[1] There are some statutory requirements made of parents and those with parental authority. (See - Child Welfare Act 1947 (WA) - Section 52 Wards to attend school regularly and Education Act 1928 (WA) - Section 13(a) Attendance at school compulsory - the parent of every child of not less than 6 nor more than 9 years of age shall... cause such child to attend such school on such days as the school is open. Also see ss262 and 263 of the Criminal Code Act 1902 (WA). Section 262 Duty to provide necessaries - It is the duty of every person having charge of another who is unable by reason of age, sickness, mental impairment, detention, or any other cause, to withdraw himself from such charge, and who is unable to provide himself with the necessaries of life, whether the charge is undertaken under a contract, or is imposed by law, or arises by reason of any act, whether lawful or unlawful, of the person who has such charge, to provide for that other person the necessaries of life; and he is held to have caused any consequences which result to the life or health of the other person by reason of any omission to perform that duty. Section 263 Duty of head of family - It is the duty of every person who, as head of a family, has the charge of a child under the age of 16 years, being a member of his household, to provide the necessaries of life for such child, and he is held to have caused any consequences which result to the life or health of the child by reason of any omission to perform that duty whether the child is helpless or not.. Similarly the Family Law Act 1975 (Cth) also makes some limited statutory incursions to family life.
[2] See "Social Policy and Legislative Framework"
[3] See "Social Policy and Legislative Framework".
[4] See "Policies and Procedures of Sister Kate's"
[5] See "Policies and Procedures of Sister Kate's"
[6] See Kruger v Commonwealth (1997) 146 ALR 12 and Cubillo v Commonwealth of Australia [1999] FCA 518 (30 April 1999) see - http://www.austlii.edu.au/do/disp.pl/au/cases/cth/federal_ct/1999/518.html
[7] Whittington, Vera, 'Sister Kate: A life dedicated to children in need of care' (Perth, University of Western Australia Press, 1999) p6
[8] For the purposes of convenience this institution will, in places, be referred to generically as the Home. As will be explained in "Policies and Procedures of Sister Kate's", the Home has had various names and has undergone numerous control changes.
[9] Leaming Joan, 1986: 'Nearly White: Assimilation Policies in Practice in Western Australia at Sister Kate's Children's Home from 1933 to 1964' (unpublished thesis) p40
[10] Abbreviated to ALSWA
[11] See Human Rights and Equal Opportunity Commission, Bringing them home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, (Canberra : AGPS, 1997) and Buti, Tony, 'After the Removal' (Perth : Aboriginal Legal Service of WA, 1996) A submission by the Aboriginal Legal Service of Western Australia (Inc) to the National Inquiry into Separation of Aboriginal and Torres Strait Islander Children from their Families.
[12] Above note 6 Cubillo v Commonwealth, Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor [1999] NSWSC 843 (26 August 1999) - www.austlii.edu.au/do/disp.pl/au/cases/nsw/supreme_ct/1999/843.html, Above note 11 Bringing them Home at pp 151-233 and Aboriginal Legal Service, 'Telling Our Story' (Perth : Aboriginal Legal Service of WA, 1996) pp30-49.
[13] Equitable actions have been more readily discussed because of the holding in the Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497. This case holds that equitable actions stand outside the boundaries of the limitation period, at least in New South Wales. It is currently unclear in Western Australia whether equitable actions are covered by the limitation period. See - Buti Tony, 'Removal of indigenous children from their families: the litigation path', (1998) 27 (2) University of Western Australia Law Review p203-226 and for more recent discussion see above note 6 Cubillo v Commonwealth.
[14] See Douglas, Gavin, 'The Removal of Aboriginal Children: A case of breach of fiduciary duty?' Honours Thesis, University of Western Australia, 1997 and authorities cited within paper.
[15] During both periods in which the Home was known as The Children's Cottage Home and Sister Kate's Children's Home - see "Policies and Procedures of Sister Kate's".
[16] Clearly an action in assault or negligence could be supported.
[17] See Chapters One, Six and Seven.
[18] It is immaterial to this status that the natural family/parents still existed. In absence of parents does not mean permanent absence and apparently can be a temporary status. Although this point has not been authoritatively discussed it is consistent with the overall submission of this paper that leniency is provided because the person is engaging in the task of parenting rather than the many other policy arguments which this paper will identify (see "Hahn v Conley" and the 'Circumstantial Matrix'). The term parent and in loco parentis will be used synonymously throughout this paper. For the sake of simplicity I will use the general term parent. In using this term I will mean both a natural or adoptive parent and those standing in loco parentis. Where a distinction is to be drawn between the two relationships I will indicate.
[19] In this legal analysis I will not examine all the elements necessary to sustain an action of negligence. Australian law and that of other jurisdictions has concentrated on the issue of whether a parent owes their child a duty of care. Therefore I will specifically address the issue of whether Sister Kate's actually owed a duty of care to the children in their care. The practicality of bringing an action in negligence will also not be discussed. For Western Australia this will be a moot point because of the limitation rules in our state (see Limitation Act 1935 (WA) ss 38B(vi) and 16). However this paper may have some significance to other jurisdictions, such as the Northern Territory, where they have less stringent limitation rules. See discussion in note 13 The Litigation Path.
[20] See Chapters Three to Five
[21] See Chapters Three to Five.
[22] Herthel, Thomas. J, 'Parental Immunity in Alabama: Let's not let Parent's get away with Murder - An argument to re-examine the issue' (1995) 25 Cumberland Law Review 409at 425. See also Foldi v Jeffries 93 N.J. 533, 461 A.2d 1145 (1983).
[23] The Children's Cottage Home and Sister Kate's Cottage Home.
[24] Above note 12 Telling our Story at 10
[25] Under the authority of the Australian Colonies Government Act 1850 (UK) see above note 12 Telling our Story at 10-11.
[26] Above note 12 Telling our Story at 11
[27] Above note 12 Telling our Story at 10
[28] Above note 11 Bringing them Home at 102
[29] Above note 12 Telling our Story at 11
[30] Above note 12 Telling our Story at 12
[31] Haebich, Anna, 'For their own Good: Aborigines and Government in the South West of Western Australia 1900 - 1940', 2nd ed, (Perth : University of Western Australia Press, 1992)
[32] Above note 9 at pp17-18
[33] Above note 11 Bringing them Home at 102
[34] Above note 31 at p57 (emphasis added)
[35] Above note 11 After the Removal at p25 (emphasis added)
[36] The Honourable J.M. Drew as cited within Above note 11 After the Removal at p25 (emphasis added)
[37] The proper terms to be adopted in this paper will be clarified in "Policies and Procedures of Sister Kate's".
[38] Above note 11 After the Removal at p25
[39] Above note 11 Bringing them Home at 102
[40] Above note 12 Telling our Story at p13
[41] Above note 9 at p7 (emphasis added). It should also be noted that subsequent legislation and amendments only sought to strengthen the Government's power over an Aboriginal family. The 1911 amendments (See Aborigines Act Amendment Act 1911 (WA)) to the Aborigines Act 1905 (WA) extended the Protector's guardianship power to remove Aboriginal children to the 'exclusion of the rights of the mother of an illegitimate or half caste child'. Sections 8 and 12 of the Native Administration Act 1905-1936 (WA) increased the Chief Protector's guardianship powers and destinations of removal. The new definition of 'native child' (expanded to mean any child of Aboriginal descent) widened the scope of the Chief Protector's guardianship and therefore jurisdiction. The Native Welfare Act 1954 (WA) simply reiterated the removal powers under the 1936 Act. However the Native Welfare Act 1963 (WA) repealed all previous legislation and abolished the Chief Protector's removal powers. The removal of Aboriginal children continued under the arbitrary implementation of the broad provisions of the Child Welfare Act 1947 (WA). The removal policy was effectively ended with the Aboriginal Affairs Planning Authority Act 1972 (WA). See above note 31 at pp 83-89, 267, and above note 11 After the Removal at pp15-24.
[42] Above note 12 Telling our Story at p14
[43] Stephen Hall, 'No Better than Anyone Else: A discussion paper on the role of the churches and related organisations, religious orders and missionary societies in Aboriginal child removal and institutionalisation' Social Responsibilities Commission of the Anglican Church in the Province of Western Australia (November 1995) at pp8-9.
[44] Mr A.O. Neville, the second Chief Protector of Aboriginals in Western Australia. Report recorded in The Telegraph, May 5th, 1937; cited within above note 43 Hall at 8-9.
[45] ibid
[46] ibid
[47] Above note 11 Bringing them Home at 108
[48] This is taken from the Native Administration Act 1936 - although wording is not significantly different. The Chief Protector was not required to investigate the ability of the natural parents to care for their child and it seems that the mere fact that a child was Aboriginal meant by definition its natural parents could not care for the child. The unrestricted nature of the power serves to show that society viewed the Aboriginal family as disfunctional and inadequate. Neville used this 'carte blanche' power to engage in biological and social engineering aimed at the elimination of the Aboriginal race see above note 31 Haebich at pp153-187 and above note 11 Bringing them Home at p108.
[49] See above notes 41 and 48.
[50] Above note 11 Bringing them Home at pp102-103.
[51] ibid
[52] This issue will not be discussed in this paper but the reader is referred to discussions by Storey, Matthew, 'The stolen generations: more than just a compo case' (1996) 3(86) Aboriginal Law Bulletin pp4-5, Brunton, Ron, 'Genocide: the "stolen generations", and the "unconceived generations"' (1998) 42(5) Quadrant (Sydney) pp19-24, Buti, Tony, 'Removal of indigenous children from their families : the national inquiry and what came before : the push for reparation' (1998) 3(1) Australian Indigenous Law Reporter pp1-18, Manne, Robert, 'The stolen generations' (1998) 42(1&2) Quadrant pp53-63, Cummings, Barbara, 'Writs and rights in the Stolen Generations (NT) case' (1996) 3(86) Aboriginal Law Bulletin pp 8-10 and the recent case on genocide of Nulyarimma v Thompson [1999] FCA 1192 see - www.austlii.edu.au/au/cases/cth/federal_ct/1999/1192.html
[53] The Presbyterian, Methodist and Congregational Churches were the foundation churches to the Uniting Church which was formed in 1977. Any legal action undertaken today arising from this period arguably lies with the Uniting Church. See - The Uniting Church in Australia - Synod of Western Australia, Submission to the National Inquiry into the Separation of Aboriginal and Torres Straight Islander Children from their Families, (12th September 1996) at p1 and above note 7 at p440.
[54] As Sister Kate's is now known.
[55] Above note 53 at p1.
[56] Above note 7 at p432-33.
[57] Above note 11 Bringing them Home at pp153-177.
[58] This paper will offer some comments on the potential liability of the administrative board. However the practicality of bringing such an action will not be discussed. See "Approaching the Questions".
[59] Above note 9. How a court may approach this issue as an allegation of negligence will be discussed in "Approaching the Questions".
[60] See "Approaching the Questions".
[61] It was a Native Institution under section two of the Native Welfare Act and therefore within the Government's jurisdiction. See Above note 7 at p408.
[62] By Emily Harriet Ayckbowm. See - McCracken Jenni, 1990: 'A penny for the ponies: the work of the Community of the Sisters of the Church at Parkerville Children's Home (1903-1933)' (unpublished thesis) at p1
[63] Above note 9 at p20
[64] Above note 62 at p2
[65] An eighteenth century educationalist responsible for creating the kindergarten see Above note 9 at p21
[66] Above note 9 at p21
[67] Above note 62 at p4. Bishop Parry, was concerned that there was no place for young Anglican girls to attend school and the Sisterhood was employed to answer this problem.
[68] The CSC upon arriving in Western Australia had requested permission to create an orphanage. Bishop Parry would not grant permission for such an orphanage as there were already four operating in Perth and he did not want a situation of these homes acting in competition. Above note 62 at p19.
[69] Above note 62 at p19.
[70] Above note 62 at p19.
[71] Above note 62 at p19.
[72] Above note 9 at 21 and see Beresford, Quentin and Omaji, Paul, 'Our State of Mind: Racial Planning and the Stolen Generations' (Perth, Fremantle Arts Centre Press,1998) p34.
[73] Above note 62 at p19.
[74] Above note 62 at p31.
[75] Above note 7 at p272 - 275. The conflict lay in a historical division that stretched back to the creation of the Sisters of the Church. Emily Ayckbowm refused to allow the clergy to have any control over the order. It was not until 1903 that the order accepted the clergy as being partner in Gods work. The order and the rest of the Anglican family seemed to operate in tandem, but the historical origins of the order meant that they were always and strove to remain a body independent of the Anglican church. As Whittington observes, this was probably the real reason behind Sister Kate's reluctance to hand control of Parkerville over to the Brisbane Sisters. The Brisbane Sisters were within the Archbishop's jurisdiction therefore bringing Parkerville within that jurisdiction as well. While Parkerville remained under the Community of the Sisters, it would be outside of the Anglican Church's control. Interestingly Parkerville was never under the control of the Anglican Church. Many Anglican Church's have supported the Home, but it remains under the Community's and subsequently the Church Extension Association's control.
[76] Above note 7 at p273
[77] And as will be shown, the Government of Western Australia.
[78] Above note 7 at p272. .
[79] Above note 7 at p278.
[80] See "Social Policy and Legislative Framework".
[81] Sister Kate was not someone of great individual personal wealth, however she possessed many friends eager to help her. She also possessed a keen ability to raise public consciousness and have them fund her projects. See above notes 7 and 9 generally.
[82] Above note 9 at p22.
[83] There is some truth to this but it should be noted that the only regular income for the Home came from the Aborigines Department. The Department paid a subsidy of seven pounds yearly for each child dependent on the Department, and passed on maintenance payments provided by any relatives. However any expansion in the cottage system was due mainly to her own private initiatives. Work started at Buckland Hill on August 26, 1933. This cottage became known as Myola and was erected in May 1934. The funds necessary for this construction mainly came from private support and public fundraising. The second cottage [Friend's'] was built in June 1935 courtesy of the Lotteries Commission. The third cottage was built in July 1936 due to the donations of a Corrigin farmer J.L. Crossland. See above note 7 at p336.
[84] '...her decision to send her children, in this instance, to a State school outside the Home stemmed not so much from financial stringency but from a well considered viewpoint as best for them. The idea of segregation would have had short shrift with her. See Above note 7 at p328 (emphasis added)
[85] Neville saw the Home as an assimilation tool and therefore the Home had to operate under strict admission controls. Thus Sister Kate did not always receive those children in the greatest need, but rather those with the palest skins. In a letter in 1933 she stated; 'We would, of course, like to have the poorest and most neglected children, not those who have mothers who love and care for them... those who are the most unwanted in the State'. See above note 9 at p23.
[86] Above note 7 at p368.
[87] These facts will become significant when applying the legal principles identified in following parts. See - "Approaching the Questions".
[88] The association was, Mr Moseley, Mr E.W. Gillett, Mr John Lefroy and Mr Paul Hasluck. See Maloney B, 1964: 'The Life and Work of Sister Kate' (unpublished thesis) at p14
[89] Above note 9 at p48
[90] Above note 9 at p40
[91] Above note 9 at p68
[92] Above note 7 at p440.
[93] Leaming's paper covers the years 1933 to 1964. The Presbyterian Church took control in 1956 and her views can be of some assistance in characterising the parental/non-parental nature of this policy for part of this period. However Government policy underwent a significant change after 1963 (see "Social Policy and Legislative Framework") and Leaming's paper does not go into depth regarding this later period. Therefore the materials contained in the Uniting Church's submission to the National Inquiry will be relied upon to compensate for this.
[94] Hereinafter 'the submission'.
[95] Above note 53 at p41.
[96] It is arguable that support for this policy continued on an unofficial basis.
[97] Above note 53 at p83.
[98] Above note 53 at p59.
[99] Above note 53 at p80.
[100] See "Hahn v Conley".
[101] Above note 53 at p81.
[102] Above note 53 at p82.
[103] See also above note 53 at p88.
[104] This will be attempted in "Approaching the Questions".
[105] See - Chapters Six and Seven.
[106] Trindade, F.A, and Cane, Peter, Torts: Cases and Commentary, 4th Ed (Sydney : Butterworths, 1993) and H v Norfolk County Council [1997] 1 FLR 384 at 387.
[107] See - Robertson v Swincer (1989) 52 SASR 356 at 372 per Millhouse J.
[108] Posthuma v Campbell (1984) 37 SASR 321 at 329 per Jacobs J.
[109] This term will assume a highly significant and technical meaning in this paper.
[110] See the 'Circumstantial Matrix'.
[111] See "...the delicate nature of the task..."
[112] Namely the United Kingdom, United States of America and New Zealand.
[113] Wright, Jane, 'Negligent Parenting - can my child sue?', (1993) 6(3) Tolley's Journal of Child Law 104at 105
[114] Hollister, Gail.D, 'Parent-Child Immunity: A Doctrine in Search of Justification', (1982) Vol 50 Fordham Law Review 487. See also Hahn v Conley (below note 117) and above note 106 Trindade. As to the ability of insurance to override the operation of a policy argument, it has recently been decided that an insurance company, although subrogating the rights of the defendant, can be treated as an individual and separate party, not necessarily entitled to the benefits of policy arguments which a defendant is ordinarily entitled to. See Kars v Kars (1996) 187 CLR 354, Rosencrance v Rosencrance (1995) 105 NTR 1 and Lynch v Lynch (1991) 25 NSWLR 411.
[115] Above note 108, Gala v Preston (1991) 172 CLR 243
[116] Hewlett v George 68 Miss. 703, 9 So. 885 (1891) also implied in other Australian decisions as will be explained.
[117] Hahn v Conley [1971] 126 CLR 276 at 283-84
[118] A close analogy may be drawn with negligence for public authorities. It is commonly accepted that decisions of policy are non-justiciable, but operational decisions are reviewable. See discussion in Luntz, Harold and Hambly, David, The Law of Torts in Australia, 4th Ed (Sydney : Butterworths, 1992) pp 434 - 448, Pyrenees Shire Council v Day (1998) 192 CLR 330, Romeo v Conservation Commission (NT) (1998) 192 CLR 431, Sutherland Shire Council v Heyman (1985) CLR 424 and Anns v Merton LBC [1978] AC 728.
[119] Ash v Ash, Comb. 357, 90 Eng. 526 (1696). See also - Verizzo, David M. 'Child vs. Parent' (1985) The Florida Bar Journal 49.
[120] Or shaking - See Regina v Walters [1998] NSWSC 345 (24 March 1998), R v Kerbatieh [1997] QCA 30 (7 March 1997), The Queen v Kendall Matthew James (1993) 113 FLR 247; [1993] ACTSC 58 (23 June 1993) and R v Eketone [1995] QCA 301 (11 July 1995) (websites extracted in bibliography)
[121] These arguments will be expanded upon in "Approaching the Questions".
[122] (1945) 70 CLR 256
[123] (1970) AC 1004
[124] Above note 113 at 108 (emphasis added)
[125] Above note 12 Williams v The Minister [1999] at para 96 (emphasis added)
[126] Above note 122 at 260-61
[127] (1995) ATR 81-323
[128] Above note 127 at 62,160 (emphasis added)
[129] Above note 117
[130] Above note 117 at 278-80
[131] Above note 117 at 283-84 (emphasis added). AJ Donovan believed that the case was factually similar to Leurs and Dorset (Above notes 122 and 123 respectively).
[132] [1966] NZLR 710 as cited in Rogers v Rawlings [1969] QdR 262 per Hart J in quoting McCarthy J at 267. Also see above note 113 at 106.
[133] Above note 106 H v Norfolk County Council at 387 (emphasis added)
[134] Above note 117 at 283-84 (emphasis added)
[135] Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor [1999] NSWSC 843 (26 August 1999)
[136] Above note 117 at 283 (emphasis added)
[137] See "American Law".
[138] Collett v Hutchins [1964] QdR 495 at 503. See below note 205.
[139] Above note 117 at 281-284
[140] Above note 117 at 282
[141] Above note 117 at 285 and above note 113 at 107. Wright also queries this analysis. Could 'The Court's decision that no duty of care was owed may well have been precipitated by an unarticulated desire to avoid the consequences of the contribution legislation.'
[142] See Chapters Four and Five.
[143] Above note 108
[144] Above note 108
[145] The Grandparent's also erroneously submitted that the parental relationship created the duty. This argument was disposed of in Hahn - See "Hahn v Conley".
[146] Above note 108 at 330-31 (emphasis added)
[147] The term is not explained but it is raised by other authorities which will be discussed below.
[148] Holodook v Spencer 36 NY 2d 35 (1974) at 346 (emphasis added)
[149] However that is not to say that all prima facie domestic situations are treated in a like manner. This point will be discussed.
[150] Above note 108 at 329 (emphasis added)
[151] Above note 107
[152] Above note 107 at 359-60
[153] Above note 117 at 283
[154] Anderson v Smith 1990 101 FLR 34 at 47. See also above note 108 at 329 - Jacobs J acknowledged that the 'being led into danger' statement was simply exemplary and merely a common example of when a parent will have a duty imposed upon them.
[155] Above note 154 at 47 (emphasis added)
[156] See discussion by Balkin, R.P, Davis, I.L.R, 'Law of Torts' (Perth : Butterworths, 1996) at pp 217-221 and Horsley v Maclaren (The Ogopogo) (1971) 22 DLR (3d) 545 (SCC), Hargrave v Goldman (1963) 110 CLR 40.
[157] Either due to the above analysis or because of the court's apparent emphasis on the fact that the risk was not foreseeable - See Michael Liu, Michael, 'Robertson & Anor v Swincer - Case Notes' (1990) 17 Melbourne University Law Review p 772.
[158] Robertson v Swincer (1989) 20 Leg Rep SL 3 cited in Personal Injury 1 Australian Torts Reporter (CCH Australia) at 13,192
[159] King CJ decided on the basis of being led into danger and also cited policy reasons. Legoe J also relied upon policy reasons. Millhouse J agreed with the policy reasons of King CJ and Legoe J.
[160] Above note 107 at 360 - This has some significance to American law. See "Domestic v Parental Decisions" and the discussion of Felderhoff, Wright and Jilani.
[161] Above note 107 at 361
[162] Surtees v Kingston-Upon-Thames Bourogh Council; Surtees v Hughes and another [1991] 2 FLR 559 at 584
[163] Above note 148 cited within Stecker, Paul. K, 'Parental Tort Liability - Dole Rule - No Cause of Action Based on Parental Negligence In Child Supervision' (1975) 60 Cornell Law Review 1105 at 1115
[164] The question now is what is 'such conduct'? Surely not all conduct by a parent is parental. The American decisions demonstrate this.
[165] Above note 108 at 329
[166] Above note 148 at 346
[167] Pedigo v Rowley 610 P.2d 560 (1980) at 564 167(a) Above note 12 Williams v The Minister [1999] at para 801 (emphasis added)
[168] Above note 115
[169] It may be argued that this is not good policy and that people are being allowed to escape liability because it is too difficult yet this is incorrect. A task which is difficult or complex will not prevent a court from reviewing whether that conduct was negligent as they can be educated about the task by recognised experts. However there may be situations where it is inappropriate for the court to review the defendant's conduct. As in Gala the court was being asked to investigate the reasonableness of the defendant's driving while intoxicated and in pursuit of an illegal venture. In the majority's view it was inappropriate to investigate this issue and decided on policy grounds (and others) that a duty was not owed. Similarly R v TakTak (1988) 14 NSWLR 226 held that it was inappropriate to start reviewing the reasonableness of a defendant's conduct while pursuing an illegal activity. The law does not want to start reviewing or adjudicating upon whether certain criminal activity was properly performed. It is inappropriate to do so and I submit that a similar policy argument exists here. 169(a) Above note 107 at 361
[170] However they cannot endanger the child.
[171] See "American Law". The reader is also referred to discussion relating to religious freedom under the Constitution of the Commonwealth of Australia. See - Commonwealth of Australia Constitution Act 1900 (63 & 64 Victoria, Chapter 12 s116. Blackshield, Tony, Williams, George and Fitzgerald, Brian, Australian Constitutional Law Theory: Commentary and Materials' (Sydney, The Federation Press, 1996) pp716-724, Above note 6 Kruger v Commonwealth, Adelaide Company of Jehova's Witnesses Inc v Commonwealth (1943) 67 CLR 116, Krygger v Williams (1912) 15 CLR 366 and Church f the New Faith v Commissioner of Pay - Roll Tax (Vic) (1983) 154 CLR 120.
[172] Above note 107 at 360 per King CJ refers to the issue facing the court as to whether the law will provide remedy for 'a common type domestic accident'. See also the discussion in "Domestic v Parental Decisions" regarding the boundaries of the Parental Immunity doctrine.
[173] Towart v Adler (1989) 52 SASR 373 at 376 (emphasis added)
[174] Bye v Bates (1989) 51 SASR 67 at 73
[175] ibid
[176] ibid
[177] Above note 162. See also - X (Minors) v Bedfordshire; M (A minor) and Another v Newham London Borough Council and Others; E (A minor) v Dorset [1995] 2 AC 633
[178] Above note 162 at 582
[179] Andrews, Carolyn. L, 'Parent - Child Torts in Texas and the Reasonable Prudent Parent Standard' (1988) 40 (71) Baylor Law Review at 125-26
[180] Above note 179 at 125-26
[181] Arguably with Hahn, Barwick's CJ analysis suggests that the grandfather's conduct was not wrongful on any level as he was simply reassuring the child of his presence.
[182] These views are echoed in American law - See Chapters Five and Six.
[183] Above note 162
[184] Above note 113 at 108
[185] This argument was adopted in Towart.
[186] Above note 162 at 12
[187] Above note 162 at 25 (emphasis added)
[188] Above note 132 McCallion at 267 of Rogers v Rawlings (also above 132).
[189] Hahn v Conley is also distinguishable on the facts because Barwick CJ argued that the grandfather did not intend, nor would a reasonable person believe he intended the child to come near the roadway.
[190] Above note 107 at 360-361
[191] Above note 154 at 46-48
[192] Above note 12 Williams v The Minister [1999]
[193] Above note 12 Williams v The Minister [1999] at para 102
[194] '[t]he moral duties of conscientious parenthood do not at common law provide a child with any cause of action arising from their... neglect' - see - above note 117 at 283.
[195] Fleming, John. G, 'The Law of Torts by John G. Fleming' (Sydney : Law Book Company, 1998) p746
[196] See "American Law".
[197] Above note 127 at 62,160
[198] The reader is again directed to the analogy with negligence for Public Authorities.
[199] Above note 116
[200] Felderhoff v Felderhoff, 473 SW.2d 928 (1971) at 930
[201] Above note 200 at 931-32
[202] Mitchell v Davis 598 So 2d 801 (Ala. 1992) at 803
[203] Above note 116
[204] This was despite the intentional and malicious acts of the mother in placing her child in an insane asylum. The court argued that immunity for parents has wider benefits for society generally.
[205] Above note 116 at 198. It is interesting to note that before Hahn v Conley similar views had been expressed in Australia. Above note 138 at 503 per Mack J; 'I have arrived at the conclusion that the child has not a right of action against a parent for breach of the moral parental duty alleged here, whether at common law or by statute.'
[206] For various discussions of 'the Great Trilogy' and the traditional policy grounds see - Rash, M. Mebane, 'The North Carolina Supreme Court Engages in Stealthy Judicial Legislation: Doe v Holt' (1993) 71 North Carolina Law Review 1227, Vardiman, Martha, 'Ohio Abolishes Intrafamilial Tort Immunity: Shearer v Shearer, 18 Ohio St. 3d 94, 480 NE 2d 388 (1985)' (1986) 55 Cincinnati Law Review 305, Postler, Charles A. 'Torts - Parental Immunity: A Time for Change' (1983) 25 University of Florida Law Review 181, Wingerter, Isabel, 'Parent-Child Tort Immunity' (1990) 50 Louisiana Law Review 1131 and Anonymous, 'Harmony or Dissonance? Dzenutis v Dzenutis and the Policy Justifications for Parental Immunity in Connecticut' (1987) 19 Connecticut Law Review 679.
[207] 77 SW 664 (Tenn. 1903)
[208] Above note 114 Hollister at 494-95
[209] Roller v Roller 37 Wash. 242, 79 P. 788 (1905)
[210] The court could not rely upon the preservation of family harmony as this case dealt with a father raping his daughter. As the court would have been placing a value upon family harmony which was inapplicable to the facts the following policy rationales were used; * the family is an economic unit, * the preservation of parental authority and discretion, * the analogy with interspousal immunity, * if the child predeceased the parent the parent would be seen to have profited from their own wrong, and * the courts cannot decipher between what levels of tortious conduct should stand outside the immunity and those which it should embrace. See also Garson, Perry S, 'Parental Tort Immunity and Foster Parents: Mayberry v Pryor' (1986) 9:1 GMU Law Review 197 at 199. These historical rationales have been criticised by this and many other authors as being either inaccurate or inapplicable to modern society. Also see authorities cited at above note 206.
[211] Above note 210 at 199
[212] Above note 114 Hollister.
[213] See above note 210
[214] Above note 114 Hollister at 496-97
[215] In Goller v White 20 Wis. 2d 402, 122 N.W. 2d 193 (1963) the court all but extinguished the immunity but for two spheres of conduct. A parent was immune where their conduct was either an exercise of parental authority (such as in disciplining a child) or an exercise of parental discretion in the provision of food, clothing, housing, medical and dental services, and other care. Sandoval v Sandoval 128 Ariz. 11, 12-13, 623 P.2d 800, at 801-02 developed an exception along similar lines. The immunity applied where the parent only breached a duty owed to a child within the family sphere, rather than a duty owed to the world at large. Rigdon v Rigdon 465 S.W.2d 921 adopted a version of this exception. A parent was immune only where the conduct was an exercise of ordinary discretion with respect to providing care and necessities (Above note 114 Hollister at 512).
[216] Gibson v Gibson, 479 P.2d 648 (Cal 1971). See also - above note 179, Stavsky, Averim, 'Kirchner v Crystal - Ohio Abolishes Parental Tort Immunity: Family Harmony has never been so well protected' (1985) 14 (68) Capital University Law Review 681
[217] Barwick CJ agreed that parents should not be subject to the full rigours of negligence when he stated "...the duty of care springs out of the particular situation: the extent and nature of the steps which it may be necessary to take to discharge the duty may well be influenced by the fact of parenthood" Above note 117 at 284. It should be noted that many other Australian and American Justices have rejected such an approach. See Pedigo v Rowley 610 P.2d 560 (1980) at 564 and above note 148.
[218] See "Domestic v Parental Decisions".
[219] Above note 22 Foldi v Jeffries - See also Above note 210 at 207. (emphasis added)
[220] See "...the delicate nature of the task..." as to who should be seen to have parental responsibility and the status of 'in loco parentis'.
[221] An exception to the rule that the parent is immune from prosecution. See also - Above note 206 Vardiman, Webb Lovill, Kathryn, 'Frye v Frye: Maryland sacrifices the Child for the sake of the Family', (1986) 46 Maryland Law Review 194
[222] Above note 200 at 929. See also Dunlap v Dunlap 84 NH 352, 150 A 905 (1930) and above note 216 at pp686-87
[223] Above note 200 at 933 (emphasis added). Generally Felderhoff is quoted as supporting the proposition that the immunity attaches to acts of ordinary negligence in the exercise of parental prerogatives. The term ordinary negligence is explained at note 251. See also - Signs v Signs, 156 Ohio St. 2d 117, 216 NE2d 375 (1966)
[224] See "...the delicate nature of the task...".
[225] Grobart, David. L, 'Parent-Child Immunity in Illinois' Loyola University Law Journal (1986) 17 303 at 313 - 315 (emphasis added)
[226] 100 Ill. App. 2d 199, 241 NE 2d 12 (1968) at 15 (emphasis added)
[227] Danaher, Colleen. M.,'Cates v Cates: Illinois' 'Solution' to Tort Litigation Between Parents and Children' (1994) 25 Loyola University Chicago Law Journal 607 at 614-15. See also McArdle, Timothy. I, 'Stallman v Youngquist: Parent-Child Tort Immunity: Will Illinios ever give this doctrine the examination and analysis it deserves?' (1986) 19 The John Marshall Law Review 807 at 810-11, Stallman v Youngquist 129 Ill. App. 3d 859, 473 NE2d 400 (1984) at 402-03. Similar views were expressed in Cates v Cates 619 NE 2d 715 (Ill 1993) where on similar facts the court reasoned; ...such conduct does not represent the decision-making process or discretion of a parent in disciplining, supervising, or caring for his or her child... his duties as a driver did not inherently relate to the parent-child relationship. See also - Above note 227 Danaher at 628
[228] Above note 227 Danaher at 614-15, see also - Nudd v Matsoukas 131 NE2d 525 (Ill. 1956)
[229] 767 SW 2d 672 (1988)
[230] McLeod, Chanse, 'Jilani v Jilani: The Erosion of the Parental Tort Immunity Doctrine in Texas' (1989) 28 Houston Law Review 717at 720
[231] Above note 230 at 722
[232] Above note 114 Hollister at 511 - See also 'TORTS: Ohio parental immunity rule - An unemancipated child is barred by the Ohio rule of parental immunity from recovery in a negligence suit instituted against its parent - Karam v Allstate Insurance Co. 70 Ohio St. 2d 227, 436 N.E.2d 1014 (1982)', (1982) Vol 12 Capital University Law Review 173 at 175.
[233] Cates v Cates, 619 NE 2d 715 (Ill 1993)
[234] Above note 227 Danaher at 628
[235] Above note 210 at 197
[236] 431 U.S. 816 (1977) at 844-45. It should be remembered that Smith was not directly on point. This case was discussing whether foster families were entitled to a constitutional right which afforded the family some degree of independence.
[237] Such as the otherwise quite incongruous treatment of teachers - See above note 113 at 108. 'It is instructive to compare the courts' evaluation of the standard of care with the authorities concerning actions brought on behalf of children against schools, in respect of injuries suffered at school, allegedly as a result of negligent supervision, where the reasonable parent standard is also applied.' at 108. Teachers are held to the standard of a good and reasonable parent and arguably by doing so the law becomes capable of determining what makes up a good parent. However the courts have been clear that the teacher/student cases bear little or no relevance to the parent and child situation. The situations are separate and distinct. As Legoe J stated in Robertson and also in quoting Lord Goddard; moving from the classroom or schoolyard to the family home and family life in general , it is important to recognise that different considerations arise - Above note 107 at 367 there is no analogy between a school play ground and the home in this respect. - Carmarthenshire County Council v Lewis [1955] AC 549 at 562 as cited in above note 107 at 366.
[238] Forward, Anne, 'Breach of Duty: A new paradigm for the abuse of adolescents and children in care' (1995) 20 (3) Children Australia 19 at 21.
[239] See "Hahn v Conley".
[240] 422 Mich. at 582, 374 N.W. 2d. Justin Mayberry was placed into the care of the defendants' who were properly licensed foster parents. While he was in the defendants' care he was attacked by their neighbours dog which left him with permanent brain damage. Justin's natural mother alleged negligence against the owners of the dog and the defendants. At trial level and appellate level the court held that the decision by the defendants to leave Justin unattended was an exercise of reasonable parental authority which was protected by the new form of parental tort immunity doctrine.
[241] Above note 210 at 202
[242] Above note 210 at 202-03
[243] 112 Misc 2d 37, 446 N.Y.S. 2d 169
[244] Above note 236
[245] Above note 210 at 204-05
[246] Above note 210 at 205
[247] Above note 210 at 205 and In re Diana P 424 A.2d 178 (1980) at 180-181
[248] Above note 210 at 206 (emphasis added)
[249] Above note 202 at 801 - The action was brought by the Administrator and conservator of foster children's estates for the wrongful death and injury to the foster children in the defendant's care.
[250] Russell March III, E.,'Parental Immunity Doctrine' (1993) 23 Cumberland Law Review 483
[251] 'the court distinguished between claims of simple negligence, which qualify the foster parents for protection under the doctrine, and claims of negligence rising to the level of wantonness, for which the doctrine offers no protection. The case was remanded to the trial court to determine whether the negligence alleged was simple negligence (eg. As when a foster child is injured when he slips on a roller skate carelessly misplaced inside the foster home) or rose to a level of wanton negligence (eg. As when a foster child is injured because of the foster parents driving an automobile under the influence of alcohol.)' in above note 250 at footnotes 13 & 14.
[252] Above note 202 at 805
[253] Above note 202 at 804-05 (emphasis added)
[254] Above note 106 H v Norfolk
[255] Above note 106 H v Norfolk County Council at p385-86 (emphasis added)
[256] Above note 12 Williams v The Minister [1999] at para 105 (emphasis added)
[257] Above note 12 Williams v The Minister [1999] at para 765 (emphasis added)
[258] Above note 12 Williams v The Minister [1999] at para 787 (emphasis added)
[259] Above note 202 at 804 They contend that foster parents provide religious and social instruction to the foster children in their home. The foster parents also contend that although they are paid a supplement for each child in the home, it covers only minimal costs. They contend that if foster parents were not immune from civil suits by foster children, there would be a sharp decrease in the number of individuals willing to be foster parents.
[260] The reader is directed to the apparent inconsistency of this approach with teachers. Although teachers in many ways adopt a parental role, they are not afforded the same apparent leniency as natural parents are. This inconsistency is reconciled by acknowledging that the economic entity principle applies. The teacher and school would be insured against any harm suffered by the child. This insulatory quality of insurance denies the teacher any leniency.
[261] It would be possible for an Australian court to follow the Mayberry approach and hold that as the Children's Cottage Home or Sister Kate's was a foster home, their relationship originated in contract and therefore a parental relationship did not exist.
[262] See "Hahn v Conley" (the Circumstantial Matrix) and "American Law".
[263] Above note 52 Nulyarimma v Thompson at para 62 'However, the Court's role is to hear and determine, in accordance with law, controversies arising between parties. It is not within the Court's power, nor is its function or role, to set right all of the wrongs of the past or to chart a just political and social course for the future.'
[264] Above note 12 Williams v The Minister [1999] at para 96 (emphasis added)
[265] Above note 116 at 198.
[266] As has been commented family is tied to its historical context. See - Parker, Stephen, Parkinson, Patrick, Behrens, Juliet, Australian Family Law in Context: Commentary and Materials (2nd Ed) (Sydney : LBC, 1999) at pp12-27
[267] See Chapters One and Two.
[268] Above note 243
[269] Above note 243 at 172-174
[270] See "Social Policy and Legislative Framework".
[271] See "Policies and Procedures of Sister Kate's"
[272] Above note 202 at 804-05 (emphasis added)
[273] Above note 12 Williams v The Minister [1999] at para 25
[274] Above note 12 Williams v The Minister [1999] at para 822
[275] See "Social Policy and Legislative Framework", especially comments regarding parental inadequacy.
[276] Above note 11 After the Removal at p25 (emphasis added)
[277] Mace v Murray (1955) 92 CLR 370 at 380
[278] See - "...the delicate nature of the task..."