indications that [the plaintiff] still feels that he is a "visitor"
on his weekends at Aldgate, and that he is more involved with [RD], who seems
to meet [the plaintiff’s] dependency needs. We have cautioned [the plaintiff]
against relying completely on the friendship of one boy, as their paths will
soon diverge, i.e. they will attend different schools and have different types
of jobs ...
I was therefore concerned to hear that [the plaintiff] was considered
unsuitable for long-term hostel placement, and that it had been suggested that
the boy be discharged "home" in the near future. It would seem to be
a disastrous move at this stage in the school year and [the plaintiff] could
well act out to get removed from a situation which he knows that he cannot as
yet handle.
As it seems unlikely that hostel placement will eventuate, could consideration
be given to his transfer to another institution, which could provide long-term
placement as well as allowing [the plaintiff] to gradually develop more
confidence and responsibility for his own behaviour. I would consider that this
boy will need continuity of support during his secondary school years and also
probably during his first year of employment.
|
237 |
Whilst Dr Moffatt was very keen to ensure that the
plaintiff continued his secondary education, the Superintendent of Brookway
Park considered that it would be fruitless. The plaintiff himself did not
want to continue his schooling. He applied to be transferred to Lochiel Park
where he wanted to go to learn farming. |
|
238 |
On 11 November 1970, Mr Purdie reported to the deputy
director of the Department summarising the various viewpoints of those
involved and the possibilities for the plaintiff’s future: |
Dr Moffatt has expressed concern that [the plaintiff] should
be placed back with his previous foster mother Mrs Delatorie of Bridgewater and
suggests that he be transferred to another institution "which could
provide long term placement as well as allowing [the plaintiff] to gradually
develop more confidence and responsibility for his own behaviour".
[The plaintiff’s] Probation Officer, Mr Lambert, has recently informed this Branch
that Mrs Delatorie is no longer willing to foster [the plaintiff] full time,
but is prepared to have him in the home for weekends and holidays.
Mr Lambert has now requested that [the plaintiff] should be seen at Brookway
Park with a view to a) placement at Lochiel Park and b) assessment of his
academic potential. Dr Moffatt feels that [the plaintiff] would be suited
to a Special Class in a Technical High School in 1971, but [the plaintiff’s]
Probation Officer and staff at Brookway Park have expressed their concern that
this may not be the best course of action and that [the plaintiff] may be more
suited in a position as a working boy if placed at Lochiel Park ...
|
239 |
Dr Moffatt’s notes of her attendances with the plaintiff
during this time indicate that the plaintiff was very anxious regarding his
placement after Brookway Park. It appears that the stress associated with the
uncertainty surrounding his future had a negative effect on the plaintiff’s
behaviour. The plaintiff had previously been given "honour boy"
status at Brookway Park to reflect his good behaviour. However, on 8 December
1970, the Superintendent at Brookway Park wrote to the secretary of the
Department of Social Welfare and of Aboriginal Affairs recommending that this
status be removed. The Superintendent reported an incident where the
plaintiff absconded when he was due to spend the weekend with Mrs Dellaterie
and instead he met up with some friends and got drunk. The Superintendent
expressed the view that if something was not done about the plaintiff in the
very near future, "we could have trouble with him, and [the plaintiff]
himself has said that he will abscond". |
|
240 |
On 10 December 1970, Mr Purdie recommended that the
plaintiff be transferred to Lochiel Park where he could attend as a schoolboy
and be enrolled at a local technical high school. Mr Purdie further
recommended that if the plaintiff subsequently began to show signs of stress
resulting from the school situation, he could become a working boy at Lochiel
Park. |
|
241 |
In December 1970, Robert Day, husband to the plaintiff’s
natural sister, Hilda wrote to the Department of Social Welfare asking
whether it would be possible to have the plaintiff come and stay with them at
their home in Wirrega during the Christmas holidays. |
|
242 |
On 31 January 1971, the plaintiff was transferred from
Brookway Park to Lochiel Park. On 10 February 1971, Mr Lambert wrote to
Robert informing him that due to the plaintiff’s recent move to Lochiel Park,
he would not be able to spend a holiday period with them, but inquired
whether they would be prepared to have the plaintiff come to stay with them
for weekend visits. Mr Lambert was aware of the long term need for the
plaintiff to maintain contact with his family given that he was likely to
gravitate back to them when he was eventually released from the institutions.
In Mr Lambert’s view, this contact was "quite necessary". |
|
243 |
Initially the plaintiff appeared to do well at Lochiel
Park. He occasionally made weekend visits to his sister, Hilda, which seemed
to be successful. Mr Lambert considered that a placement with Hilda and
Robert would be the most likely next step for the plaintiff. |
|
244 |
However, by June 1971, the plaintiff’s behaviour had once
again deteriorated. He was once again behaving aggressively and absconded on
at least one occasion. The plaintiff was subsequently taken to Windana at
which time he was further psychologically assessed. On 16 June 1971, the
Acting Superintendent at Lochiel Park, Mr Hall, made the following comments
regarding the plaintiff: |
[The plaintiff], who is 14 years and 7/12’s, can be a
friendly and helpful lad, but it is very difficult to hold a conversation with
him and everything has to be expressed in very simple form. I have no objections
whatsoever to [the plaintiff] returning to Lochiel Park as except for the last
couple of weeks, he has fitted in well. However, I have doubts as to whether we
have achieved much and I would greatly appreciate the opinion of
Mr Choularton as soon as possible. Perhaps this boy is also in need of
greater personal attention.
|
245 |
On 16 June 1971, Mr Lambert wrote to Hilda and Robert
inquiring as to their views regarding the plaintiff going to live with them
permanently upon his release from Lochiel Park. Mr Lambert indicated that
among other possibilities, he was also considering the option of the
plaintiff going to live with his brother George at Meningie where there was
potential employment with a local professional fisherman. |
|
246 |
On 29 June 1971, |
|
247 |
By mid July 1971, the plaintiff had been returned to
Lochiel Park. During one of Mr Lambert’s visits, he discussed with the
plaintiff the various options for his future. Mr Lambert found the plaintiff,
who stated that he had learnt a good lesson from being sent to Windana, much
easier to converse with. It appears that the plaintiff was relatively settled
and happy at this time. He was very happy working in the kitchen at Lochiel
Park, where he was proud of his achievements. The plaintiff told Mr Lambert that
he would like to settle in the city and get a job doing similar work. The
Acting Superintendent reported that, at this time, the plaintiff’s behaviour
was "exceptional". |
|
248 |
On 26 October 1971, after considering the various options
and consulting with the relevant people and agencies, Mr Lambert recommended
that the plaintiff be released from Lochiel Park and placed with Hilda and
Robert at Wirrega. On 5 November 1971, effect was given to this
recommendation and the plaintiff was transferred to Wirrega to live with
Hilda and Robert on a permanent basis. |
|
249 |
In early 1972, the plaintiff obtained casual, part-time
employment with the Department of Aboriginal Affairs, repairing and painting
houses. |
|
250 |
On 27 May 1972, the plaintiff, now aged 15, was
apprehended and charged with assault, being a minor consuming liquor and with
break and enter and larceny. He was remanded to Windana before being
transferred to the McNally Training Centre on 2 June 1972. The plaintiff
appeared in the Adelaide Juvenile Court on 16 June 1972. He was remanded to
Windana pending the preparation of a psychological report. Mr Purdie prepared
that report on 7 July 1972: |
[The plaintiff] was interviewed at McNally Training Centre
on 27th June, 1972 and 5th July, 1972. He was polite and
co-operative and willingly completed a number of psychological tests. He
presented as a tall well built part aboriginal youth with a slight speech
impediment. He had some difficulty in expressing himself fluently.
Previous Psychological Contacts
[The plaintiff] has had considerable contact both with the Psychology Branch of
this Department and the Prospect Child Guidance Clinic.
He was a patient of Dr Moffatt’s at the Clinic from November, 1965 to June,
1967. At that stage he was living with his first set of foster parents, [
...
During this latter period [1968-1970], following a referral to a neurologist,
it was established that [the plaintiff] was brain damaged. Dr Moffatt felt
that this contributed to [the plaintiff’s] disturbed behaviour.
Anticonvulsant medication proved helpful in modifying his behaviour,
particularly his aggressive outbursts.
Dr Moffatt did not consider it necessary to suggest alternative psychiatric
contacts when she left the Clinic. She did however, suggest that [the
plaintiff] was a very insecure boy and that he would need reassurance of his
own worth and encouragement and support during the remainder of his school
years and during his early working life. He has not been on any medication
since early in 1971 when he left Brookway Park.
...
Personality
Testing suggested that [the plaintiff] is an immature youth who tends to react
suddenly to his impulses with little consideration for the outcome of his
actions. His personality is fragmented and poorly developed, probably
reflecting the number of unsatisfactory family and foster-family relationships
he has had in the past. He has a poor self image and tends to feel that he is a
failure, particularly in the area of employment.
[The plaintiff] is an attention seeker and feels the need to impress others.
Initially he will do this verbally but if he becomes frustrated he will act-out
aggressively. This behaviour tends to further alienate him and increase his
dependence on those who accept him, usually a delinquently-oriented group of
friends.
Some difficulties in sexual identification were noted and these may later
affect his relationships with girls. His mood was appropriate and he was
satisfactorily orientated. There was no evidence of delusions or
hallucinations. There were no indications of serious psychological disturbance
requiring further investigation.
The Offence
On the day of the offence [the plaintiff] had just terminated his two-day old
employment at a Tarpeena saw mill. At the time of the offence [the plaintiff]
was at an advanced stage of intoxication. He claims he cannot remember the
actual incident at the hotel or the name of the other person involved. Most of
the details were related to him when he awoke the next day in the police cells.
He expressed little guilt over his actions and felt that it is one of those
things "that happen" after consuming a large amount of alcohol.
Excessive drinking appears to have been part of his way of life since he left
Lochiel Park in November, 1971.
Conclusions and Recommendations
[The plaintiff] is an immature, insecure youth who is not as dull as his
poor verbal fluency and speech impediment would seem to indicate. He would
easily pass for a youth much older than his fifteen years.
Much of [the plaintiff’s] life in the past few years has been spent in
institutions. He is too immature to function independently in the community. It
is noteworthy that after leaving Lochiel Park [the plaintiff] was not in any
trouble while living with his married sister at Wirrega and later his married
brother at Meningie. It was not until he left Meningie and travelled around the
South East with the building maintenance gang that he broke the law. It would
appear that he will need further guidance and structure in his developing years
before he is able to function satisfactorily without outside support.
[The plaintiff] has expressed a wish to go back to school. During his remand
period at McNally Training Centre he has attended school each day. The Head
Teacher has indicated that [the plaintiff] has been keen and alert in the
classroom. Although he would never be able to pass secondary-level certificate
examinations he could still benefit from returning to school.
There are some indications that placement would be available for [the
plaintiff] with either his mother or his brother at Meningie. An order enabling
him to do this would appear to be in [the plaintiff’s] best interests at this
stage. Continued supervision by a Probation Officer is felt to be necessary.
[emphasis added]
|
251 |
The plaintiff appeared in court on 7 July 1972. The
Magistrate imposed a fine in respect of the offences of consume liquor and
break and enter and larceny, and released the plaintiff who was placed in the
care of his mother at Meningie. |
|
252 |
On 1 September 1972, a Community Welfare Department
officer reported that the plaintiff "appears to maintain reasonable
general health. He appears to live quietly in Meningie, helps his relatives
and gets occasional casual work". The departmental officer considered
that there was an urgent need for suitable employment to be obtained for the
plaintiff. |
|
253 |
On 6 September 1972, Thora contacted the Department for
Community Welfare informing them that the plaintiff’s whereabouts were
unknown. She assumed that he had gone to stay with some friends in Adelaide.
The next record of the plaintiff’s whereabouts was a report of the probation
officer, Mr J C Munro, dated 31 October 1972: |
[The plaintiff] was released from Lochiel Park in early 1972
and returned to his home in Meningie. Apparently the home placement has now
broken down, due in part to [the plaintiff’s] inability to keep a steady job.
[The plaintiff] has been receiving treatment from Dr Moffatt at the Child
Guidance Clinic who feels that the boy has a brain dysfunction and would be
best placed at Bedford Industries.
The current situation is that [the plaintiff] is staying with [Mrs J]... but he
is in need of permanent board and employment. A possibility for board with Mrs
M E Dellatorres, ...
|
254 |
As at 13 November 1972, the plaintiff’s whereabouts were
unknown to the Department for Community Welfare. It seems that during this
period, the plaintiff tended to wander, seemingly both within South Australia
and interstate. He was unable to obtain any form of permanent employment. The
departmental officer responsible for the Meningie area had great difficulty
in maintaining contact with the plaintiff. |
|
255 |
On 22 November 1972, the secretary of the Department for
Community Welfare received a letter from his counterpart in New South Wales
informing him that the plaintiff had appeared before the Euston Children’s
Court on 8 November 1972 on charge for stealing a motor vehicle. The
plaintiff was released on probation on the condition that he be of good behaviour,
obtain and remain in regular employment and return immediately to South
Australia to live with his mother. |
|
256 |
Between 28 November 1972 and 5 December 1972, the
plaintiff accompanied a bus tour organized by the Department for Community
Welfare for unemployed Aboriginal youths. The Department reported that
"his response to this experience was most encouraging". However, it
did not result in any progress in obtaining suitable employment for the
plaintiff. By May 1973, the plaintiff had once again absconded and his
whereabouts were unknown to the department. Thora advised the Department that
she thought that he was in Queensland. |
|
257 |
On 7 November 1973, a Community Welfare departmental
officer prepared a background report in relation to the plaintiff in which
the following evaluations were made: |
[The plaintiff] has never known satisfactory family
relationships. It would appear that his early fostering with a [
...
Perusal of this boy’s file would indicate that his early, prolonged,
unsatisfactory foster placing, together with his brain damage condition has
militated against his satisfactory development.
As his current whereabouts are unknown it is not possible to formulate future
plans.
[emphasis added]
|
258 |
On 15 January 1974, in a minute to the Minister of
Community Welfare, the Director General of Community Welfare recommended that
the plaintiff be discharged from the care and control of the Minister
pursuant to section 49(1) of the Community Welfare Act 1972 (SA). At
this time, the plaintiff’s whereabouts remained unknown. The Director General
subsequently decided not to proceed with the discharge. In any event, the
plaintiff was due for release from the care and control of the Minister on 20
November 1974, his eighteenth birthday. |
|
259 |
As at 11 October 1974, the plaintiff’s whereabouts were
still unknown. It appears that the plaintiff lived with Thora for a short
period of time during which time "he got angry all the time and fought a
lot". He subsequently left to travel around Australia. It appears that
the plaintiff returned to Thora’s home shortly before his eighteenth
birthday. The plaintiff obtained employment with the local council. |
Findings
|
Thus, the picture gained by the end of 1974, is of a
youth, now aged 18 years, chronically insecure, psychologically damaged
and for much of his childhood having required treatment with anti-depressants
and tranquillizers as well as other medication. He was ill equipped to cope
with adult life. |
|
|
261 |
It is convenient at this point to record a number of
findings. I am satisfied that the chronology recorded to this point of these
reasons, subject to identified exceptions, is generally accurate. I find that
the events recorded occurred, that the observations recorded were made and that
the opinions expressed were in fact held. In particular I accept and act on
the reports and opinions of Dr Moffatt and of the psychologist,
Mr Purdie. Later in these reasons I address in more detail the issues of
the plaintiff’s suggested brain damage, epilepsy and mental illness. |
Early adult years
|
The plaintiff’s late adolescence and early adult years
were tumultuous. During this time, he moved around the country, experienced
extended periods of unemployment, suffered several major accidents and he
drank heavily. |
|
|
263 |
The plaintiff came into contact with the criminal justice
system. On one occasion, in February 1976, the plaintiff was convicted of
having resisted police arrest for which he received a sentence of 28 days’
imprisonment, suspended upon his entry into a recognizance to be of good
behaviour. Other offences included assault, disorderly behaviour, wilful
damage, break and enter and larceny. |
|
264 |
On 15 September 1977, a solicitor acting for the plaintiff
in relation to charges of break, enter and theft, sought a report from
Dr Richard Burns, a neurologist at Flinders Medical Centre. Dr Burns
examined the plaintiff on 22 September 1977. Dr Burns took a history of
the plaintiff having suffered occasional amnesic periods in which he could
not remember for an hour or two. He gave a history of being told that he had
fits but he was unable to describe any previous epilepsy. On examination no
focal neurological signs could be found. Dr Burns formed the view that the
plaintiff was of dull intelligence which he suspected was multi-factorial. Dr
Burns noted that the plaintiff was well nourished but thought that he
probably had engaged in excessive alcohol intake. Dr Burns did not consider
further neurological investigations to be warranted. This report has to be
understood against the background that Dr Burns did not have any history
other than that which came from the plaintiff. He does not appear at this
time to have been informed about the detail of the plaintiff’s childhood
history. |
|
265 |
As earlier discussed, Mrs Angas also prepared a report for
the Court in relation to the plaintiff. The report is undated, but was
presumably written in or around September 1977. It contained the following: |
[The plaintiff] is a person of Aboriginal descent, i.e. he
has both Aboriginal and European antecedents. He is the fourth child of a
family of seven children.
At the age of 14 months he was admitted to the Adelaide Childrens Hospital
suffering from malnutrition and complications associated with this condition.
Although [the plaintiff] was not a state child the then Protector of Aborigines
was at that stage legal guardian of all Aboriginal children and through the
authority vested in him by the Aborigines Act 1939-1962 he authorised the
placement of [the plaintiff] in a foster home.
[The plaintiff’s] mother consistently approached the Protector requesting the
return of her son, however, these requests were not heeded until the change in
the legislation i.e. Aboriginal Affairs Act 1962-1972 which transferred the
legal guardianship and responsibilities of Aboriginal children to the parents.
Problems associated with [the plaintiff’s] behaviour started to develop about
the time the defendant commenced his schooling. He was very unhappy at school
and he would have been the only Aboriginal child attending the school.
The difficulties experienced by [the plaintiff] in the areas of identity and
inter personal relationships with other children were perpetuated by the
feelings of apprehension and anxiety for his welfare displayed by his foster
parents. The foster home eventually broke down and the foster parents
completely rejected [the plaintiff] even though they were the only
parent-figures that he had actually known.
It was not until he was 10 years of age that [the plaintiff] was re-united with
his family. It was his first meeting with them since his infancy and quite
naturally he found adjustment very difficult.
Shortly after his reunion with his family [the plaintiff] appeared in the
Juvenile Court and was made a State Child. He spent periods in welfare
institutions and was alternatively fostered with relatives.
Because of his failure to achieve any progress at school the Psychiatrist at
the Child Guidance clinic referred [the plaintiff] to Hillcrest Hospital for
investigation. Although [the plaintiff] now lives with his family at Meningie
it must be recognized that he has suffered severe maternal deprivation at a
time of his life when his mother’s influence was most necessary for his
development. In his particular case [the plaintiff] has also been deprived of a
reliable mother substitute.
Psychiatrist assessments carried out on [the plaintiff] whilst he was under the
supervision of the Child Guidance Clinic and Hillcrest Hospital indicate that
[the plaintiff’s] behavioural problems may be influenced by psychological
and/or other damage of a more permanent nature. It may be referred to a
Psychiatrist for assessment, counselling and therapy.
Summary
1. [The plaintiff] is a person of Aboriginal descent. During his formative
years he has been exposed to a series of traumatic emotional experiences which
may have limited his ability to cope with the ordinary pressures in our
society.
2. In recent years [the plaintiff] has not had any positive treatment or
counselling for behavioural problems consistent with the offence of now being
dealt with by the Court.
3. [The plaintiff] and his family circumstances have been known to me since
1957 and I have personal knowledge and experience of the deprivation which [the
plaintiff] has suffered. Like many young people who have been segregated from
normal family relationships [the plaintiff] has problems in identifying with
any particular group, individual and/or family. He does however report his
circumstances quite frequently to me.
|
266 |
I accept that this report generally presents an accurate
picture of the plaintiff. However, I do not accept the accuracy of the
contents of the second and third paragraphs. In particular, for reasons
elsewhere discussed, I do not accept that the plaintiff was suffering from
"malnutrition and complications associated with this condition". I
further do not accept the accuracy of the third paragraph and the asserted
authority of the Protector. Again, this topic is discussed in detail
elsewhere. |
|
267 |
The plaintiff married Veronica Trevorrow (nee Pepper).
They met in 1980. They have had periods of separation. They have 4 children
and several grandchildren. |
|
268 |
Since meeting his wife, aside from visiting Meningie from
time to time, the plaintiff has predominately lived in Bairnsdale, Victoria.
In the mid-1990s, the plaintiff, with his wife and children, moved to
Meningie for a brief period in an attempt to form a relationship with the
plaintiff’s extended family, particularly his brothers and their respective
families. They remained in Meningie for a short time before moving to Murray
Bridge and then eventually returning to Bairnsdale. |
|
269 |
The plaintiff’s relationship with his wife has from time
to time been violent. To a large extent this has been exacerbated by the
plaintiff’s depression and alcohol abuse. In April 1985, following a brawl
with his wife when he was intoxicated, the plaintiff was hospitalised with a
head injury. On another occasion, on 25 August 1994, the plaintiff was
charged with common assault on his wife, however the charge was subsequently
withdrawn. |
|
270 |
The marriage has not been happy. As discussed elsewhere
the plaintiff has no feelings for his wife or children. Although the marriage
has continued, and is in that sense stable, it is not a fulfilling
relationship – to the contrary it is an unhappy and unsatisfactory
relationship. |
Employment History
|
The evidence of the plaintiff’s employment history is
patchy. He has experienced periods of unemployment, but also periods during
which his employment was relatively stable. |
|
|
272 |
From 16 February to 15 May 1972, the plaintiff was
employed as a casual labourer by the South Australian Department of Social
Welfare and Aboriginal Affairs. In late May 1972, the plaintiff worked as a
labourer for a short period at a mill at Tarpeena, South Australia. In around
1974, the plaintiff was employed for a short while as a factory hand at
Malley’s, now Whirlpool, in Queensland. In October 1974, he gained employment
as a labourer with Queensland Rail. Between 30 June 1975 and 2 February 1976,
the District Council of Meningie employed the plaintiff as a part-time
labourer. During the period 23 July 1976 to 20 July 1977, the plaintiff was
employed initially as a junior and then as a fettler by Australian National
at Port Augusta, working on the Commonwealth railways. During the period 23
August 1982 to 8 April 1983, the plaintiff was first employed as a trainee
under the National Employment Strategy for Aboriginals Scheme and then as a
gardener/groundsman at the Meningie & Districts Memorial Hospital. In
1984, the plaintiff was employed as a school assistant/ ground and
maintenance person at the Bairnsdale Primary School in Bairnsdale, Victoria.
Between 2 May 1988 and February 1991, the plaintiff was employed as an
administrative officer with the Victorian Department of Agriculture and Rural
Affairs. This was on a permanent full-time basis from November 1988. |
|
273 |
Between 5 February and 2 June 1990, the plaintiff was
employed by CORE (now Corrections Victoria). During this period, the
plaintiff was on secondment from the Department of Agriculture and Rural
Affairs. From 5 February until 12 April 1990, the plaintiff was employed as a
trainee prison officer and from 13 April until 2 June 1990, the plaintiff was
employed at Pentridge Prison as a prison officer. |
|
274 |
In 1991, the plaintiff left his employment with the
Department of Agriculture and Rural Affairs and enrolled at Bairnsdale High
School with the intention of completing his secondary education. However, the
plaintiff found that he did not fit in and experienced difficulty
concentrating, so he did not pursue his studies. |
|
275 |
From 17 August 1992 to 19 October 1993, the plaintiff was
employed as a Koori Educator at Lakes Entrance Secondary College in Lakes
Entrance, Victoria. From 11 October 1993 to 30 June 1995, the plaintiff
worked as an information officer under the Community Development Employment
Scheme with the Ngarrindjeri Land & Progress Association at Camp Coorong
in Meningie. During the period 10 July 1995 to 26 February 1996, the
plaintiff was employed as a research officer by Yaitya Warra Wodli Language
Centre Inc, in Port Adelaide. In about November 1996 to May 1997, the
plaintiff worked as a clerical officer at the Wahli Centre, Kalparrin
Community Inc in Murray Bridge. |
|
276 |
From 30 August 2001 to the present, the plaintiff has been
employed in sympathetic circumstances as a counsellor at Gippsland and East
Gippsland Aboriginal Co-Operative in Bairnsdale. The attendance to his duties
permit his own disabilities to be accommodated. |
|
277 |
In 1977, the plaintiff was involved in an accident while
working on the railways. The accident occurred at Alice Springs during the
course of his employment when he fell from a section car. Between March and
May 1977, the plaintiff received workers’ compensation in respect of the
injuries that he sustained as a result of the accident. |
|
278 |
On 6 April 1979, the plaintiff was seriously injured in a
motor vehicle accident when the vehicle that he was working on was hit by a
truck. As a result of the accident, the plaintiff sustained multiple
fractures to his left leg that required numerous surgical procedures. As a
result of these injuries, the plaintiff continues to the present day to have
difficulty undertaking labouring work. The plaintiff received compensation in
respect of the accident. The injuries rendered him totally incapacitated for work
for a period. Between 9 July 1979 and 27 June 1980, he received sickness
benefits. |
|
279 |
The plaintiff was involved in a further motor vehicle
accident on 21 August 1981, from which he suffered concussion, bruising and
sensory loss in his right arm. However, he does not suffer any sustained
disability as a result of these injuries. |
|
280 |
The plaintiff has twice received blows to the head - on 5
April 1985 and on 25 December 1995 - from which he suffered concussion and
abrasions. However, these did not result in any lasting disability. |
|
281 |
Until shortly prior to the commencement of the trial, the
plaintiff had maintained, and had reported to a number of people, including
medical practitioners, that in June 1990, while working at Pentridge Prison,
he had witnessed the fatal stabbing of a prisoner ("the Pentridge
incident"). Shortly prior to the commencement of the trial, the
plaintiff informed his solicitor, and subsequently the Court, that this was
incorrect and that, in fact, he had not witnessed such an incident. |
|
282 |
The plaintiff gave evidence that some time prior to the
Pentridge incident, the plaintiff witnessed his father-in-law being stabbed.
This led to his father-in-law’s death. The plaintiff recounted this incident
to Professor McFarlane. In Professor McFarlane’s report of 22 November 2005
he reported: |
It appears that in the 1980s, he and his wife were in the
lounge of their home. At the time his father-in-law and mother-in-law were also
resident in the property. His mother-in-law and father-in-law had an argument
in the kitchen which resulted in his father-in-law being stabbed through the
left side of his chest. [The plaintiff] immediately ran into the kitchen and
called the ambulance and the police. His father-in-law died one week later as a
consequence of his injuries. [The plaintiff] was unsure as to whether he had
commenced having these nightmares prior to or after this incident.
|
283 |
On 13 April 1992, after the Pentridge incident, the
plaintiff reported that he had been stabbed in the home of his wife’s uncle
on the previous day. |
|
284 |
As earlier observed, the plaintiff worked as a prison
officer at the Pentridge prison between February and June 1990. Detailed
employment records were tendered. |
|
285 |
In late 1991, almost eighteen months after he had ceased
employment at Pentridge, the plaintiff consulted Dr Maginn. He gave Dr Maginn
a history of having seen a prisoner stabbed to death. The plaintiff described
giving the prisoner mouth to mouth resuscitation. He complained to Dr Maginn
of not sleeping well, of dreams about the stabbing, and of headaches. In Dr
Maginn’s opinion he presented as being deeply depressed with little hope for
his future. Dr Maginn formed the opinion that the plaintiff suffered
from post-traumatic stress disorder with depression. This appears to be the
first occasion on which the plaintiff claimed to have witnessed the stabbing
incident. |
|
286 |
The plaintiff pursued a claim for compensation. The claim
was rejected and the plaintiff did not take the matter further. No court
proceedings were issued. The claim form identified a date and time when it
was said the incident occurred. However, employment records would suggest
that the plaintiff was not at work on that day. |
|
287 |
The plaintiff continued to recount the stabbing incident
to several medical practitioners, including Professor McFarlane, until
shortly before trial. Apparently the plaintiff then instructed his solicitors
that he did not witness the stabbing incident, and he gave sworn evidence to
that effect in the trial. In cross-examination, the plaintiff accepted that
he had not told the truth about the incident. |
|
288 |
Professor McFarlane expressed the opinion that there may
be several explanations for the plaintiff having given a false account. He
explained that the plaintiff’s account regarding the incident demonstrated
several issues: |
The issue as to whether his reporting having witnessed the
stabbing is simply an antisocial act or whether there is a more complex
explanation requires some exploration. This is certainly a reasonable
probability in regards to this matter.
[The plaintiff] reports a significant history of both being a perpetrator of
interpersonal violence as well as witnessing substantial assaults. This
includes the stabbing to death of his father-in-law. There is a probability
that his memory arises from him having witnessed the stabbing which later
proved fatal of his father-in-law. It is difficult to ascertain what occurred
at the time of [the plaintiff] making a workers compensation claim. It appears
that there was some delay in this happening. There may well have been some
blurring or reconstruction in his mind of the events that occurred at about
this time. In particular, his involvement in a motor vehicle accident at this
time, despite him having no memory of feeling traumatised by this, may have
made him vulnerable to the emergence of a range of traumatic memories.
Frequently, if an individual is involved in a traumatic incident that leads to
the development of traumatic memory, memories will emerge from a variety of
previously experienced traumas. If [the plaintiff] in this situation began
having nightmares of a man being stabbed, it is possible that he may have then
linked this back to his knowledge of the stabbing of the prisoner at Pentridge.
Hence, the emergence of this memory may have led to a false attribution as to
the origin of the event of these symptoms. As I have outlined in my report
previously, a number of the symptoms of post traumatic stress disorder are
shared with major depression. It is also the case that people with major
depressive disorder also experience nightmares. Hence, there are two
alternative propositions namely, that the nightmares relate to the death by
stabbing of his father-in-law and this is the origin of his post traumatic
stress disorder, or he simply has depression in the association of nightmares.
...
In my view, this constellation of symptoms and behaviours demonstrates the
increasing blurring of the multiple traumatisation that has occurred to [the
plaintiff] in the course of his life. The assaultative behaviour directed
towards his wife and his general antisocial behaviour are issues that in my
opinion are related to his problematic upbringing. It is likely that he
struggled to function in the institutional environment of a prison. His problematic
employment which was prematurely cut short may have been as a consequence of
this re-evoking many of the anxieties and difficulties that he had because of
his prior experiences in institutions in his adolescence. It was upon this
matrix that his problematic adult relationships were built which have
demonstrated his propensity to interpersonal violence.
|
289 |
By way of further explanation, Professor McFarlane said
the following when giving evidence: |
The issue is that people who have been traumatised, their memory is, in
fact, much more fallible than we might like to believe. ... It is because this
part of the brain is vulnerable to the effects of stress. And, see, one
possibility with [the plaintiff] is that he falsely believed that he had
witnessed this event but he did that on the basis of a retrospective
reconstruction. He was having nightmares of seeing somebody being stabbed and
obviously having well, according to his account, intense nightmares about that
matter. Now the issue that transpired when I interviewed him on this day was in
fact his father-in-law had been stabbed and killed in his own house which he
had never previously said to me and one can easily see how the incident in
prison could have re-evoked the memory of this incident that occurred in his
own home and then progressively, he had come to believe that he had actually
witnessed the event, in fact when he in reality hadn’t. I mean, I suggest this
is a man who has actually got some difficulty in really establishing what is
real and unreal in his life. Now, one, it is impossible to make any definitive
statement as to whether that is what was happening in this case, but it is
certainly possible. I mean, I have personally seen patients. I will never
forget one man who in fact was a firefighter on Ash Wednesday who was on a fire
truck who was driving across the summit of Mt Lofty at the time the fire front
hit and the truck caught on fire. He had an extremely intense exposure. He then
used to have the experience when he would be driving to appointments when he
would drive through an intersection and then have a full-blown flashback that
he had an accident driving through the intersection. He had never been involved
in a motor vehicle accident and he would have to stop and sort of regroup
before he could drive on. So his mind was actually telling him he had driven
through the intersection and had an accident when in fact he hadn’t and the
reason why I believe that is pertinent to this issue is because I think it
demonstrates that people can sometimes construct images in their mind but have
no reality. Now, [the plaintiff] is somebody who obviously has significant
cognitive deficits because, as has been demonstrated in Associate Professor
Clark’s report, he is a man who has had a number of traumatic exposures
including seeing his father-in-law being stabbed fatally and I believe it is
not impossible that the explanation I have given is what actually occurred.
Now, equally it is the case that he may have done this to seek financial advantage
or to escape his work as a prison officer and I am unable to decide which it
was but I think there is a possibility of that explanation.
|
290 |
Professor McFarlane reiterated what he said in his report
of 22 November 2005, namely that there were a number of possible hypotheses
as to why the plaintiff had initially provided a false account, if in fact he
had, and a number of hypotheses for why he eventually elected to reveal the
correct circumstances. |
|
291 |
The Pentridge incident was explored in depth at trial. I
accept that the plaintiff’s evidence at trial was honest evidence. I accept
that he did not witness the alleged incident at Pentridge. No clear
conclusion can be reached as to the claim he made for compensation as a
result of the suggested witnessing of the incident. It is possible that it
was a "transference" as a result of witnessing his father-in-law
being stabbed. It may have been the combination of alcohol, depression and of
generally not coping. I, however, reject the defence submission that the
plaintiff’s evidence was false in an attempt to increase his damages. |
|
292 |
The medical records in relation to the plaintiff are
extensive and voluminous. They record many hospital attendances. Throughout
his life, the plaintiff has suffered relatively poor health, no doubt
exacerbated by alcoholism and heavy smoking. He has on occasion been
hospitalised due to alcoholism. |
|
293 |
The plaintiff has from time to time suffered from, been
diagnosed with and occasionally hospitalised as the result of a number of
illnesses, including: gastro-intestinal bleeding; abdominal pain; gastritis;
chronic tracheobronchitis; asthma, sometimes chronic; cirrhosis of the liver;
hematemesis; emphysema; severe headaches; post-traumatic pain in his left
leg, that was diagnosed as psychogenic pain syndrome with a conversion
element; vascular necrosis of the top and left femur; alcohol abuse;
arthritis; overdose; chest pain, which at one stage became a chronic problem;
whiplash resulting from a motor vehicle accident; ethanol toxicity;
hepatitis; ethanol induced chest pain; carpal tunnel; renal colic; cellulitis
of the left buttock; a shoulder injury sustained while helping a friend to
move a car engine; lower back pain and back injury, which prevented him from
working for a time; pneumonia; infective exacerbation of asthma; headaches
and blurred vision; diabetes; hypertension; angina; neck and shoulder pain;
swelling of legs; blood clots; and a hernia. |
|
294 |
On 3 December 1991, subsequent to the Pentridge incident,
a psychiatrist diagnosed the plaintiff as suffering from post-traumatic
stress disorder and depression, which related directly to that so called
incident. On 6 April 1992, the plaintiff was admitted to a psychiatric
hospital. On 9 May 1997, the plaintiff underwent a percutaneous tracheostomy
subsequent to which he was admitted to intensive care, where he remained
until 14 May 1997. In May 1997, the plaintiff was also treated for problems
associated with psychosis. The plaintiff spoke to a doctor about experiencing
voices and suicidal thoughts. He also spoke about alcohol abuse and binge
drinking. A report from the Meningie Health Service dated 3 November 1997
indicated that the plaintiff was suffering from chronic depression with
intermittent episodes of acute psychosis, post-traumatic stress disorder,
ischaemic heart disease, chronic obstructive airways disease with recent
severe exacerbation requiring ventilation and giant cell arteritis. In 1998,
the plaintiff was assessed as presenting with moderate depression with
anxiety, considerable social stressors, poor physical health and
non-compliance with prescribed medication. |
|
295 |
On 30 May 2000, the plaintiff was admitted to hospital
with a stab wound to the chest and the possibility of a collapsed lung. The
incident was associated with a party at which the plaintiff and his wife
became violent with one another. His general poor health has continued to
trial. |
Criminal Antecedents
|
In his early adult years, the plaintiff had many
encounters with the criminal justice system for offences including: drunk and
disorderly; stealing a motor vehicle; assault; wilful damage; offensive
behaviour; break and entering; resist police; driving without due care and
with excessive blood alcohol concentration; larceny; and driving an
unregistered and uninsured motor vehicle. |
|
|
297 |
The plaintiff has served at least one brief period of
imprisonment and has been placed on numerous suspended sentence bonds to be
of good behaviour. |
Findings
|
Generally I accept the foregoing summary under the heading
Adult Life, as being an accurate statement of the facts, matters and events.
I have dealt specifically with the Pentridge incident but otherwise the
facts, matters and events are accepted as being established on the balance of
probabilities. Most were not in dispute. |
Thora
|
Thora was a loving mother. She loved and cared for her
children and step-children. She did her best to provide for the children.
This included their emotional, material and educational needs. A number of
witnesses spoke about Thora, in particular, her children and stepchildren.
Later in these reasons I discuss their evidence and my acceptance of their
evidence. However, it is convenient at this point to address their evidence
concerning Thora. |
|
|
300 |
Tom recalled living with Joseph after Joseph and Thora
separated. Although Joseph had the primary care of Tom, he spent time with
Thora, in particular during school holidays. When Joseph died, Tom was cared
for by Thora. Tom recalled his mother in the following terms |
A. Mum was a good mother. She was always there for us children and I
remember she was a good cook. She could make a meal up to feed all of us out of
nothing. We’d look around the cupboard sometimes and see what we had to eat and
thinking we got no tucker but all of a sudden, she’d have a big damper or stew
or something like that make up what food that we ate so she was good at that;
always making sure that once again, like that our clothes were right, that our
bedding was right. Same as dad at the old Three Mile always had to make sure
that the beds were right in case the welfare came around because they came to
what we call raids on the camps and you had to make sure that everything was
correct for when they came in to do their investigations, so mum was always
making sure that everything was right. Yes, she was, as I said, a good mother.
I learnt a lot from her.
Q. What did you learn from her.
A. Mum helped me a lot with my schooling, my reading, writing, homework and
things like that. It’s later on when I got married to my wife Ellen, Ellen
actually started doing the cooking in the house because Ellen couldn’t cook. I
learned it from mum because mum taught me how to cook and how to make meals and
that, so it’s those type of things. Mum always talked about family because
family was important of who was related to who and who your cousin is and your
family line and your uncles and your aunty because that was very important of
knowing who you are and where you came from and what family line you got and
the same with dad. He was always another one who said ‘Always know your family,
know your family line, know who your relations are’ and they always used to
know that to make sure that we knew where we could go if anything ever
happened.
|
301 |
George described Thora as a loving mother - "she was
good, she loved her children and she always tried to make ends meet to give
us what we needed". As a child, it was his recollection that the
children never went hungry. The children attended school and were encouraged
and assisted in their schooling. |
|
302 |
George initially spent time with Joseph following his
parents’ separation. However, George would visit his mother. Later, George
went to live with Thora and Cyril. He stayed with them for "quite a few
years". He spoke of Cyril’s problems with alcohol and the difficulties
that caused Thora, but that even in these circumstances, Thora maintained the
home for the children. |
|
303 |
George described himself as being "very close to my
mother". Generally he painted a picture of family life that continued
notwithstanding the parents’ separation and with the children having ongoing
contact of value with both parents. |
|
304 |
The plaintiff’s half-sibling Rita was aged about 17 years
at the time of the plaintiff’s removal. She spoke of her step-mother Thora in
the following terms: |
Q. Can you tell his Honour about Thora and what she was like in that time
that you were living with her and she was sharing a house with your father.
A. Well, she was very good to us. She made sure that we got a little bit
more education, to finish school off, as much as we can and she’d help up and
she was pretty good to us. No complaints.
Q. Did she teach you things.
A. Yes, how to cook and you know and sew clothes.
Q. How did she sew clothes.
A. Needle and cotton.
Q. There wasn’t any power at One Mile.
A. No.
Q. What else did she teach you.
A. Just basic things, you know; when us girls were getting older.
Q. Women’s sorts of things.
A. Yes, women’s.
Q. You saw her around her children, around Hilda, then George, then Tom. You
saw her look after them.
A. Yes, yes.
Q. Can you tell us about how she was around the babies.
A. She was a sort of a loving mother. She took pretty good care of them
while I was, you know, around.
Q. How old were you when you stopped living with your father and Thora, when
you moved out.
A. I think I was about 15 or 16.
Q. When you moved out, had [the plaintiff] been born by then or not.
A. No, he wasn’t.
Q. Do you know how old Tom and George were when you moved out.
A. I think they would have been only about four, or five, you know; around
about that age.
Q. At any time when you were living with Thora and your father, were you
running around wild or drinking alcohol or anything like that.
A. While I was in their care?
Q. Yes, when you were living at One Mile.
A. No, no.
|
305 |
Alice, another half-sibling of the plaintiff, was aged
about 15 years at the time of the plaintiff’s removal. She described living
with Joseph and Thora from about 1954. She recounted in evidence: |
Q. And you said you went to live with your father.
A. Yes.
Q. And was he living Thora at that stage.
A. He was, yes.
Q. And how did you get on with Thora.
A. Good.
Q. Can you describe her for us.
A. Yes, she helped us in a lot of areas, or myself anyway, with cooking,
sewing, with our schooling. She taught us a lot.
...
Q. Were there other children living with Joseph and Thora at
that time.
A. Yes, Hilda, Tom and George.
Q. And what about your sister, Rita.
A. And Rita, yes.
Q. Was she living there all the time that you were living there.
A. No, not all the time.
Q. And who was looking after the children that were living in the house.
A. Thora.
|
306 |
Alice later recalled the Trevorrow family’s living
arrangements: |
Q. Was there ever any time when you were living with Thora and Joseph before
you went to the hospital to work that Thora wasn’t there.
A. No, she was always there.
Q. Was there any a time in the period that you were living with them that
there were problems between your father and Thora.
A. I didn’t see any problems.
|
307 |
Alice gave the following evidence about Thora as a mother: |
Q. And how long would you stay with Joseph and Thora when
you would visit.
A. Probably stay the afternoon and then go back before evening.
Q. How would you get there.
A. Walk.
Q. It was about a mile out of town; is that right.
A. That’s all, yes, it wasn’t very far.
Q. Were you able then to watch Thora as a mum with young children.
A. Yes.
Q. Can you tell his Honour about what kind of mother she was with young
children.
A. She was caring and loving with the children, the same as she was with us
when I was living there and going to school.
Q. What things would she do with the children. What special things would she
do for you and your sisters and brothers.
A. As I said, besides teaching us how to cook and sew and everything, she
would check our books, what we had for school, make sure we kept up-to-date
with everything and just the normal, you know, caring mother.
Q. Would she do anything special on birthdays.
A. Yes, birthdays were very special, a special treat for all of us. I mean,
living in the camps we didn’t have much treats, it was very hard for all of us
kids, but what we had we valued, you know, treats like that.
Q. When she was cross with you or your brothers and sisters for being
naughty, what would she do.
A. Just speak to them very sternly and just grab their hand and say ‘Come
with me’.
Q. Did she ever slap them.
A. No, I never ever seen her hit.
|
308 |
Hilda gave evidence that generally supported the
description of Thora as a loving, caring mother. |
|
309 |
In May 1958, the plaintiff’s mother married Cyril Karpany.
Thora and Cyril had three children; Karen, Cyril Thomas and Bevan. It appears
that Cyril and Thora’s relationship was turbulent and violent. The evidence
established that, when drunk, Cyril would "bash" Thora. On at least
one occasion, Cyril was imprisoned for assaulting Thora. |
|
310 |
Hilda, George and Tom all recalled that Cyril frequently
drank alcohol and was violent toward their mother. Hilda and Tom recalled a
time when Cyril was gaoled for assaulting her. Hilda said that he was not, in
general, violent toward any of the children, except George whom he "belted"
for trying to defend his mother. She described Cyril as a drinker who would
drink to the point of being drunk. |
|
311 |
Throughout their marriage, Thora and Cyril moved between
Tailem Bend, Meningie and Bonney Reserve. Mr Bennett visited the Karpany
family at Tailem Bend on 6 September 1963. He made the following report
regarding their circumstances: |
For sometime now the welfare of this family has caused
concern to both Mrs Angas and myself.
Due to an unsatisfactory record with both Commonwealth and South Australian
Railways further attempts to find employment have failed.
The family have moved between Tailem Bend, Meningie and Bonney Reserve during
the past two years, living under shocking circumstances.
Recently due to [Thora’s] confinement they moved to Tailem Bend again and are
now living in what is known as Taylor’s shack. The reason for moving was to
enable [Thora] to be near medical attention. It is known that [Thora] has been
suffering from Toxaemia of pregnancy, and heart condition and requires the
maximum amount of rest possible.
I visited the shack on 6th September, 1963, and found that the shack
is far from weather-proof, having deteriorated during this severe winter. The
floor and mattresses were damp, and the whole structure drafty. As the shack is
situated on the river bank it is necessary for [Thora] to climb a particularly
steep cliff each time she visits Tailem Bend for shopping or for medical
attention. Toilet facilities are nil.
I arranged for [Thora] to be admitted to the Tailem Bend hospital on my last
visit which means that she will be due for discharge very soon, and will be
taking a new born baby into these surroundings.
As employment with accommodation has proved negative, I am of the opinion that
something must be done to assist this family.
|
312 |
Cyril and Thora continually requested help from the
Aborigines Department, seeking monetary and housing assistance, and incurred
considerable debt to the Department. |
|
313 |
In late 1963, Cyril obtained permanent employment in
Murray Bridge. His employer regarded him as a good worker, however it seems
that Cyril’s problem with alcohol affected his ability to work. On 6 December
1963, Mr Bennett noted that the Karpany family had decided to stay in Murray
Bridge and that they were "going particularly well". |
|
314 |
However, it appears that the family continued to struggle
to find suitable accommodation. On 30 March 1965, the Director of Aboriginal
Affairs wrote to Cyril and Thora advising them to contact a government
department for assistance in finding suitable accommodation as at that stage
they were living with RR in a Departmental Trust Home. The Director stated: |
Your present manner of living is not satisfactory for your
family and may result in the matter being referred to the [CWPRB].
|
315 |
In early-mid 1965, Thora separated from Cyril. In a letter
to Mrs Angas, Thora described Cyril as a "hopeless case",
acknowledged that he was no help to her and her children and that she was
unlikely to obtain any financial support from him. In a minute to the senior
welfare officer dated 30 July 1965, requesting housing for Thora and her
children, Mrs Angas wrote: |
[Thora] is adament [sic] that she will not return to her
husband...
[Thora] should not have [Cyril] in the first place. It was a decision made in
the hours of her last quarrel with [Joseph] and it certainly was an unhappy
decision for [Thora].
Mrs Angas also noted that in the period following her separation from Cyril,
Thora received some assistance from Joseph. Mrs Angas requested relief from the
Department for Thora in the form of a departmental trust home at Victor Harbor,
rental allowance and cash payments. The Department supported Mrs Angas’
application for housing for Thora and her six children, who subsequently moved
to Victor Harbor.
|
316 |
On 29 September 1967, Thora was convicted of failing to
send one of her children, Tom, to school. As a result, Tom was sent to
Glandore Boys Home for six months. |
|
317 |
Thora died on 8 July 1977. |
|
318 |
The evidence established that Thora faced difficulties in
her life. In particular, following her marriage to Cyril, she encountered
hard times. This was probably because of his drunkenness and consequent abuse
of her and his inability to hold steady employment. She had a number of
children by Cyril and following Joseph’s death, took on primary
responsibility for Tom, George and Hilda. It is significant that the family
continued as a family both prior to and following Joseph’s death. Thora,
through these difficult times continued to provide for the needs of her
children. |
|
319 |
I accept the evidence as outlined above from the
plaintiff’s siblings and half siblings concerning Thora. Later in these
reasons I discuss the particular difficulties encountered at the time of his
return to his natural family. |
Joseph
|
The evidence of Hilda, George and Tom was to the effect
that after their parents had separated and until the death of their father,
they spent time living with both parents, that is, from time to time they
would live with Joseph in his hut in the fringe camps outside of Meningie,
and at other times they would live with their mother and her new husband,
Cyril, who moved between Meningie, Tailem Bend and Murray Bridge. However, it
appears that for the majority of the time, Hilda, George and Tom lived with
their father. George recalled his father in the following terms: |
Q. What was [Joseph] like as a person.
A. He was a good man.
Q. What sort of worker was he, to your observation.
A. He was a solid worker, a very hard worker, and I have known him to work
on the farm and other places and other old people told us they built a road
through the Coorong region, they done a lot of that with sledgehammers and
breaking rocks. They said he was a very hard worker.
Q. You said also that he had rules, you said that he would make you fold up
your school clothes when you got home. Was he a bit fussy.
A. Yes, very fussy. We had to have our boots cleaned and clothes folded.
Q. How did you do that.
A. We used to get suet from the butcher shop and he would make us clean and
all of that to make them shiny and keep the water out.
Q. You said he would make you do your homework.
A. Yes.
Q. If it was dark in the hut, how would you light the place to be able to do
homework.
A. We had these old Salvital tins we would fill with kerosene and with a
wick and he would light those up.
|
321 |
The evidence of the other siblings generally supported the
description of Joseph as hard-working, that he would ensure that the children
maintained their schooling and that they were well cared for. Hilda, Rita and
Alice gave further evidence that they would assist their father in caring for
the younger children and that other female relatives would also assist their
father. |
|
322 |
As earlier discussed, on 17 March 1958, welfare officer,
Mr Weightman, reported to the chief welfare officer in the Aborigines
Department regarding Joseph. This report provides considerable insight into
the family’s living conditions: |
The house on the Coorong occupied by [Joseph] and [Thora]
was visited. The surroundings of the house were observed to be reasonably clean
and tidy. The only child at home was a boy about 3 years, who was warmly clad
and only a little dirty from playing.
The house was constructed of galvanised iron in good condition. The floors were
of sand covered with clean bags. The house was kept somewhat untidy but was not
dirty.
[Joseph] is employed on a nearby farm and was not available for interview.
The general impression I gained from the visit was that, while living
conditions were far from ideal, I could not recommend that any child be
committed due to the unsatisfactory state of the home. It is thought that the
living conditions of CW’s family are inferior to those of [Joseph].
|
323 |
Some two months later on 14 May 1958, Sergeant Liebing
reported to an unidentified recipient (presumably the secretary of the APB)
that due to the recent marriage of Thora and Cyril, two young boys born of
the association of Thora and Joseph were cared for by Mrs Vizzard, whom
Sergeant Liebing understood to be Joseph’s sister. Sergeant Liebing wrote: |
I would appreciated [sic] if when one of your officers next
visits this area to visit Mrs Vizzard and sees to the welfare of these
children. I am of the strong opinion that neither [Joseph] nor Thora should be
allowed to look after these children due to their past conduct. Mrs Vizzard is
an elderly woman and the tie of these children may be too great for her and I
am also informed that she suffers from mental troubles and in one of these
conditions she may endanger the lives of these children.
|
324 |
More than a year later, on 15 May 1959, the secretary of
the APB wrote to Joseph regarding his sons, George and Tom. The secretary
noted that Mrs Vizzard had called at the departmental office and
explained that she was no longer able to assist in the care of the two boys.
The secretary encouraged Joseph to permit the boys to be placed in an
institution at Semaphore. |
|
325 |
On 18 May 1959, Constable Goldie of the Meningie Police
Station wrote to the secretary of the APB in relation to the secretary’s
letter to Joseph. Constable Goldie explained that he had spoken to Joseph
regarding the contents of the secretary’s letter and that Joseph was
unwilling to allow the children to be removed at that time as they were happy
and did not want for anything. Constable Goldie made the observation that: |
At present the boys are being cared for by their mother,
[Thora] and she states that she will look after them for as long as she
possibly can. The boys have been in her care for the past six weeks.
I have seen the two boys in question and they appear to be quite happy, fit and
well.
|
326 |
The response of the secretary of the APB on 27 May 1959,
stands in stark contrast to the above observations of Constable Goldie, where
the secretary responded that he would not agree to the plaintiff being
returned to Thora as he believed she was a "most unsuitable mother for
any of her children" and as far as he was aware Thora had "never
requested that she actually see [the plaintiff], but has demanded that the
child be returned to her care". The secretary continued that it would be
possible for Thora to see the plaintiff in the presence of a welfare officer
if suitable arrangements were made. |
|
327 |
On 8 March 1960, Joseph wrote to the officer in charge at
Meningie requesting assistance for his children as he was experiencing
difficulty finding employment and food was scarce. The officer in charge
forwarded the request to the secretary of the APB who on 15 March 1960
responded by again suggesting that the Trevorrow children be placed in foster
homes and that before relief would be provided Joseph would need to register
for employment and apply for unemployment benefits. As earlier observed, the
officer reported inter alia "[Joseph] claims that the [children]
are well fed, which they are and also that Rita Trevorrow is now keeping
house full time for all of them". |
|
328 |
A file note of Mrs Angas written on 19 May 1962 noted that
at that time, Hilda, George and Tom were all living with Joseph in the fringe
camps. At that time, Alice, was also living with her father in the fringe
camp, as was her husband, William Abdulla. Alice was assisting Joseph in
caring for the children. In a request for child endowment from the
Department, Joseph noted that Hilda, George and Tom had been in his care
since 1 July 1961. As earlier observed, Joseph died on 14 January 1966 at Meningie. |
|
329 |
Had the plaintiff remained throughout his childhood with
his natural family he would have faced the same family life as his siblings.
He probably would have spent time with both Joseph and Thora and would have
received the same love, care and support as was provided to the other
children. |
Findings
|
I have set out in this section my general findings about
Thora and Joseph. At times they struggled with life’s difficulties. However,
they provided for their children in a manner that allowed the family to
continue as a family. Following their separation, Joseph, with the assistance
of female relatives, provided the primary care for Hilda, George and Tom.
They maintained contact with Thora and returned to her primary care following
Joseph’s death. They were good parents. Hilda, George and Tom learnt to cope
with life’s adversities and flourished. |
|
331 |
It is now necessary to turn to a more detailed analysis of
the relevant legislative scheme prior to and at the time of the events
discussed above. |
|
332 |
A legislative scheme had been put in place by the State
dealing with welfare issues including the protection of children. This scheme
developed over decades and underwent a major change in the early 1960s. An
understanding of the scheme and its development is central to the
determination of the plaintiff’s claims. |
|
333 |
A number of statutes need to be considered including the Maintenance
Act 1926–1937, the Children’s Protection Act 1936 (SA), and the Aborigines
Act 1934-1939. The Maintenance Act 1926–1937 was replaced by the Social
Welfare Act 1926-1965 (SA). The Aborigines Act 1934-1939 was
replaced by the Aboriginal Affairs Act 1962. |
|
334 |
However, before coming to discuss the provisions of these
statutes, it is convenient to first trace the history of legislation with
respect to Aboriginal people. |
Proclamation
|
On 15 August 1834, the province of South Australia came
into existence with the assent to the South Australia Colonization Act
(UK). Governor Hindmarsh proclaimed the Province on 28 December 1836. The
First Proclamation, read at Glenelg, included the following: |
It is also, at this time especially, my duty to apprise the
Colonists of my resolution, to take every lawful means for extending the same
protection to the Native Population as to the rest of His Majesty’s Subjects,
and of my firm determination to punish with exemplary severity, all acts of
violence or injustice which may in any manner be practised or attempted against
the Natives, who are to be considered as much under the Safeguard of the law as
the Colonists themselves, and equally entitled to the privileges of the British
Subjects.
I trust therefore, with confidence to the exercise of moderation and
forbearance by all Classes, in their intercourse with the Native Inhabitants,
and that they will omit no opportunity of assisting me to fulfil His Majesty’s
most gracious and benevolent intentions towards them, by promoting their
advancement in civilisation, and ultimately, under the blessing of Divine
Providence, their conversion to the Christian Faith.
|
336 |
The first South Australian legislation in relation to
Aboriginal people was Ordinance No 12, 1844, "An Ordinance
to provide for the Protection, Maintenance and Up-bringing of Orphans and
other Destitute Children of the Aborigines". Section V established the
Protector of Aborigines as: |
[T]he legal guardian of every half-caste and other
unprotected Aboriginal child, whose parents are dead or unknown, or either of
whose parents may signify before a Magistrate his or her willingness in this
behalf, until such child shall attain the age of twenty-one years; and the said
Protector shall have and exercise the same powers as any guardian of infants
lawfully appointed according to the order and course observed in England.
Pursuant to Ordinance No 12, the Protector was empowered to apply to
the courts for a child of suitable age to be apprenticed to trades or business
people. However, the consent of the parents, if alive and resident in South
Australia, and the Governor were required. Ordinance No 12 provided:
Be it therefore Enacted, by His Excellency the Governor of
South Australia, with the advice and consent of the Legislative Council
thereof, That it shall be lawful for any two Justices, with the consent of His
Excellency the Governor and of either of the parents, if living and within the
Province, but if otherwise then without such consent, on the application of the
Protector of the Aborigines, to bind by indenture and put out any half-caste or
other Aboriginal child, having attained a suitable age, as an apprentice, until
he shall attain the age of twenty-one years, to any master or mistress willing
to receive such child in any suitable trade, business, or employment
whatsoever, and every such binding shall be as effectual in Law, to all intents
and purposes, as if the child had been of full age, and had bound himself to be
such apprentice: Provided that such two Justices, previously to executing such
indenture, shall inform themselves, as fully as they can, of the child’s age,
which age shall be inserted in such indenture, and shall thereupon, for the
purposes of this provision, be taken to be the child’s true age without further
proof: Provided also, that such Justices shall see that in the indenture due
and reasonable provision is made for the maintenance, clothing, and proper and
humane treatment of any such apprentice.
Therefore, the effect of Ordinance No 12 was to bestow legal
guardianship of particular Aboriginal children upon the Protector of
Aborigines.
State Children Act 1895
|
The State Children Act 1895 (SA), pursuant to which
the State Children’s Council was established, gained Royal assent on 20
December 1895. Section 16 provided for the functions and powers of the State
Children’s Council as follows: |
(1) The care, management, and control of the persons and property of all
State children; and the supervision of all children nursed by foster-mothers
outside any establishment under the control of the Destitute Board:
(2) Power to apprentice and place out State children:
(3) Power to licence fit and proper persons to be foster-mothers to children
under the age of two years:
(4) Power, subject to the approval of the Governor, to appoint institutions
for the reception, detention, education, employment, training, or reformation
of State children:
(5) Power to grant licences for lying-in homes:
(6) The control, supervision, and management of all institutions as
hereinafter provided:
(7) The control and supervision of lying-in homes:
|
338 |
Section 33 of the State Children Act provided that
a neglected or destitute child could be sent to an institution by order of
the court. Children of Aboriginal descent meeting this description fell
within the scope of the State Children’s Council’s power. However, despite
the fact that the State Children’s Council had agreed to take charge of the
children of mixed descent found wandering or camping with Aboriginal people,
and that legal precedents had been established, courts often refused to
commit children into care. [19] |
Aborigines Act 1911
|
In order to address the situation with respect to the
maintenance, care and control of neglected or destitute Aboriginal children,
the then Premier introduced a Bill to strengthen the protection and control
provisions for Aboriginal children. The Aborigines Act 1911 repealed Ordinance
No 12, 1844. When introducing the Bill into Parliament, the Premier
described it as:[20] |
an Act to make provision for the better protection and
control of the aboriginal and half-caste inhabitants of the State of South
Australia.
|
340 |
The purposes of the Aborigines Act 1911 were
protection, care and control of Aboriginal people. In particular, the
provisions were designed to bring about a separation of Aboriginal people
from the general population. Accordingly, the Act provided for the
establishment of reserves,[21] the power to keep Aboriginal people in reserves, remove
them between reserves[22] and to remove Aboriginal camps away from towns.[23] |
|
341 |
In the course of describing the need underpinning the
introduction of the Bill, the Premier said of the situation involving the State
Children’s Council:[24] |
There has been much correspondence recently regarding the
control of very young half-caste children, and action was being taken to bring
most of them who were habitually with the natives in their camp under the
control of the State Children’s Department. The council of that department
quite concurred in such a policy. A strong protest, however, came from the
native parents, who begged to be allowed to keep their very young children,
because they were fond of them and would take every care of them. It was
decided a few months ago to comply in many cases with the native mothers’
desire, and only absolutely neglected children were being taken to the State
Children’s Department. The question was, however, still under consideration
awaiting the passing of this Bill.
|
342 |
The Aborigines Act 1911 prohibited Aboriginal
people from camping or loitering in townships and other designated places,
restricted and controlled their movement from one district to another, and
empowered the Chief Protector to keep any Aboriginal person within the
boundaries of a reserve. |
|
343 |
In the second reading speech relating to the Aborigines
Act 1911, the Premier said: [25] |
It was proposed to legislate not only for the protection and
care of those people, but also for their control. It was becoming more and more
urgently necessary, for their own sakes, that legal power should be given to
keep them away from the towns, and where and when such was found to be
expedient – again for their own benefit – to require them to live in certain
localities, and on special reservations; and, as the title of the Bill showed,
it was to apply only to the Aborigines of South Australia proper.
|
344 |
Section 4 of the Aborigines Act 1911 defined
"aboriginal" as: |
(1) Every person who is –
(a) An aboriginal native of Australia or of any of the islands adjacent or
belonging thereto; or
(b) A half-caste who lives with such an aboriginal native as
wife or husband; or
(c) A half-caste who, otherwise than as wife or husband of such an
aboriginal native, habitually lives or associates with such aboriginal natives;
or
(d) A half-caste-child whose age does not apparently exceed
sixteen years.
|
345 |
Pursuant to section 5 of the Aborigines Act 1911,
the Aborigines Department was established and afforded "the duty of
controlling and promoting the welfare of the aboriginals". Section 7
outlined the specific duties of the Department, which included the provision
of welfare, such as food, clothing and blankets, to Aboriginal people. The
Minister responsible for the Department, the Commissioner of Public Works,[26] was given the authority to appoint Protectors. |
|
346 |
Section 10 of the Aborigines Act 1911, the
precursor to section 10 of the Aborigines Act 1934-1939, addressed
the legal guardianship of children of Aboriginal descent and provided: |
(1) The Chief Protector shall be the legal guardian of every aboriginal and
every half-caste child, notwithstanding that any such child has a parent or
other relative living, until such child attains the age of twenty-one years,
except whilst such child is a State child within the meaning of "The State
Children Act 1895," or any Act amending or substituted for that Act.
(2) Every Protector shall, within his district, be the local guardian of
every such child within his district.
(3) Such local guardian shall have and exercise the powers and duties
prescribed.
|
347 |
The remarks of the then Premier in relation to section 10
shed little light on the precise nature of the rights and powers that the
legislature intended to confer on the Chief Protector under this section:
[27] |
By clause 10 the Chief Protector, in addition to his other
duties, was made the legal guardian of all aboriginal and half-caste children
until they were 18 years of age. This was similar to section 5 of the ordinance
of 1844, but not so restricted in its application.
|
348 |
Although there was debate about children being removed
from parents under the Aborigines Act 1911, this was in relation to
the powers given under section 17 and not section 10.[28] It appears that the purpose of section 17 was not to
provide the Chief Protector with power to remove Aboriginal children but to
strengthen the ability of the State Children’s Council to deal with neglected
or destitute Aboriginal children.[29] |
The Royal Commission 1912
|
On 19 December 1912, a Royal Commission was appointed to
inquire into and report on the control, organisation and management of the
South Australian institutions set aside for the benefit of the Aboriginal
people, and generally upon the whole question of the South Australian Aboriginal
population. The Commission recommended, inter alia, that the
Aborigines Department be controlled by a board. It recommended that the work
of saving destitute Aboriginal children and placing them under the care of
State foster-mothers, in conjunction with the State Children’s Department, be
encouraged and extended. It was further recommended that the board have the
power to take control of any children at the age of 10 years whose
environment was not conducive to their welfare and place them where the board
deemed in the best interests of the children.[30] |
|
|
350 |
The Chief Protector at the time, William Garnet South,
appointed on 15 January 1912, appears to have used the recommendations of the
Royal Commission to support his policy and practice of removing, or causing
to be removed, Aboriginal children from their natural parents.[31] The practice of removing Aboriginal children, which began
in 1909, increased such that by 1914, 54 children had been committed to the
care of the State Children’s Department.[32] |
Aborigines (Half-Caste Children) Bill 1921
|
On 16 November 1921, the Commissioner of Public Works
introduced into Parliament a Bill: [33] |
for an Act to make better provision for committing
half-caste aboriginal children to institutions under the control of the State
Children’s Council, to amend the Aborigines Act, 1911, and for other purposes.
|
352 |
The Bill was designed to address concerns about Aboriginal
children on the Point Pearce and Point McLeay Mission Stations. In
particular, the Bill was intended to facilitate a placement of these children
with the State Children’s Department without the need for the preserved
cumbersome and public judicial processes prescribed by the State Children
Act (the precursor to the Maintenance Act 1926-1937). The
Bill allowed for the transfer of control of an Aboriginal child from the
guardianship of the Chief Protector to the State Children’s Council without
the need for a court order. Under the proposed arrangement, the signing of a
form by the Chief Protector and by the State Children’s Council would be all
that would be required to effect the transfer of guardianship over the child.
These proposed provisions were the genesis of sections 38 to 40 of the Aborigines
Act 1934-1939. |
|
353 |
During the second reading speech, the Commissioner of
Public Works described the system for deeming a child neglected under the State
Children Act, whereby a child had to appear before court and be declared
a neglected child, as "needlessly cumbersome and unnecessarily
public".[34] Essentially, "[t]he Bill allowed for the simple,
quick removal of Aboriginal children from their parents".[35] The Bill sought to introduce a "transfer of
control" process summarised in the second reading speech as follows:[36] |
For this method the Bill proposes to substitute a simple
form of agreement called a "Transfer of Control," signed by the Chief
Protector of Aborigines (who is the legal guardian of all half-caste children)
and the State Children’s Council, by which the control of the child is
transferred from one to the other until he attains the age of 18 years. ... The
Chief Protector drops out, and whilst the child is under the control of the
council he ceases to be his legal guardian. Upon the child attaining 18 years
of age he automatically passes from the control of the council and, if he is a
half-caste child, with a white man for his father, again comes under the
guardianship of the Chief Protector. ... The Bill has been considered by the
Chief Protector of Aborigines and by the President of the State Children’s
Department, and is approved by both authorities. This measure practically gives
us power to take children at any age.
|
354 |
The Bill received significant opposition specifically
because it provided for children of any age to be taken from their parents.
As was stated during the debate on the second reading:[37] |
We should not enact legislation which will give the
Government arbitrary power to take children away from their parents and make
them State children. These people have the same parental feelings and the same
love for their children as have white people. We must take that into
consideration.
After extensive debate the Bill lapsed through lack of support.
|
355 |
The fact that there was specific concern expressed in
Parliament about the power contained in the 1921 Bill to remove children from
their parents, suggests that it was not intended at that time that the
Protector would have the power to remove children under section 10 of the Aborigines
Act 1911. |
Aborigines (Training of Children) Act 1923
|
The amendments to the Aborigines Act 1911 that the
Government had proposed to make with the Aborigines (Half-Caste Children)
Bill were substantially enacted two years later with the passing of the Aborigines
(Training of Children) Act 1923. The Act’s stated purpose was to: |
[M]ake Better Provisions for the Care, Control, and Training
of Aboriginal Children, for placing Aboriginal Children under the Control of
the State Children’s Council, to amend the Aborigines Act, 1911, and for other
purposes.
The Aborigines (Training of Children) Act applied to all illegitimate
Aboriginal children who, irrespective of their age, were, in the opinion of the
Chief Protector and State Children’s Council, neglected.[38]
|
357 |
Section 6 of the Aborigines (Training of Children) Act
provided for the transfer of control of certain Aboriginal children from the
Chief Protector to the State Children’s Council: |
(1) The Chief Protector may, with the approval of the State Children’s
Council constituted under the State Children Act, 1895, commit any aboriginal
child to any institution within the meaning of the State Children Act, 1895,
under the control of the said Council, to be there detained or otherwise dealt
with under the said Act until such child attains the age of eighteen years.
(2) Such approval and commitment shall be in writing in the form of the
Transfer of Control contained in the Schedule to this Act, or in a form to the
like effect.
Pursuant to section 7, once the transfer of control in respect of an
Aboriginal child had been executed, the child became a State child within the
meaning of the State Children Act. Sections 6-8 are precursor provisions
to sections 38-40 of the Aborigines Act 1934-1939.
|
358 |
During the second reading speech the Treasurer, said:[39] |
The dictates of humanity forbid the State to deprive mothers
of their infant children in cases where the mothers desire to keep them, even
though it were ultimately for the child’s benefit. The Bill has been designed
with these difficulties in view. It embodies a scheme which while making
reasonable provision for the training of the children, can hardly be said to be
unduly harsh to the mothers of the children concerned.
|
359 |
The Treasurer went on to outline the provisions that were
intended to reduce the severity of the Aborigines (Training of Children)
Act in comparison with the 1921 Bill:[40] |
No child, if legitimate, may be transferred from the control
of the Protector until he or she has turned 14 years of age ... Thus the
aboriginal or half-caste parents would have their children with them throughout
infancy and early youth ... An illegitimate child may be transferred at any
time after the first nine months of its life, but there is no obligation to
transfer such a child, and the provision in the Bill is designed only to be
used in cases where an illegitimate child is ill-cared for by its parents.
Inspectresses from the State Children’s Department visit the aboriginal
stations regularly and could ascertain what illegitimate infants could properly
be removed.
|
360 |
The second reading speech for this Act, considered in
light of the grave concerns expressed during the debate about the 1921 Bill,
supports the conclusion that Parliament did not intend the Chief Protector to
have power to remove children from their parents outside the provisions of
the Aborigines (Training of Children) Act. This view is
supported by the Treasurer’s introductory remarks that "the dictates of
humanity forbid the State to deprive mothers of their infant children in
cases where the mothers desire to keep them" and that "the Bill has
been designed with these difficulties in view". Parliament’s intention
was that the Chief Protector could only remove a child from its parents by
following the procedure set out in the Aborigines (Training of Children)
Act – the second reading speech indicates that this was specifically
designed to be fair and appropriate for that purpose – or in exercising its
powers under sections 6 and 7 of that Act. |
Maintenance Act 1926-1937
|
The Maintenance Act 1926 obtained Royal assent on
16 December 1926. That Act was consolidated to form the Maintenance Act
1926-1937, however no substantive changes were made to any of the
sections pertinent to these proceedings. As earlier observed, the plaintiff
was placed in the care of the Davies on 6 January 1958. At that time the Maintenance
Act 1926-1937 was in force. |
|
|
362 |
The Maintenance Act 1926-1937 consolidated and
amended laws relating to a number of matters including the protection of
neglected and destitute children. The stated purpose of the Maintenance
Act 1926-1937 was to: |
[C]onsolidate and amend the law relating to State children,
destitute persons, the summary protection of married women, and other matters,
and to make provision for granting assistance to mothers for the maintenance of
their children, and for other purposes.
|
363 |
Section 5 attributed the following definitions to
frequently used terms within the Act: |
"child" means any boy or girl under the age of
eighteen years; and, in the absence of positive evidence as to age, means any
boy or girl apparently under the age of eighteen years;
...
"destitute child" means any child who has no sufficient means of
subsistence apparent to the court, and whose near relatives are, in the opinion
of the court, in indigent circumstances and unable to support such child, or
are dead, or unknown, or cannot be found, or are out of this jurisdiction, or
in the custody of the law:
"foster-mother" means a female having the care, charge, or custody of
a child under seven years of age, to adopt, rear, nurse, or otherwise maintain
such child apart from his or her parent, and not being a near relative of such
child:
"foster-parent" means any person to or with whom a State child is
apprenticed or placed out under this Act, or any Act hereby repealed, and
includes the assignee of such person:
...
"neglected child" means any child who –
(a) habitually begs or receives alms, whether under the pretext of sale or
otherwise, or frequents any public place for the purpose of so begging or
receiving alms; or
(b) wanders about, or frequents any public place, or sleeps in the open air,
and does not satisfy a court that he or she has a home or settled place of
abode; or
(c) resides in any reputed brothel, or associates or dwells with any person
known to the police or reputed to be a prostitute, whether such person is the
mother of such child or not; or
(d) associates or dwells with any person who has been convicted of vagrancy,
or is known to the police as of bad repute, or who has been or is reputed to be
a thief or habitual drunkard;
(e) being under the age or apparent age of ten years, sells or offers for
sale, between the hours of eight o’clock in the evening and five in the
morning, in any public place or in any place other than the child’s home, any
matches, newspapers, or any other article whatsoever; or
(f) is under the guardianship of any person whom a court considers unfit to
have such guardianship; or
(g) is illegitimate, and whose mother is dead or is unable to maintain or
take charge of such child;
(h) is found in any brothel or house of ill fame; or
(i) being under the age of fourteen years, and not being on any lawful
business errand, habitually frequents public streets or places between the
hours of eight o’clock in the evening and five o’clock in the morning; or
(j) being under the age of sixteen years, and not being the child or ward of
the licensee, is, on more than one occasion and without lawful excuse, found in
the bar, barroom, or taproom of any public house or wine saloon, or is on more
than one occasion served with intoxicating liquor in or upon the premises of
such public house or wine saloon:
"private institution" means an institution or
establishment for the detention, maintenance, training, education, and
employment of destitute or neglected children, established and maintained by
private persons:
...
"state child" means any child who has been committed to an
institution, or has been placed in the custody or under control of the board,
pursuant to this Act, or any Act hereby repealed, for a period which has not
yet expired.
|
364 |
Part II of the Maintenance Act 1926-1937
established the CWPRB. The CWPRB consisted of the chairman - a fit and proper
person appointed by the Governor,[41] and eight other members appointed by the Governor, at
least four of whom were to be women. |
|
365 |
The general powers and functions of the CWPRB were set out
in section 16(1): |
I. The care, management, and control of the persons and property of all
State children; and the supervision of all children nursed by foster-mothers:
II. Power to apprentice and place out State children:
III. Power to licence fit and proper persons to be foster-mothers to
children under the age of seven years:
IV. The supervision of all illegitimate children under the age of seven
years, and the homes of such children:
V. Power, subject to the approval of the Governor, to appoint institutions
for the reception, detention, education, employment, training or reformation of
State children:
VI. The control, supervision, and management of all institutions as hereinafter
provided:
VII. The licensing, control, and supervision of lying-in
homes:
VIII. The control, supervision, and management of asylums, and the officers
and servants employed therein, and of all visiting officers:
IX. The ordering of the persons and property of destitute persons and
children so long as they shall be inmates of any asylum:
X. Power, subject to the approval of the Chief Secretary, to appoint
superintendents, matrons, psychologists, inspectors, teachers, officers, and
servants:
XI. The management, custody, and control of all property, real or personal,
vested in or belonging to the board:
XII. The administration, subject to the regulations of the public service,
of all moneys voted by Parliament or otherwise acquired by the board, for the
purposes of this Act.
|
366 |
Section 16(2) provided the chairman of the CWPRB with
powers and functions in the case of emergency. That sub-section provided: |
In cases of emergency requiring immediate action, and in all
cases where it is impracticable, or would be likely to cause delay calculated
to defeat the proper attainment of any object contemplated by the Act, to
obtain the authority of the board before acting, the chairman may, in the name
and on behalf of the board, do any act or exercise any power which the board is
authorised to do or exercise; but all such acts, or the exercise of any such
powers and authorities, shall be reported by the chairman to the board at its
next subsequent meeting, and shall be subject to the ratification of the board,
but until such meeting shall for all purposes be deemed to be valid and
effectual.
|
367 |
Section 28 provided for maintenance payments from the
CWPRB in the following circumstances: |
(1) In any case where –
(a) the mother or any female relative of any child has the immediate custody
and control of the child; and
(b) the child is without sufficient means of support; and
(c) the mother or female relative aforesaid is unable to provide, and is unable
by any available legal proceedings to obtain sufficient means of support for
the child,
the mother or female relative aforesaid may, in the prescribed form, make an
application in writing to the board that a weekly sum be paid to her for or
towards the maintenance of the child.
Numerous provisions addressed the topic of maintenance obligations and
imposed enforceable obligations on the father of a child.
|
368 |
Section 50 of the Maintenance Act 1926-1937
addressed the obligations of the parents of a child to provide proper
maintenance. That section is in the following terms: |
If the father or mother of any child, whether legitimate or
illegitimate, or any person who has been adjudged to be the father of an
illegitimate child, fails or neglects to provide reasonable and proper
maintenance for such child, he or she shall be guilty of an offence against
this Act, notwithstanding that at the time of such failure or neglect such
father, mother, or person was out of the State, and shall be liable to a penalty
not exceeding fifty pounds, or to be imprisoned for any term not exceeding six
months.
|
369 |
Part IV of the Maintenance Act 1926-1937
addressed destitute or neglected children. Section 100 authorised the laying
of information or complaint alleging a child to be destitute or neglected.
Section 101 provided that any constable may, without a warrant, apprehend any
child suspected to be a destitute or neglected child and take them before a
court. Section 102 provided that where a court was satisfied that the child
was destitute or neglected, it could: |
(a) order such child to be forthwith sent to an institution, to be there
detained or otherwise dealt with under this Act until such child attains the
age of eighteen years; or
(b) by an order in writing place such child in the custody and under the
control of the board until such child attains the age of eighteen years.
|
370 |
Section 106(1) of the Maintenance Act 1926-1937
provided: |
Whenever any complaint is made charging a child with being a
neglected child on the ground that he is under unfit guardianship, the guardian
of such child shall be notified in writing by the complainant of the time when
and place where such complaint is to be heard.
|
371 |
Section 110 provided for entry into a house or premises
for the purposes of the arrest of children neglected or destitute. That
section provided: |
(1) Any member of the police force, any officer of the board specially
authorised in writing by the chairman, or any member of the board, may enter
into or upon any house, building, or other premises for the purpose of
arresting, and may, there or elsewhere, arrest any child who is reasonably
supposed to be guilty of any offence, or who is destitute, neglected, or uncontrolled.
(2) Any such child so arrested shall, as soon as conveniently may be, be
brought before a court of summary jurisdiction, so that the matter alleged
against him may be heard and determined.
|
372 |
These provisions provided for the care of neglected and
destitute children. The legislature intended that the welfare of neglected or
destitute children would be reviewed by the courts. The scheme allowed a
guardian to be heard. |
|
373 |
Section 167 of the Maintenance Act 1926-1937 stipulated
that any person acting as a foster mother must be licensed by the CWPRB for
that purpose. Section 168 provided the CWPRB with the power to license foster
mothers: |
The board may, on payment of a fee of one shilling for each
licence, grant an annual licence to any fit and proper person to be a
foster-mother to children under the age of seven years, and may by any such
licence fix the number of children authorised to be kept by the foster-mother
therein named, and may at its discretion revoke any such licence.
|
374 |
It is to be observed that the Maintenance Act 1926-1937
applied to all children in the State under the age of 18 years including
Aboriginal children. Illegitimate children were afforded special protection.
Section 189 provided a power of entry and inspection in respect of the homes
of illegitimate children. That section was in the following terms: |
(1) The home or place of residence, and every part thereof, of any
illegitimate child (not being an illegitimate child in respect of whom an order
of adoption has been made pursuant to the Adoption of Children Act, 1925),
under the age of seven years shall at all times be open to entry and inspection
by any member or officer of the board: Provided that where the board is
satisfied that an illegitimate child is being properly cared for in its home or
residence, such home or residence shall not be open to entry and inspection
under this section.
(2) Any person who refuses to allow such entry or inspection to be made, or
hinders or resists any such member or officer in the making of, or attempting
to make, such entry or inspection, or who refuses or neglects to produce such
child to any such member or officer for inspection by him, upon such production
being demanded by such member or officer, shall be guilty of an offence against
this Act and shall be liable to a penalty not exceeding twenty pounds.
(3) This section shall not apply to any school or hospital.
|
375 |
Section 194 of the Maintenance Act 1926-1937
provided: |
(1) No action shall be brought against the board or any governing authority
of an institution or any person for anything done in pursuance of this Act,
unless –
(a) such action is commenced within six months next after the act or default
complained of; and
(b) notice in writing of such action, and the cause thereof, has been given
to the defendant one month at least before the commencement of the action.
(2) The defendant in any such action may plead the general issue, and give
this Act and the special matter in evidence at any trial to be had thereupon.
(3) The plaintiff shall not recover in such action if tender of sufficient
amends is made before action is brought, or if, after action brought, the
defendant pays into court sufficient amends; but in such last-mentioned case
the plaintiff shall recover his cost of suit up to the time of the payment into
court.
|
376 |
The Maintenance Act 1926-1937 was substantially
amended in 1965 and renamed the Social Welfare Act 1926-1965. |
Children’s Protection Act 1936
|
The Children’s Protection Act provided particular
protection for children. A child was defined to be a child apparently under
the age of 16 years and included all children whether Aboriginal or not. |
|
|
378 |
Section 5 of the Children’s Protection Act created
offences with respect to the ill-treatment of children and was in the
following terms: |
Any near relative, guardian, or other person having the
care, custody, control, or charge of a child, who, without lawful excuse –
(a) neglects to provide all such food, clothing, and lodging for the child
as to the court seems reasonably sufficient:
(b) ill-treats, neglects, abandons, or exposes the child, or causes the
child to be ill-treated, neglected, abandoned, or exposed, in a manner which
the court deems likely to subject the child to unnecessary risk, danger,
injury, or suffering,
shall be guilty of an offence against this Act and liable to
imprisonment for any period not exceeding one year, and to a fine not exceeding
one hundred pounds.
A "near relative" was defined as:
(a) a legitimate child – any parent, grandparent,
step-father, or stepmother of the child:
(b) an illegitimate child – the mother, husband of the mother, and the
father of the child:
A parent was defined as:
[T]he person who has the actual custody of the child,
whether as father, mother, guardian, or otherwise howsoever, or with whom the
child resides:
|
379 |
Section 6 of the Children’s Protection Act dealt
with the powers of the court to make orders in cases where there was
reasonable cause for suspecting that a child was being ill-treated,
neglected, abandoned or exposed in a manner likely to subject a child to
unnecessary danger, injury or suffering. In those circumstances the court
could authorise a police constable or an officer of the CWPRB to search for
and remove a child to an institution to be detained until the child could be
brought before the court. |
|
380 |
Both the Children’s Protection Act and the Maintenance
Act 1926-1937 disclosed a legislative intention to expeditiously protect
children who were neglected or abandoned or reasonably suspected to be so.
Notwithstanding that both these statutes provided for children at large, the Aborigines
Act 1934-1939, discussed below, also provided further protection
in the case of Aboriginal children. Combined, the three statutes comprised
the statutory scheme relevant to Aboriginal children in force at the time of
the plaintiff’s removal, placement and return. |
Aborigines (Consolidation) Act 1934
|
The Aborigines (Consolidation) Act 1934 (SA),
entitled, "An act to consolidate certain Acts relating to the protection
and control of the aboriginal and half-caste inhabitants of South
Australia", came into operation on 1 April 1937. It was an amalgam of the
Aborigines Act 1911 and the Aborigines (Training of Children) Act
and repealed both Acts. The Aborigines (Consolidation) Act made no
substantive changes to the law, however some alterations were made to reflect
the introduction of the Maintenance Act 1926-1937. |
|
382 |
In 1936, the Government introduced a Bill to amend the Aborigines
Act 1934. The primary purpose of the Bill was to establish the APB to
replace the Advisory Council of Aborigines. After extensive debate, the Bill
lapsed but was reintroduced, with some slight alterations, into Parliament in
August 1939 and was eventually enacted in November 1939. |
|
383 |
One significant amendment made to the Aborigines Act
1934 by the passing of the amending legislation was to broaden the
definition of "Aborigine" so as to include all descendants of
Aboriginal people, not just "full blood or half-caste" Aborigines
as had previously fallen within the scope of the legislation. |
|
384 |
The introduction of the amendments by the Aborigines
Amendment Act 1939 had the effect of replacing the Chief Protector of
Aborigines with the APB as the body "charged with the duty of
controlling and promoting the welfare of aborigines".[42] During the second reading speech delivered on 10 August
1939, it was made clear that the office of Chief Protector would be abolished
and that any powers exercised by that office, as well as the many powers
exercised by the Minister, would be transferred to the APB.[43] |
|
385 |
Section 4a of the Aborigines Act 1934-1939 provided: |
(1) There is hereby constituted, for the purposes of this Act, a board to be
called the "Aborigines Protection Board".
(2) The board shall be a body corporate, and by the name aforesaid shall
have perpetual succession and a common seal.
|
386 |
Section 4c of the Aborigines Act provided that the
APB was to consist of the Minister and six other members appointed by the
Governor. Section 4i made the Minister the chairman of the APB. Section 4j
stipulated that the chairman was to preside over meetings of the APB and that
the person presiding over meetings was to have a deliberative and casting
vote. Pursuant to section 4k, the APB was required to report annually to the
Governor and the reports were to be tabled before Parliament. The APB was
government funded.[44] |
|
387 |
The duties of the APB were set out in section 7 of the Aborigines
Act 1934-1939 in the following terms: |
It shall be the duty of the board –
(a) to apportion, distribute, and apply, as seems most fit, the moneys at
the disposal of the board:
(b) in its discretion, to apply part of the moneys at its disposal in the
purchase of stock and implements to be loaned to aborigines to whom land has
been allotted under section 18, and may supply the same accordingly either
without payment or on such terms as are approved by the board, and no person
shall, except with the approval of the board, acquire any title to any goods or
chattels so loaned as aforesaid:
(c) to distribute blankets, clothing, provisions and other relief or
assistance to the aborigines:
(d) to provide, as far as practicable, for the supply of food, medical
attendance, medicines, and shelter for the sick, aged, and infirm aborigines:
(e) to provide, when possible, for the custody, maintenance and education of
the children of aborigines:
(f) to manage and regulate the use of all reserves for aborigines:
(g) to exercise a general supervision and care over all matters affecting
the welfare of the aborigines, and to protect them against injustice,
imposition, and fraud.
|
388 |
In addition, and importantly for present purposes, section
10 of the Aborigines Act 1934-1939 made the APB the legal guardian of
every Aboriginal child. That section was in the following terms: |
(1) The board shall be the legal guardian of every aboriginal child,
notwithstanding that any such child has a parent or other relative living,
until such child attains the age of twenty-one years, except whilst such child
is a State child within the meaning of the Maintenance Act, 1926.
(2) Every protector shall, within his district, be the local guardian of
every such child within his district.
(3) Such local guardian shall have and exercise the powers and duties
prescribed.
|
389 |
One of the powers maintained by the Minister after the
amendments introducing the APB had taken effect, was the power to appoint
persons as "protectors of Aborigines". Section 8(1) provided: |
Upon the recommendation of the board, the Minister may from
time to time appoint such persons as he deems proper to be protectors of
aborigines, who shall, within the districts respectively assigned to them, have
and exercise the powers and duties given or imposed by this Act.
|
390 |
The significance of this power vested in the Minister was
the subject of debate in Parliament:[45] |
What is the function of the board if it is not to make these
appointments, which are the very substance of the administration of any Act for
the control and promotion of the interests of the aborigines? If not given the
power of appointment, the board might at least be given the right to peruse
applications for such appointments and to make recommendations to the Minister.
If the board is to relieve the Minister and the Chief Protector of their
numerous duties under the present Act, surely it should have some voice in the
selection of its chief executive officer.
|
391 |
Under the Aborigines Act 1934-1939, the provisions
relating to the training and control of Aboriginal children remained largely
unchanged from its predecessor. Section 38(1) of the Act provided: |
The board may, with the approval of the [CWPRB] constituted
under the Maintenance Act, 1926, commit any aboriginal child to any
institution within the meaning of the Maintenance Act, 1926, under the
control of the [CWPRB], to be there detained or otherwise dealt with under the
said Act until such child attains the age of eighteen years.
Pursuant to section 39, once control of a child had transferred from the APB
to the CWPRB, the child became a State child within the meaning of the Maintenance
Act. Section 40 provided:
Unless the board otherwise directs with respect to any
particular aboriginal child, the provisions of sections 37, 38, and 39 shall
apply only to –
...
(b) illegitimate aboriginal children who, irrespective of their age are, in
the opinion of the board and the [CWPRB], neglected or otherwise proper persons
to be dealt with under this Act.
|
392 |
For present purposes it is important to record that these
sections contemplated that the APB and the CWPRB would act together in the
interests of the welfare of an Aboriginal child. It is to be observed that
those sections provide a means by which a neglected child can be dealt with,
with the agreement of both boards. It is to be observed that section 40(b) stipulated
that dealing with an illegitimate Aboriginal child could only take place when
the CWPRB, together with the APB, had formed the opinion that the child of
any age was neglected. |
|
393 |
The APB remained responsible for the care, control and
protection of all Aboriginal people and was the legal guardian of all
Aboriginal children until legislative change occurred in 1962. |
|
394 |
In 1962, the Aboriginal Affairs Act was enacted. It
came into operation on 28 February 1963. That Act repealed and replaced the Aborigines
Act 1934-1939. The APB was replaced with the Aboriginal Affairs Board,
which had fewer powers than its predecessor. Under the provisions of section
16(1), the Aborigines Department was renamed the Department of Aboriginal
Affairs. |
|
395 |
Under the Aboriginal Affairs Act, children could
only be fostered by order of a court or by consent of the parents, and for so
long as the order or consent remained in force. According to a South
Australian Government publication:[46] |
For some years the [CWD] had made it clear to the [APB] that
it did not approve of the removal of Aboriginal children under Section 38(1) of
the Aborigines Act and urged it to seek legislative powers:
to care for, protect, maintain and educate aboriginal children, as is at
present vested in the [CWPRB] in regard to neglected white children.
The 1962 Act virtually ended the practice of removing
Aboriginal children without legal action under the Maintenance Act or Social
Welfare Act. There are only a handful of actions to remove Aboriginal children
under the Aborigines Act recorded in annual reports of the Department of Social
Welfare, the last in 1970.
|
396 |
The enactment of the Aboriginal Affairs Act also
signified a shift in policy concerning Aboriginal people from assimilation to
integration. The aim of integration was apparently to work toward having
Aboriginal people join the white community on equal terms, yet retain the
right to maintain their cultural identity. |
|
397 |
A South Australian Government publication noted that from
1962 some of the attitudes and practices of the Department of Aboriginal
Affairs began to change:[47] |
For example, the Department argued against placing
Aboriginal children with white foster families because of the conflict in
values and personal standards, difficulties of access by natural parents and
problems associated with over-possessive foster parents. It believed that
hostels, cottage homes and institutions were preferable for the development of
a positive Aboriginal identity, although it did little to facilitate frequent
and significant child/parent contact which is a major pre-requisite for healthy
personality development. Supporting Aboriginal families and encouraging the
care of children at risk within the Aboriginal community were not envisaged,
any more than they were for non-Aboriginal children.
|
398 |
During the second reading speech delivered to the House of
Assembly on 16 August 1962, the Minister of Works informed Parliament that
the Bill had been introduced because although there had been much progress
made in the lives and living standards of Aboriginal people since the
enactment of the earlier Aborigines Act 1934-1939, there remained a
need to provide special facilities and assistance toward the continuing
development of the State’s indigenous population. The Minister said of the
Bill:[48] |
The present Bill abolishes all restrictions and restraints
on Aboriginals as citizens, except for some primitive full-blood people in
certain areas to be defined. It provides the machinery for rendering special
assistance to Aboriginals during their developmental years and to promote their
assimilation. It places all Aboriginals under the same legal provisions as
other South Australian citizens, with the same opportunities and the same
responsibilities.
In relation to the provisions with respect to children, the Minister said:[49]
The section of the [Aborigines Act 1934-1939] whereby
the board is appointed the legal guardian of all Aboriginal children up to the
age of 21 years has been omitted and a new concept in relation to the care and
maintenance of Aboriginal children envisaged. By co-operation and liaison with
the [CWD], all cases of neglected, uncontrolled or destitute children whose
parents are Aborigines or persons of Aboriginal blood, will be dealt with in
the same manner as are all other children in the State – that is, through the
normal processes of law as provided in the Maintenance Act.
|
399 |
Section 4 of the Aboriginal Affairs Act defined
Aboriginal for the purposes of the Act as: |
(1) Every person who is of the full blood descended from the original
inhabitants of Australia, other than a person whose name is removed from the
Register of Aborigines in pursuance of section 17 of this Act, shall be deemed
to be an Aboriginal within the meaning of this Act or any other Act.
(2) Every person who, being of less than full blood, is descended from the
original inhabitants of Australia, and every person whose name is removed from
the Register of Aborigines in pursuance of section 17 of this Act and his
direct descendants, shall be deemed to be a person of Aboriginal blood within
the meaning of this Act.
|
400 |
The Aboriginal Affairs Board was established pursuant to
section 5 of the Aboriginal Affairs Act. The board consisted of a
chairman appointed by the Governor (no longer the Minister as was the case
for the APB under the Aborigines Act 1934-1939) and six other members
also appointed by the Governor. The primary function of the board was to
serve in an advisory capacity to the Minister. Section 13 provided: |
The board shall be charged with the duty of advising the
Minister on the operation of this Act and on measures for promoting the welfare
of Aborigines and persons of Aboriginal blood.
|
401 |
The duties and functions that had previously been
performed by the APB now, pursuant to section 15, fell to the Minister to
perform. That section provided: |
It shall be the duty of the Minister –
(a) to apportion, distribute, and apply as seems most fit, the moneys at the
disposal of the Minister;
(b) to manage and regulate the use of all reserves, but not so as to
alienate any portion of such reserves from use by Aborigines or persons of
Aboriginal blood;
(c) to exercise general supervision and care over all matters affecting the
welfare of Aborigines and persons of Aboriginal blood;
(d) in his absolute discretion to distribute blankets, clothing, provisions
and other relief or assistance to Aborigines and persons of Aboriginal blood;
(e) in his absolute discretion to provide, in cases of need, when possible,
for the maintenance and education of the children of Aborigines and persons of
Aboriginal blood;
(f) in his absolute discretion to apply part of the moneys at its disposal
for the provision of housing and for the purchase of stock and implements to be
lent to Aborigines or persons of Aboriginal blood to whom land has been
allotted under section 21, and to apply the same accordingly either without
payment or on such terms as are approved by the Minister, and no person shall,
except with the approval of the Minister, acquire any title to any goods or
chattels so lent as aforesaid;
(g) to promote the social, economic and political development of Aborigines
and persons of Aboriginal blood until their integration into the general
community;
(h) to collect information concerning the regional distribution of
Aborigines in South Australia and to promote research into the problems of
Aborigines.
|
402 |
For present purposes, the most significant feature of the Aboriginal
Affairs Act was the absence of any provision regarding legal guardianship
of Aboriginal children. |
Social Welfare Act 1926-1965
|
In December 1965, the Maintenance Act 1926-1963 was
amended by the Maintenance Act Amendment Act 1965 (SA) and renamed the
Social Welfare Act 1926-1965. |
|
|
404 |
Pursuant to section 8 of the Social Welfare Act,
the CWPRB was abolished and all property, rights, powers, functions, duties
and liabilities of the CWPRB were transferred to and vested in the Minister
of Social Welfare. Pursuant to section 6 of the Social Welfare Act,
the Minister of Social Welfare was constituted as a body corporate. |
|
405 |
Section 10 of the Social Welfare Act created the
Department of Social Welfare. It provided: |
For the purposes of this Act, there shall be –
(a) a department under the Minister to be called the Department of Social
Welfare which shall be established and declared pursuant to the Public Service
Act, 1936-1958, as amended;
(b) a Director of Social Welfare;
(c) a Deputy Director of Social Welfare; and
(d) such other offices and positions in the department as are necessary.
|
406 |
Section 13 of the Social Welfare Act made the
Minister of Social Welfare the legal guardian of all State children. The
further general powers, functions and capacities of the Minister were set out
in section 14 of the Social Welfare Act. |
|
407 |
Pursuant to the Maintenance Act Amendment Act,
sections 167 and 168 of the Maintenance Act 1926-1963 were repealed
and replaced with sections 167 and 168 of the Social Welfare Act, which
provided: |
167 A person shall not, for gain or reward, be or act as foster-parent to
any child under the age of twelve years who is not living with his parents or
guardian unless that person –
(a) is licensed by the Director for that purpose; or
(b) is a near relative or the spouse of a near relative of the child.
Penalty: Fifty pounds.
168(1) The Director may, in accordance with the regulations, grant an annual
licence to any fit and proper person to be a foster-parent to children under
the age of twelve years, and may by any such licence impose conditions or limit
the number of children authorized to be kept by the foster-parent named therein
to any number not exceeding five, and may at his discretion revoke any such
licence.
(2) A licence granted by the [CWPRB] to any person to be a foster-mother to
children and in force immediately before the commencement of the Maintenance
Act Amendment Act, 1965, shall, unless earlier revoked by the Director,
continue in force until its expiry and, for the purposes of this Act, while it
is so in force, shall be deemed to be a licence granted under this section.
|
408 |
Other than the changes necessary to reflect the abolition
of the CWPRB and the transfer of its duties and responsibilities to the
Minister of Social Welfare, section 194 of the Maintenance Act 1926-1963,
which dealt with the time limitation of an action being brought, remained
unchanged. |
Community Welfare Act 1972 (SA)
|
409 |
In 1972, the Community Welfare Act 1972 was
enacted. That Act repealed and replaced the Social Welfare Act 1926-1971,
the Aboriginal Affairs Act 1962-1968 and the Children’s Protection
Act 1936-1969. |
|
410 |
Under the Community Welfare Act the Minister of
Community Welfare was the successor to the Minister administering the
repealed Social Welfare Act and the Aboriginal Affairs Act. The
Department of Aboriginal Affairs and the Department of Social Welfare was
replaced by the Department for Community Welfare.[50] |
|
411 |
Section 5 relevantly provided: |
(1) The Minister is the successor to the minister administering the repealed
Social Welfare Act and the repealed Aboriginal Affairs Act, and any rights that
were at law or in equity vested in, or enforceable by or against, that Minister
immediately before the commencement of this Act under, or as a result of action
taken under, the repealed Social Welfare Act or the repealed Aboriginal Affairs
Act shall be vested in, or enforceable by or against, the Minister.
...
(5) Any application made to the Minister administer the repealed Social
Welfare Act, and the repealed Aboriginal Affairs Act, the Department
constituted under the repealed Social Welfare Act or any officer of that
Department, and not finally disposed of or at the commencement of this Act,
shall be deemed to be an application to the Minister of Community Welfare, the
Department for Community Welfare, or any officer of that Department, as the
case may require, and may be dealt with and disposed of in accordance with the
provisions of this Act.
(6) A person who was, immediately before the commencement of this Act, a
State child, within the meaning of the repealed Social Welfare Act shall be
deemed to be a child under the care and control of the Minister in all respects
as if the decision, order or adjudication by virtue of which the child became a
State child were a decision, order or adjudication placing the child under the
care and control of the Minister, and any such child shall be dealt with
accordingly pursuant to the provisions of the Act.
...
(13) Except as otherwise provided in this Act, any officer of the Department
constituted under the repealed Social Welfare Act, or the Department
constituted under the repealed Aboriginal Affairs Act, who was in office
immediately before the commencement of this Act, shall, subject to this Act,
and the Public Service Act, 1967, as amended, be deemed to have been appointed
to a corresponding office in the Department for Community Welfare established
under this Act.
|
412 |
Section 7 provided the objectives of the Minister of
Community Welfare and the Department for Community Welfare: |
Without limiting in any way the operation of this Act, it is
declared that the objectives of the Minister and the Department, in the
administration of this Act, include the following-
(a) to promote the well-being of the community by assisting individuals,
families and sections of the community to overcome social problems with which
they are confronted and to promote the effective use of human resources and the
full realization of human potentialities;
(b) to promote the welfare of the family as the basis of community welfare,
to reduce the incidence of disruption of family relationships and to mitigate
the effects of such disruption where it occurs;
(c) to assist voluntary agencies engaged in the provision of services
designed to promote the well-being of the community;
(d) to collaborate with other departments of Government whose activities
directly affect the health or well-being of children and young persons;
(f) to collaborate with agencies engaged in the provision of assistance to
those in need or distress and to promote rationalization and co-ordination of
the assistance provided for those persons;
(g) to promote research into problems of community welfare and to promote
education and training in matters of community welfare;
(h) to promote generally an interest in community welfare.
|
413 |
The Community Welfare Act was in place when the
plaintiff was aged 15 to 18 years of age. |
|
414 |
The legislative scheme applicable at the time of the
plaintiff’s removal, placement and return was largely comprised of provisions
of the Aborigines Act 1934-1939 and the Maintenance Act 1926-1937.
Those provisions operated and were intended to be read together. |
|
415 |
As already observed, pursuant to section 10 of the Aborigines
Act 1934-1939 the APB was the legal guardian of all Aboriginal children.
In addition, section 7(e) of the Aborigines Act 1934-1939 provided
that the APB was duty bound "to provide, when possible, for the custody,
maintenance and education of the children of aborigines". |
|
416 |
As previously set out in section 38 of the Aborigines
Act 1934-1939 and section 102 of the Maintenance Act 1926-1937 were
the provisions that dealt with the power to remove children. Section 38
applied to illegitimate children who in the opinion of both the APB and CWPRB
were neglected.[51] Upon transfer, the child became a "State child"
and was under the control of the CWPRB.[52] Pursuant to section 38, a child could only be placed in an
institution. |
|
417 |
A child could also be removed from his or her parents
pursuant to sections 101-102 of the Maintenance Act 1926-1937, where
the child was found to be destitute or neglected. A complaint could be
brought by the CWPRB pursuant to section 178 of the Maintenance Act
1926-1937 or alternatively by the APB, in its capacity as legal guardian
of the Aboriginal child, pursuant to section 50 of the Justices Act 1921 (SA).[53] |
|
418 |
Where a complaint was issued charging that a child had
been neglected, section 106 of the Maintenance Act 1926-1937 provided
that the guardian of the child must be notified of the complaint and the time
and place at which the complaint would be heard. At the hearing, in
proceedings relating to destitute, neglected or uncontrolled children,
section 108 provided that the court might consider any reports from a police
officer or officer of the CWPRB, providing the person charged was made aware
of the contents of the report and had the opportunity to cross-examine. |
|
419 |
Once the court placed the child under the custody and
control of the CWPRB the child became a "State child" pursuant to
section 5 of the Maintenance Act 1926-1937. |
|
420 |
The CWPRB could place a child, who had been determined by
the court as destitute or neglected, in care pursuant to section 102(b) and
section 128(1) of the Maintenance Act 1926-1937. Section 102(b) was
referred to earlier in these reasons. Section 128(1) provided: |
The board may place out any State child for such period,
subject to this Act, as the board thinks fit-
(a) to reside and board with any relative of such child, or with a suitable
person approved by the board; or
(b) with any suitable person willing to receive such child for adoption or
service, and who, in the opinion of the board, is able to provide for and is
suitable to be entrusted with the care of such child; or
(c) to live and be maintained in any home or place suitable for the
upbringing of the child.
|
421 |
As earlier discussed, there were tensions between the two
boards on the issue of Aboriginal children in need. It would appear from the
evidence that the CWPRB was reluctant in its acceptance of its statutory role
in providing for destitute and neglected Aboriginal children, as the CWPRB
considered that the APB should be responsible for such children. However, the
APB did not consider that it had the statutory power to effectively deal with
neglected or destitute Aboriginal children. |
Policy and Practice of Removal
|
422 |
Evidence placed before the Court demonstrates, that the
South Australian Government, during the early to mid 20th century,
engaged in the policy and practice of removing Aboriginal children from their
families and communities with a view to absorbing the Aboriginal population
into the remainder of the community. |
|
423 |
Ministerial statements and the writings of senior public
servants and others were received into evidence on the same subject. Some of
these are cited in the discussion below. Materials were also received and
were useful to assist in providing an understanding, by way of background, of
the policies and practices employed by the government of the day. Among them,
a publication of the South Australian Government entitled "A Brief
History of the Laws, Policies and Practices in South Australia which led to
The Removal of Many Aboriginal Children" published in 1997, outlines the
practice and policy of removing Aboriginal children from their families. |
|
424 |
As earlier observed, on 19 December 1912, a Royal
Commission was appointed to enquire into and report on "the control,
organisation and management of the institutions in this State set aside for
the benefit of the aborigines, and generally upon the whole question of the
South Australian aborigines". In October 1913, the Commission’s
"progress report" was tabled in both Houses of the South Australian
Parliament. It made the following recommendation, inter alia: [54] |
That the work of saving destitute aboriginal children and
placing them under the care of State foster-mothers, as is being done in
conjunction with the State Children’s Department, be encouraged and extended;
and that the board have power to take control of any children at the age of 10
years whose environment is not conducive to their welfare ... and place them
where the Board deems best in the interests of the children.
|
425 |
The APB publicised a need for foster parents for
Aboriginal children. Examples of advertisements seeking foster homes for
Aboriginal children were tendered. One such advertisement, published on
Friday, 25 January 1957 in the Advertiser simply read: |
Foster home wanted for aboriginal boy, aged one year. Apply
... Advertiser.
|
426 |
Another example of such an advertisement, entitled
"Aboriginal Babies Need Homes" appeared in the Advertiser on
Sunday, 7 December 1957. It read: |
The [APB] wants foster homes for four aboriginal babies
recently brought to Adelaide from settlements and now in the Children’s
Hospital and McBride Maternity Hospital.
There are two boys and a girl aged six months and a six-week-old girl.
Aborigines Welfare Officer (Mrs M. A. Angas) said the board was also appealing
for private accommodation for ...aboriginal girls who would be enrolled at
technical and high schools in the metropolitan area if homes could be found for
them.
Six would come from Point Pearce and four from Point McLeay.
She said the Aborigines Association home at Parkside and the Advancement
League’s hostel at Millswood, where students were usually accommodated, would
be full next year.
|
427 |
There was also evidence that the APB, from time to time,
endeavoured to find foster homes for Aboriginal children through the church.
In a letter dated 25 May 1959 to Reverend Traeger, Chairman of the
Dispersed Natives Committee, the secretary of the APB wrote: |
It would also be appreciated if you could see your way clear
to inform Members of your Church on the policy of my Board in placing
aboriginal children with foster parents. Perhaps some of the Members of your
denomination would consider the fostering of some of our children, particularly
those of the Lutheran faith.
|
428 |
At the 1961 Native Welfare Conference, a meeting of
Commonwealth and State ministers, held on 26-27 January 1961, a policy of
assimilation was adopted as the policy for dealing with Aboriginal people in
Australia at that time. In a report of the proceedings and decisions of the
Native Welfare Conference, a discussion of the meaning of assimilation was
recorded in the following terms: |
The policy of assimilation means that all aborigines and
part aborigines are expected eventually to attain the same manner of living as
other Australians and to live as members of a single Australian community
enjoying the same rights and privileges, accepting the same responsibilities,
observing the same customs and influenced by the same beliefs, hopes and
loyalties as other Australians. Thus, any special measures taken for aborigines
and part aborigines are regarded as temporary measures not based on colour but intended
to meet their need for special care and assistance to protect them from any ill
effects of sudden change and to assist them to make the transition from one
stage to another in such a way as will be favourable to their future social,
economic and political advancement.
[emphasis added]
The commitment of the Commonwealth and the States to the policy of
assimilation was reaffirmed at the Native Welfare Conference of 1963.
|
429 |
In a minute from the secretary of the APB to the Minister
of Works dated 9 January 1961, the secretary described the policy of
assimilation in the following terms: |
In the State of South Australia, the [APB] defines
assimilation as "to grow or become similar, or to bring to a
likeness".
The Board accepts this definition which implies that to be assimilated the
aborigines must be similar to the balance of the community in culture,
religious beliefs, standards of living, personal cleanliness, hygiene, etc.
Perhaps this policy could best be referred to as "social
assimilation".
The Board is also aware of the possibility of biological assimilation, and know
that already numbers of aborigines have been absorbed in the community in this
manner but the total is insignificant when compared with the rapidly increasing
population. There has been a number of marriages of our women to New
Australians which may increase the possibility of more rapid assimilation by
this means.
It should be noted that aborigines can be and have been assimilated but it does
not mean that they are necessarily "accepted" by everyone. I feel
that much nonsense is spoken and written about the acceptance of aborigines.
Few of us are accepted in all stratas of society, nor would we want to be. What
is important for the aborigine is that he and his family are accepted by those
with whom they normally associate.
In some States it would appear that the term "assimilation" is
accepted to mean aborigines living in groups within a community in a manner
somewhat similar to other than aborigines but retaining some of their tribal
beliefs and customs. This definition is not acceptable to my Board as this to
us is a form of segregation. It is understood that when the policy of
assimilation was approved by all Governments in 1951, the policy of
assimilation was expected to result in a manner opposite and opposed to
segregation.
The secretary then continued to discuss the methods adopted by the APB for
advancing the policy of assimilation, which included the following with respect
to Aboriginal children:
In this State we are advancing the policy by educating the
children and taking care that they bathe and dress in clean clothes each day
while attending school where they are taught something of the need of thrift
and hygiene and are encouraged to improve their personal appearance. In this
manner, the children of primitive or near-primitive aborigines are being
prepared towards their ultimate assimilation.
...
In South Australia, all aboriginal children are accepted at State Education
Department Schools. In order to advance the policy of assimilation the Board
has made every endeavour to provide for the education of aboriginal children
and large sums of money are expended in maintaining children with foster
parents in private homes or in institutions mainly in the metropolitan area, in
order that the children may be brought up with a good Christian family in a
normal environment and have the opportunity of education which is often denied
them in their own homes. Special efforts are also being made to provide for the
secondary education of aboriginal children, such children being provided with
accommodation, clothing, school books, and in fact all the costs of their
education.
|
430 |
Welfare officers who worked for the Aborigines Department
and the Department of Aboriginal Affairs during the 1950s and 1960s, gave
evidence that confirmed the Department’s policy of assimilation during this
time. |
|
431 |
The existence of the policy of removing Aboriginal
children from their families and the detrimental long-term effects of that
policy on both those removed and on the wider Aboriginal community, is now
widely recognised in the community and has previously been the subject of
judicial recognition.[55] The question for determination in these proceedings is not
whether such a policy existed, nor whether such a policy was lawful. The
plaintiff’s claim, in effect, is that the State was bound to act in
accordance with the terms of the relevant legislative scheme and in
accordance with its fiduciary and other duties owed to the plaintiff and
that, in breach of those requirements, it failed to do so. |
|
432 |
The extent of the duties and powers of the APB as legal
guardian of Aboriginal children is in issue in these proceedings. |
|
433 |
The State contended that, by virtue of the APB’s role and
responsibility as the legal guardian of every Aboriginal child pursuant to
section 10 of the Aborigines Act 1934-1939, the APB was empowered
under the statutory scheme to take any steps considered necessary to execute
its duties with respect to Aboriginal children. The State submitted that this
included, where the circumstances required, the unrestricted power to remove
an Aboriginal child from his or her parents and place that child in foster
care. The State contended that in the circumstances of the present case the
APB had the power to remove the plaintiff from his parents and place him in
foster care. Therefore, in order to assess the validity of the State’s
actions toward the plaintiff, it is necessary to have an understanding of the
meaning of "legal guardian" within section 10. |
|
434 |
The State contended that the APB as legal guardian had the
power to deal with Aboriginal children so as to comply with its statutory
duties as provided for in section 7 of the Aborigines Act 1934-1939. |
|
435 |
The State submitted that the operation of sections 7 and
10 of the Aborigines Act 1934-1939 gave the APB the power to
determine who should have custody of an Aboriginal child, including the power
at large to remove that child from his or her natural parents if the board
thought it necessary. |
|
436 |
The State contended that it was reasonable to infer that
the Act intended to give the APB all the powers it needed to fulfil its
duties. Accordingly, the State submitted that "legal guardianship"
should be interpreted as providing the APB with a "full bundle of
rights" with respect to the guardianship of Aboriginal children. It was
contended that the APB did not have to follow the processes stipulated in
section 17 or 38 of the Aborigines Act 1934-1939 or section 102
of the Maintenance Act 1926-1937 when acting to remove a child
from his or her parents. |
|
437 |
Counsel for the plaintiff submitted that sections 7 and 10
of the Aborigines Act 1934-1939 did not give the APB the power to
remove Aboriginal children from the custody of their parents and place them
in a foster home. Counsel submitted that a child could only be removed
pursuant to section 17 or 38 of the Aborigines Act 1934-1939 or
section 102 of the Maintenance Act 1926-1937. |
|
438 |
Counsel for the plaintiff further submitted that
Parliament could not have intended sections 7 and 10 of the Aborigines Act
1934-1939 to confer on the APB the power to remove children when regard
was had to the context of the section within the Act and the legal framework
in which the Act operated including their historical and legal context.
Counsel contended that the interpretation of section 7 and 10 called for an
analysis of relevant judicial consideration of the concepts of
"guardianship", "custody" and "legal guardian",
consideration of the historical and legislative background to the Aborigines
Act 1934-1939, as well as an analysis of sections 7 and 10 in the
context of the Act as a whole and in the legal framework in which the Act
operated. |
The Meaning of Guardianship
|
The term "guardianship" has been used and
interpreted as conferring a varying spectrum of powers and duties. As Sachs
LJ in Hewer v Bryant[56] observed: |
In their efforts to assist the court counsel referred to the
series of words and phrases appearing in that cascade of legislation which
during the past half century has touched upon the welfare and protection of
children from many angles. In those statutes one finds scattered, sometimes
with and sometimes without definitions, words and phrases such as "care,
control, custody, actual custody, legal custody, guardian, legal guardian and
possession." In the end, so far as comprehensibility on these matters is
concerned, one finds that this voluminous and well intentioned legislation has
created a bureaucrat’s paradise and a citizen’s nightmare. Each statute was
passed with its eyes focussed on its own particular set of objects, and for my
part I have found but little assistance from their detailed terminology.
|
440 |
As there is no established single meaning of the term
"guardianship" and the rights and duties it confers, it is helpful
to address the historical background to the legal concept of guardianship
before coming to the interpretation of the meaning of "legal
guardian" in the Aborigines Act 1934-1939 and the rights and
obligations conferred on the APB and others. |
|
441 |
The nature and extent of the statutory powers of the APB
as legal guardian in South Australia during the period of the plaintiff’s
removal have not been the subject of direct judicial consideration. |
|
442 |
In Neale v Colquhoun,[57] Richards J considered the meaning of the term
"guardianship" in the Maintenance Act 1926-1941 (SA),
holding that:[58] |
The Maintenance Act 1926-1941 does not expressly
indicate what is comprehended in the word "guardianship", but I think
it must be regarded as including the education, in the wide sense of the
upbringing and all round development of the child.
The understanding of "guardianship" which emerges from
Richards J’s judgment can be compared to that which was adopted in Wedd
v Wedd,[59] where Mayo J
discussed the relationship between "guardianship" and
"custody" in the Guardianship of Infants Act 1940 (SA):[60]
"Custody" is not necessarily coextensive with
"guardianship" .... It may be "guardianship" and
"custody", when used in contrast, are several aspects of the same
relationship. The former can very well be employed in a special context to
denote duties concerning the child ab extra; that is, a warding off; the
defence, protection and guarding of the child, or his property, from danger,
harm or loss that may enure from without. Commonly guardianship is used in a
wider sense: Neale v Colquhoun. Custody essentially concerns control and
the preservation and care of the child’s person, physically, mentally and
morally; responsibility for a child in regard to his needs, food, clothing,
instruction and the like.
|
443 |
These passages illustrate that the term
"guardianship" can be and has been interpreted in different ways.
It is an ambiguous term. The duties of a guardian may be limited to the
protection of a child from harm or loss. Those duties may be more extensive. |
|
444 |
In Youngman v Lawson,[61] Street CJ considered the meaning of
"guardianship":[62] |
[G]uardianship is a relationship which, so long as it
subsists, is recognized as conferring rights in the guardian in respect of the
custody and upbringing (educational as well as religious) of the child. Those
rights may be exercised by the guardian himself or herself actually having
physical custody; or they may be exercised by the physical custody being placed
with others. Such other placements might be temporary and casual as, for
example, allowing a child to stay with friends for a weekend. They may be on a
more regular and extended basis as, for example, placing a child in a boarding
school. They may be of an even more extended character as, for example,
allowing the child to live with grandparents. Such placements do not remove the
legal authority of the guardian over the child. Such authority will subsist
until displaced by an order of a court or the operation of a statute.
|
445 |
This analysis suggests that "guardianship"
confers a variable bundle of rights on a guardian in relation to a child. |
|
446 |
The varying context of the bundle of powers that may be
conferred was the subject of comment by Mason J in Fountain v Alexander:[63] |
"Custody" has a variety of meanings. Like the
chameleon it adapts itself to its surroundings so that little is to be gained
by discussing its various connotations, except to note that in its widest
meaning it is virtually the equivalent of "guardianship" which has
been described as "a bundle of powers" including the power to control
education, the choice of religion and the administration of the infant’s
property. See Hewer v. Bryant.
|
447 |
The term "guardianship" may be used in different
ways.[64] One interpretation of guardianship would not include the
right to physical custody of the child but would only extend to protecting
the child and his or her property from harm and enable the guardian to take
legal action on the child’s behalf. Another possible interpretation of
guardianship may include those rights and also the limited or unlimited right
to custody and control of the child. As earlier noted, there is ambiguity
about the precise meaning of the term itself. As Sachs LJ observed in Hewer,
the meaning is to be found in the terms of the particular legislation.[65] |
|
448 |
Counsel for the State contended that it could be inferred
from the phrase "legal guardianship", in section 10 of the Aborigines
Act 1934-1939, that it was Parliament’s intent to confer the APB with the
widest powers of guardianship. However, Kriewaldt J in Ross v Chambers[66] observed that the word "legal" does not
of itself widen the rights and duties attached to guardianship:[67] |
The word "legal", as will have appeared, is to be
found in the West Australian Act of 1905 and the South Australian Act of 1911
and, indeed, the expression "legal guardian" was used as far back as
1844 in an Ordinance (No 12 of 1844) of the Province of South Australia
relating to aboriginal and half-caste children being bound as apprentices.
I have not been able to trace any reference in any decided case to any
differences between a "legal" guardian and any other guardian,
although I have found many references to the expression of "natural
guardian", usually meaning a parent and it was probably that contrast
which explains the use of the word "legal". In my opinion the word
"legal" in the section merely means "in law" or
"according to law" and does not enhance or detract from the meaning of
the word "guardian".
The crucial word therefore is "guardian". In common usage the word
refers to a person who has or is entitled to have the custody and care of the
person